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January 3, 2020

COAS’ tenure extension: Govt seeks suspension of Supreme Court judgment operation

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January 3, 2020

ISLAMABAD: The federal government has requested the Supreme Court (SC) to suspend or grant stay in the operation of its judgment on the extension of the service of Chief of the Army Staff (COAS) General Qamar Javed Bajwa besides constituting a larger bench comprising five judges to hear the review petition.

The federal government through the Ministry of Defence, prime minister, president and General Qamar Javed Bajwa, Chief of the Army Staff (COAS) have filed a civil miscellaneous application (CMA) in the Supreme Court. On December 26, the federal government also filed a review petition against the verdict of the Supreme Court on the COAS extension.The federal government through Secretary, Ministry of Defence, Prime Minister of Pakistan, Prime Minister’s Office, President of Pakistan and COAS General Qamar Javed Bajwa had filed that petition for leave to appeal under Article 188 of the Constitution against the apex court judgment delivered on November 28.

In the two CMAs, the government prayed that the chief justice who has plenary powers may kindly be pleased to constitute a larger bench comprising five judges to hear the review petition filed in the matter, in the larger public interest to set the precedent in the right direction. The petitioners have a strong prima facie case to succeed hence the operation of the impugned judgment may be suspended or stayed till the final decision of the civil review petition”, the government submitted adding that the balance of convenience lies in favour of the petitioners. “If the injunction as prayed is not granted, the petitioners will suffer irreparable loss”, the government contended and prayed to suspend or stay the operation of the impugned judgment of November 28, 2019 in the interest of justice.

The Jurists Foundation through its Chairman Riaz Hanif Rahi, Advocate Supreme Court of Pakistan, who had challenged before the Supreme Court the extension of General Qamar Javed Bajwa as Chief of the Army Staff was made a respondent in the review petition. In its review petition, the government had submitted that the impugned judgment is bad in law and facts and is completely without jurisdiction, void ab initio and of no legal effect.

On November 28, a three-member bench of the apex court headed by former Chief Justice Asif Saeed Khan Khosa had granted six-month extension in service to the Chief of the Army Staff General Qamar Javed Bajwa after the government gave an undertaking to make proper legislation within a period of six months specifying the terms and conditions of service of the COAS. General Bajwa was set to retire on November 28 upon completion of his three-year term, however, the government appointed General Qamar Javed Bajwa as COAS under Article 243(4)(b) of the Constitution with effect from November 28, 2019.

Earlier, in August Prime Minister Imran Khan extended General Bajwa's tenure through a notification, however, the Supreme Court on November 26 suspended the notification. The court had held that the recent appointment of General Qamar Javed Bajwa as COAS will continue for six months subject to the legislation to be made by the government, determining his tenure and other terms and conditions. The government had contended that the errors in the impugned judgment, pointed out below, are so manifest that they float on the surface. It is respectfully pointed out that if the said errors had been noticed prior to the rendition of the impugned judgment, this court would have arrived at a different conclusion.

The review pointed out that in para 45 of the impugned judgment it has been held that although where the law is silent an institutional practice can resolve the controversy, but for a constitutional post in the “Service of Pakistan” it is “inconceivable” that the matter is left unregulated to continue forever.