The Government Has Gone Back To The Court. What Lies Ahead?
Exactly a month after the Supreme Court started hearing the petition against the extension/re-appointment of Gen. Qamar Javed Bajwa, the federal government led by Imran Khan has ended up in the Supreme Court. This time it only waited six days after the retirement of the former Chief Justice Asif Saeed Khosa.
This time around the government has challenged the court verdict of November 28 through a review petition that also uses the term “appeal”. While legal wizards are still pondering over the text of the review petition or an appeal, many question have emerged.
It can either be an appeal or a review petition, contend the legal experts. You can only file a review petition against the Supreme Court verdict. You can’t file an appeal against a Supreme Court verdict, the legal experts agree. Why have the petitioners used the word of appeal is intriguing, with no clear explanation by the federal authorities.
Without going into the merits of the case, what has baffled legal experts is that soon after the verdict, it was hailed as a big accomplishment of the Imran administration and a big blow to the enemies of Pakistan. Imran Khan himself fired a series of tweets on the heels of the short judgment on Thursday, November 28.
“Today must be a great disappointment to those who expected the country to be destabilised by a clash of institutions. That this did not happen must be of special disappointment to our external enemies & mafias within”, he tweeted declaring it as a victory against “the external enemies” and the “mafias” who wished “ a clash of the institutions” to “destabilize” the country. Not only he hailed the verdict but also paid glowing tributes to the presiding judge, the outgoing Chief Justice Asif Saeed Khosa. “Also, for the record, I have the greatest respect for CJ Khosa, one of the greatest Jurists produced by Pakistan.”, he tweeted. Not only the prime minister praised the verdict but also his entire cabinet with the exception of Fawad Chaudhry went gaga over the verdict.
Hours after the verdict was announced, Farogh Nasim who had resigned only for three days to represent Gen Qamar Javed Bajwa, the attorney general Anwar Mansoor and the Info Czarina Firdous Ashiq Awan held a court at the Press Information Department to cheer the verdict.
During three days of the hearing in the courtroom number 1, the government put up a big pile of summaries and notifications contradicting the previous ones. In the mean time, the govt couldn’t figure out if it wanted appointment, re-appointment or extension of Gen Bajwa. It was clear that the govt wanted Gen Bajwa to stay in office beyond his earlier schedule last day in office, the November 28. The crux of the matter was that the judges believed that the constitution, the Army Act 1952 and the Army Regulations did not permit extension or re-appointment by the government.There were only two options. Either the Prime Minister recommends a new Army Chief and sends the advice to the President to make a fresh appointment under article 243 or the government goes to the parliament and makes necessary legislation to give legal cover to the re-appointment or the extension.
The government gave a written undertaking to the court that it will make the necessary legislation within six months. The court in its short order issued on November 28 and covered in the detailed order on December 16 made it crystal clear that the govt will do the necessary legal spadework within the stipulated period.
Despite the cheering statements of the government leaders, the angry vibes from within the government kept trickling in. The new frontier of political battles – the social media – vented the anger of the ruling party. A nasty campaign against the judiciary was unleashed specially against the Chief Justice Asif Saeed Khosa. It was so intense that Chief Justice himself expressed his dismay over the campaign during those three days proceedings in the courtroom. “I had to ask somebody what fifth generation war is that we are accused of being part of”, he blurted it out.
Now, six days after the retirement of the Chief Justice Asif Saeed Khosa, the government has filed a review petition cum appeal challenging almost the maintainability of the original petition filed by Riaz Hanif Rahi, a known frivolous litigant with known ties with the establishment.
What are the chances of the acceptance of the review petition and a verdict by the court against its own verdict declared just days ago?
Many legal experts, the scribe talked to, are wondering about the same question.
As we await the processing of the petition and the decision of the Chief Justice, chances are that it would be accepted for hearing and a review bench comprising of the two judges including the author judge Justice Mansoor Ali Shah will be formed in the days as the year 2020 knocks on our doors. It is quite possible that the Chief Justice forms a larger bench and adds few more judges into the bench. The possibility of the new Chief Justice Gulzar Ahmed presiding the new bench can’t be ruled out either.
The question is if the Supreme Court will entertain the bizarre request of the government to hold its proceedings in-camera or not. Legal wizards are wondering what the government that has held the banner of transparency under “Naya Pakistan”, is trying to hide that it has made such a request. When it comes to the merits of the case, the arguments from both sides of the aisle have been put out already in the three-day discussion in the court.
Legal experts have said it time and again that only new earth shattering facts can change the verdict in the result of a review petition as it is not considered an appeal, a higher form of request, where you may request almost the retrial of the case. In most cases the decision is maintained after the review petitions are filed, agree the legal experts.
So what happens if the review petition is rejected or accepted in a dramatic turnaround?
If the court rejects the review petition, the government has two options. Either it goes back to the parliament as it had pledged on November 28 in a written undertaking or it purses the option of making a fresh appointment from the senior lot of the lieutenant generals.
But the possibility of the total turn around can’t be ruled out, as it is the discretion of the court. What happens if the court reverses its decision? The preponderance of the arguments in favour of the judgment made on November 28 will hurt the image of the judiciary, believe many legal experts. The govt already has earned the reputation of making gazillion U turns but if the judiciary reverses its verdict it will only hurt its image and the perception of making a verdict under duress will be reinforced whether it is justified or not, they believe. The naysayers will say that after conquering the domains of the polity and media, the judiciary too has bowed. Will that help the image of Pakistan trapped in a hostile neighborhood? Questions abound.
The main political question however is why has the government gone to the court when most political parties in the parliament have already expressed positive vibes to help the requisite legislation seeking extension/re-appointment of Gen Bajwa.
Most pundits agree that the govt has taken a chance under some newfound confidence that they can find a way out without seeking the help of the opposition. Seeking help of the opposition will end the good working relations between the establishment and the opposition and that may shorten the life of the Imran administration, they believe.
Imran administration is jealously guarding the “same page” achievement of the govt and doesn’t want any change in its relationship, believe many analysts.
If the government can succeed in getting a favourable verdict as a result of the review petition, it may give a new lease of life to Imran administration, believe the official quarters. Is that so? The analysts are divided over the govt expectations in case they get a favourable verdict.
“There are no permanent friends but the permanent interests. No partnerships are permanent”, said a cynical analyst.
But what if the review petition is thrown out? “Then all bets are off”, said the same cynic.