The Supreme Court of Pakistan Thursday (Nov 28) limited the three-year extension in the term of Chief of Army Staff General (COAS) Qamar Javed Bajwa to six months. On Wednesday (Nov. 27), a three-member court bench led by the Chief Justice Asif Saeed Khan Khosa, who retires in less than one month, suspended Prime Minister Imran Khan's August 2019 order to extend the term of General Bajwa by three years.
The Jurist Foundation
The three-judge bench of the apex court took up, on Tuesday (Nov. 27), an application seeking the withdrawal of a petition against the extension/reappointment of the army chief. The application was submitted by The Jurist Foundation, an unknown group, which had earlier challenged General Bajwa's extension/reappointment through a controversial attorney, Riaz Hanif Rahi, requesting the apex court to declare it null and void, and illegal.
When the court assembled on Tuesday, a hand-written application from the petitioner was submitted to the bench seeking withdrawal of the petition. The Chief Justice remarked that the application was not accompanied by any affidavit and it was not known if the withdrawal of the petition was voluntary. He rejected the application and took up the petition under Article 184(3) of the Constitution as it involved a question of "public importance". The court issued notices to the federal government, the defense ministry and General Bajwa, and adjourned the hearing until Wednesday.
General Bajwa was due to retire on November 29. According to a statement issued by the Prime Minister's office on November 21, the notification for his reappointment was issued on August 19, which said that he would continue to serve as COAS until November 2022.
Imran Khan's remarks about judiciary
The drama began on on November 18, when Prime Minister Imran Khan asked Chief Justice Khosa and senior judge of the Supreme Court, Justice Gulzar Ahmed, to come forward and restore public confidence in the judiciary. He said there was a perceived disparity in how the powerful and common people were treated in the country's judicial system. He added he was ready to support the judiciary to change the perception and restore public confidence in the institutions.
Two days later, on November 20, the Chief Justice issued a scathing rejoinder advising Imran Khan not to "taunt the judiciary" in any way. He implied that before 2009 judiciary was not independent when he said the judiciary is independent as a result of the 2009 lawyers' movement, and working in accordance with the law and the Constitution. He recalled that the post-2009 judiciary was the one which had convicted one prime minister [Yousaf Raza Gillani] and disqualified another [Nawaz Sharif], and was soon going to decide the high treason case against a former army chief [General Pervez Musharraf].
Justice Khosa acknowledged that in the past there was a perception that courts were only hearing cases of the powerful people while cases of the weak were not taken up. However, he added, presently around 3,100 judges and judicial magistrates in the country had decided 3.6 million cases.
First-ever suo motu notice of Chief Justice Khosa
During his 11-month term as the top judge of Pakistan, Chief Justice Khosa had not taken any suo motu notice of legal motions. This is the first-ever suo motu notice when he rejected the application to withdraw the petition challenging the extension of tenure of General Bajwa as the Chief of Army Staff.
Interestingly, the Chief Justice was against taking suo motu notice. Opposing judicial activism, he said on November 23 that the Supreme Court did not need to "jump in" by taking suo motu notice at the premature stage of a case, particularly when it is the court of last resort. If the court interfered in a case on day one, the whole process of justice would be retarded. He further said he had handled some cases in which the apex court had taken suo motu notice years ago, followed by certain directions, but later it transpired at the appeal stage that the facts of the case were entirely different.
This is the first time that Chief Justice Khosa, who was sworn in as the topmost judge on Jan 20 this year, has exercised powers under Article 184(3) [suo motu authority] just 24 days before his retirement. The order issued by the three-member bench headed by him said that the court-associate had produced before it a handwritten application statedly submitted by the petitioner [Riaz Hanif Rahi, advocate] seeking permission to withdraw the petition. The petitioner had failed to appear in person and no one else appeared on his behalf. The application received did not carry any date and was not accompanied by any affidavit.
During Justice Khosa's incumbency, there were a number of vociferous public calls to take suo motu notice of various grave incidents that caused immense nationwide uproar but he resisted them. He was also repeatedly requested to intervene when the Sahiwal massacre took place.
The Supreme Court verdict