CB takes swipe at brother judge over Bajwa extension law

While discussing person specific legislations, some members of a constitutional bench of the Supreme Court on Tuesday alluded to an apex court order— authored by SC senior puisne judge Syed Mansoor Ali Shah — about granting six-month extension in a former army chief’s tenure.

The cabinet of former prime minister Imran Khan approved a three-year extension for General Qamar Javed Bajwa in August 2019 in view of “a worsening national security situation in the region”.

On November 26, 2019, just days before the end of his tenure, the Supreme Court suspended the extension, citing a series of irregularities. It ordered the PTI government and the army to produce legal provisions and detailed arguments on the reasoning behind the move.

This suspension sparked a serious crisis, leading to a possible “clash of institutions”.

However, a bench led by former chief justice Asif Saeed Khosa and comprising justice Mian Mazhar Alam Khan Miankhel and Justice Shah on November 28 gave the government 6 months to legislate and iron out the lacunae in the reappointment or extension of tenure of an army chief.

This verdict paved the way for General Bajwa to stay on until a new law determined his terms of service.

On Tuesday, during hearing of the intra-court appeals filed against an earlier SC order annulling trials of May 9, 2023 rioters in military courts, the discussion veered to various legislations and the judiciary’s role in their enactment.

The head of the seven-member bench, Justice Aminuddin Khan, remarked that Salman Akram Raja, the lawyer for one of the May 9 convicts, had referred to India in his arguments.

“Raja stated that in India, appeals against military trials go to an independent tribunal. The question is whether the right to appeal in India was granted through parliamentary legislation or judicial directives?” he asked.

Imran’s lawyer Uzair Bhandari responded that he was not aware of the details regarding this matter.

Justice Muhammad Ali Mazhar noted that parliament legislated to give the right of appeal to Indian spy Kulbhushan Jadhav, who had also been awarded capital punishment by a military court.

“Before us is the example of Jadhav. He was granted the right of appeal through special legislation, and the right of appeal was given due to the decision of the International Court of Justice,” the judge noted.

 

Justice Naeem Akhtar Afghan remarked that there is also a case regarding the extension of a former army chief’s tenure. He said there was no law for extending the army chief’s tenure and parliament legislated for the extension on the instruction of the Supreme Court.

The head of the bench, Justice Aminuddin Khan, lamented that “all people” put their heads together just to issue a notification for the extension of an army chief. “This was our situation,” he remarked.

During the argument of former prime minister Imran Khan’s lawyer, the bench members also discussed the PTI founder’s recent letters written to various state functionaries.

Uzair Bhandari, while referring to the argument of famous lawyer Aitzaz Ahsan with regard to manner in which trials take place in military courts, stated that even in cases of trial which are conducted inside a jail premises, the lawyers of an accused are not even allowed to take “a shred of paper”.

The trials of PTI founder Imran Khan in various cases have been held inside Rawalpindi’s Adiala Jail.

Justice Aminuddin Khan took exception to the claim, asking as to how entire letters were emerging out of the same prison. Justice Musarrat Hilali also agreed with Justice Khan, adding that letters written from jails are discussed these days.

Last month Imran Khan wrote a letter to Chief Justice of Pakistan Yahya Afridi. This letter was followed by a series of three other open letters addressed to army chief General Syed Asim Munir.

The PTI founder’s lawyer argued that Pakistan’s GSP+ status is at risk as the European Union (EU) does not view the military trial of civilians favorably.

Justice Jamal Mandokhail remarked that fundamental rights are a constitutional requirement and cannot be subject to any international benefit. Justice Hilali stated that fulfilling international obligations is the responsibility of the federal government, not the Supreme Court.

Bhandari contended that a soldier’s oath states that an officer’s order is more important than life itself. Justice Hassan Rizvi questioned if he was implying that the army can take action only during wartime but not in case of an attack at “home”.

The lawyer argued that this mindset must change so that the army can do everything. He questioned why the Lahore corps commander house was not defended during the attack on May 9, 2023

Justice Musarrat Hilali remarked that he was saying one thing, while his client, Imran, said something else. Addressing the lawyer, she said, “Your client says he will only talk to those in power.” Bhandari declined to comment on “matters outside the courtroom”.

However, Justice stated that it was not about politics rather it was a reality.

Justice Aminuddin Khan inquired if any member of the assembly had ever raised his voice against the Pakistan Army Act, 1952 in the assembly. “Has any member ever introduced a private bill against the Act?” Bhandari stated that the matter was now before the court.

The bench will resume hearing of the case today.