December Issue 2019

Will the Chief Justice’s ruling on the army chief’s extension open up a Pandora’s box for the government and the army?

The three-day storm over the extension granted to the Chief of Army Staff (COAS), General Qamar Javed Bajwa, that brought huge embarrassment to the government of Prime Minister Imran Khan, is now over but it has left many questions unaddressed and political implications to be contended with in the days to come.

In its short order, the Supreme Court allowed General Bajwa to continue in his position for six months in return for an assurance from the government that it would legislate to deal with the lacunae, gaps and anomalies in the constitution and laws concerning reappointments and/or extensions in the tenure of the army chief. If the parliament fails to enact legislation within the stipulated period, General Bajwa’s reappointment would become illegal.

Imran Khan’s government faced humiliation in full public view as its legal team was found extremely deficient in defending the government’s position before the three-member bench of the Supreme Court headed by Chief Justice Asif Saeed Khosa. In each hearing, the learned judges found faults with the arguments and solutions put out by the Attorney General over the issue of extension in tenure by three years of the army chief, General Bajwa, notified in August 2019 by the government.

In the Constitution, Article 243, there is no mention of tenure, salary, age or any other conditions for the COAS. The Article only mentions that the president on the advice of the prime minister shall appoint a chief of army staff and determine his salary and allowances. No other law exists to deal with this matter. The tenure is fixed in the notification issued by the government. In senior lawyer, Aitzaz Ahsan’s view, the court cannot take up this matter and it is the prerogative of the prime minister to appoint an army chief. But the learned judges of the Supreme Court raised questions and asked for clear mention of all these conditions in the law or the Constitution.

True, in the past, the matter was always handled according to the established conventions and the issue pertaining to the appointment and extension of the army chief was not elaborated in the Constitution and the law. No judicial intervention was made when a three-year extension was granted to General Ashfaq Pervaiz Kayani as COAS in 2010. The Imran Khan government acted as per tradition fulfilling the constitutional requirement. It did not anticipate that this time round the apex court would step in and go into minor legal details over this issue and that too at a time when just three days remained in the completion of General Bajwa’s tenure.

One can argue that the Supreme Court could point out defects and gaps in the law for the appointment and extension of the army chief by conducting in-camera proceedings and could assist the federal government in addressing the issue, but it opted for an open hearing, causing widespread public anxiety and political uncertainty. The judiciary asserted its role and independence over quite a sensitive issue which has wider political implications as well. The original petitioner of the case, Riaz Hanif Rahi, a local lawyer of Islamabad, sought to withdraw his petition on the second day of the hearing, but the bench turned down his request.

Interestingly, in the run-up to the hearing over the extension issue, two significant events took place in which PM Imran Khan’s government might have arguably irked the superior judiciary. The PM, in a public gathering, in what can be termed as an oblique criticism of the top judiciary, asked the CJ to bring uniformity in the application of the law for both the powerful and the weak and to restore public confidence in the judiciary. Imran Khan was talking against the backdrop of the Lahore High Court’s verdict in which it allowed former ailing premier Nawaz Sharif to go abroad without submitting an indemnity bond, as desired by the federal government. Imran Khan seemed unhappy over the abolition of the indemnity condition, though he did not say it in so many words.

Taking exception to the PM’s remark, Chief Justice Asif Khosa said that the judiciary should not be taunted regarding the powerful, as among other things it had disqualified two sitting prime ministers in the past.  In the same address, the CJ said that the judiciary was going to announce a verdict in the case of an army chief, alluding to the treason case against General Pervez Musharraf in a special court. The court had fixed the date of the judgement though General Musharraf did not take part in the proceedings. The very next day the federal government filed an application in the Islamabad High Court requesting the court to stop the special court from announcing the verdict in the Musharraf case.

Given this backdrop, when a three-member bench of the SC took up the matter of the army chief’s extension,  the government should have realised the sensitivity of the issue and sought time to introspect and ponder over it and come up with solid answers, but it did not. During the proceedings, it was evident that while the judges were well-prepared and well-versed in the minor details of the relevant constitutional and legal provisions, the Attorney General and government lawyers fumbled and kept changing their positions.

It is inexplicable how the federal government goofed up on an issue so critical to the stability of Imran Khan’s tenure as prime minister. It is considered a duty of the principal secretary to the PM and the cabinet secretary to apprise the prime minister and federal cabinet of the legal procedures and relevant constitutional and legal provisions involved while making a decision on such a sensitive matter. There is an army of law officers at the disposal of the federal law ministry and the office of the Attorney General who could have guided the government, but they were found inadequate when the judges started legal hair-splitting.

The Law Minister, Farogh Naseem resigned to defend General Bajwa before the SC, though it was under his watch that the controversial extension was notified. The casual approach towards such a sensitive matter extended to the legality of the original notification as well as at least two fresh, but just as flawed summaries and notifications put out before the SC. The Supreme Court critiqued a hastily-crafted amendment in the Army Regulations (Rules) saying that the impugned Regulation 255 had nothing to do with the COAS’s appointment or extension. The judges also questioned the legality of the argument by the government’s lawyers that the extension and reappointment was made under Article 243 of the Constitution.

Although leaning on the side of restraint, the SC opted for a middle course. It neither stamped the seal of approval on the extension nor did it declare it illegal. It has given the government an opportunity to fill the legal gaps. Lawyer S M Zafar said: “In view of the SC order, the parliament has to start with a clean slate, ignoring past practices or orders and apply its mind to make a law where none exists. The parliament has to lean against extension and provide standards for extension and determine tenure of extension relevant to security needs.”

The crisis is over for the time being but the possibility remains that the army may object to fresh legislation over the issue by arguing that each extension would thus be open to judicial review. The SC hearing of the extension case has much larger ramifications for the discipline and working of the armed forces. Many civil institutions such as the police and civil bureaucracy in the country have suffered badly owing to political interference in their internal functioning. The Pakistan Army survived because, as an institution, it guarded its internal working and its chief had a stable tenure.

The judicial review of the army chief’s extension may open the door to meddling in the affairs of the army. There is a possibility that in future people may challenge military appointments on one or other pretext and the court may decide to hear the case and summon the records of all generals. The army is a disciplined force and is not similar to other civil institutions like the Pakistan Administrative Service. In the army, the relationship between the officer who leads and the subordinates who are led is quite delicate and cannot be interfered with from outside without producing adverse consequences. It is argued that this kind of judicial review will harm the level of confidence troops have in their officers.

For PM Imran Khan, the issue of General Bajwa’s extension has serious political implications. He stood solidly behind the extension granted to COAS General Bajwa and it seemed the government wanted General Bajwa to stay till near the end of its term. One reason could be that the PM and COAS enjoy mutual confidence and share policies on crucial foreign and defence issues such as the Afghan peace process, CPEC, the Kashmir issue and relations with the US.

Importantly, Imran Khan’s government does not enjoy a simple majority in the National Assembly and is dependent on the support of smaller parties from Balochistan, MQM Pakistan, PML-Q, independent members and other small groups that are said to be under the influence of the establishment. During the last 15 months, Imran Khan has made little effort to win over these allies on his own. Therefore, it is feared, once the establishment turns its back on Khan, he might lose the support of his allies and won’t survive in office.

The SC’s intervention over the army chief’s extension might have left Prime Minister Imran Khan somewhat bruised, but in the larger perspective it has strengthened the country’s democratic institutions. It has affirmed the supremacy of parliament by maintaining that the issue of re-appointment and/or extension of the COAS can only be determined by the legislature. Also, in future, a prime minister may not face unseen pressures and back-door manipulations for granting extension to an army chief as has been witnessed in the past. Once clear-cut laws and rules are framed on this issue, the office of the prime minister will gain strength.

As for now, the Imran Khan government will have to make changes in its political strategy and be flexible towards opposition leaders. It has submitted an affidavit assuring the court that within six months it will act on the court’s orders, for which it is required to make legislation with at least a simple majority in both the houses. It might be easier to pass the law in the National Assembly but not in the Senate, where the PTI is in a minority. The PM might therefore have to hold negotiations with the opposition and legislate on the anomalies pertaining to the army chief’s extention in the Constitution

Empowered CJCSC?

Some defence experts suggest that now that the issue of the COAS’s appointment has come up for discussion and legislation in parliament, it should be settled in a comprehensive manner. They believe Pakistan should empower the office of Chairman Chiefs of Staff Committee with more powers such as the newly-created office of Chief of Defence Staff in India. At present, the Chairman Chiefs of Staff Committee has no operational or administrative control over any service, be it the army or navy or air force. It is merely a ceremonial position. When the office was created in the 1970s, the purpose was to gradually increase its powers, ensuring diffusion of powers between the CJCSC and the three services chiefs, but it did not materialise.

In India, Chief of Defence Staff (CDS) is a powerful position that will be in operational control of three services with powers of promotions and postings of all senior officers starting from one-star generals and their counterparts in the air force and the navy. The CDS will also lord it over functions such as ISPR, procurement, military engineering, medical services and welfare. This will lead to a better coordinated, joint working among the three forces and diffusion of power in the armed forces. This could also be helpful in synergetic response during a war, something many military experts felt was missing during our previous wars with India.