Member, National security advisory board
Even for a country used to lurching from crisis to crisis, the events of last week revolving around the three-year extension to Pakistan army chief General Bajwa were unique and unprecedented. The stakes were high since without a positive decision, he would have retired at midnight on November 28. This is the only case in Pakistan’s chequered history where the army chief’s extension was subjected to judicial scrutiny and found wanting. Previously, extensions were accepted as the norm. In the end, the Supreme Court (SC) drastically reduced the extension to six months and made it conditional on the government’s assurance that it would legislate on the army chief’s appointment and conditions of service within six months.
The SC suspending the extension on November 26 was based on the infirmities of the extension order itself. First, the PM passed an order appointing Bajwa for a second term on August 19, even though constitutionally the President is the appointing authority; the mistake was sought to be rectified the same day by sending a summary to the President for extension that was approved the same day. The flaw was that neither the PM nor the President could do so without cabinet approval. Hence, on August 20 another summary was moved for cabinet approval. Of the 25 cabinet members, only 11 agreed to the proposal that was less than the majority required. Even so, after the so-called approval the matter was not sent to the PM or the President again for orders.
The appalling incompetence was further reinforced when the court pointed out that while the PM’s revised summary of November 26 mentioned ‘reappointment’, the notification issued by the President said ‘extension’. Further, on November 27 the court held that the modifications made by the cabinet in the relevant army rules on the previous day did not actually even apply to the army chief. The government had blundered again.
Matters were made worse when the government told the SC on November 26 that the President had approved the summary for extension on August 19. However, President Arif Alvi had earlier said in a TV interview on September 12 that he had not received the summary for extension till then. Clearly, either the President was lying or the government was. In either case it was hardly a situation any government would have liked to be in.
The SC looked into three aspects of the case: the law — whether there were rules governing extensions of an army chief; the procedure — whether the government followed the laid-down process; and the rationale of the extension. On all three counts, the government was unable to convince the court. In fact, the SC was quite scathing about the justification of the regional security situation for the extension. It observed, ‘If the regional security situation reasoning is accepted, then every army officer would want a reappointment.’
The compulsions for Imran Niazi for giving Bajwa an extension were more political than security related. After all, he had hailed Bajwa as a ‘democratic-minded general’, and his reasoning would have been that Bajwa would be supportive of the PTI government. The government’s increasing reliance on it will make the military even more dominant in civil governance.
Two other aspects of the case are important. One, a surprising element in the controversy was the admission of the attorney general that none of the laws and rules governing the Pakistan army expressly referred to the reappointment or extension of a serving army chief. The cabinet sought to rectify this legal lacuna by amending the Army Rules and Regulations Section 255, incorporating the words ‘extension in tenure’ to justify the fresh extension order. The court, however, held that the section could be invoked only after an officer had retired from service, and in any case did not pertain to the appointment of the army chief but of other officers!
Second, the Bench sought to put at rest any controversy about the timing of the judicial scrutiny. It observed that legal issues about previous extensions had never been raised. Since the issue had come up now all legal aspects of the matter would be reviewed. Meanwhile, the army’s psy-war has been activated against the judges. As the Chief Justice (CJ) observed, propaganda was launched against them by allegations that they were CIA agents and working on an Indian agenda. Interestingly, during arguments, the attorney general made a veiled threat to the court when he urged it ‘not to be so strict about the law. Sometimes, the stick can break from stiffness’.
The track record of advocate Riaz Hanif Rahi, who had challenged the extension of Bajwa, indicates that he has invariably filed references against persons inconvenient for the army like former CJ Iftikhar Muhammad Chaudhry and Justice Qazi Faez Isa and also challenged the special court set up to try former President Musharraf for treason, and so on. His antecedents strongly suggest that he was instigated to challenge Bajwa’s extension by a section of the army officers who were adversely affected by it.
The case has shown a unique assertion of judicial authority over the holiest of holies in Pakistan — the serving army chief himself. In the process, Bajwa has been embarrassed and his position made controversial. What is also glaring is the abysmal ineptitude and incompetence of the government that was seen unable to deal with even procedural matters like issuing a notification. Questions would inevitably be asked about the capability and fitness of the ‘selected’ PM. Bajwa will henceforth be closely identified with the government, and especially its failures. This is not something that would further the institutional interests of the army.
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