AN EXTENSION UNDER CHALLENGE

THE SUPREME COURT ASSERTS ITSELF

The short order passed by the Supreme Court of Pakistan on 28 November, 2019, against extension of tenure of Chief of the Army Staff (COAS), is a landmark in the legal history of our judiciary. The Chief Justice of Pakistan (CJP) Mr. Justice Asif Saeed Khosa and his brother judges on the bench need to be commended for the courage and grit that they have exhibited in not only taking up the case in full public view but also passing an order that, to say the least, would be unpalatable to the powers that be. Why? Because such cases in the past were taboo and no government, or shall we say no branch of government, including the Executive, the Judiciary and the Legislature, could even think of entertaining a case involving the army what to speak of a case involving the COAS directly. Even a generally conservative newspaper like Dawn called the order passed by CJP Khosa suspending the Notification granting the COAS an extension as ‘stunning’! The Notification was suspended on grounds of procedural flaws and the fact that The Army Regulations had no provision for such an extension. Dawn had this to say about the case: “This is a landmark case: unprecedented questions are being raised, threatening to upend the accepted status quo, and holding a mirror to society’s psyche.”

No sooner was the order suspending the Notification granting the COAS an extension passed, social media was flooded with an anti-Supreme Court in general and an anti-CJP in particular, tirade. People ‘dared’ the CJP and reminded him that he was no one to suspend a Notification issued by The President and Prime Minister and also that he was not God! Oblivious of the fact that, thankfully, neither were the President and Prime Minister nor was the COAS himself, God! 

And then came what can only be termed as a ‘comedy of errors!’ Within hours of the Supreme Court’s order the government set about amending the Army Regulations to provide for an extension in the COAS’s tenure. And ended up amending the wrong Regulation which did nothing to regularize his extension! The initial decision of the Cabinet recommending the extension which had the assent of only 11 of the 25 member Cabinet was revisited. And the initial stand of the government that the PM had recommended the extension to the President, who had assented to the same was also questionable. The Law Minister was made to resign so that he could represent the COAS at the hearing. Why was this necessary? Why was the government so ingratiated to the COAS that instead of letting him chose a lawyer it sacrificed the Law Minister to defend the COAS? Is it right for the government to defend an individual rather than to stand by an institution? These questions were thrown to the winds by a government which has been barking hoarse that it is out to restore public confidence in national institutions! Notwithstanding that the PM is on record that an extension in the COAS’s term adversely affects the morale and standing of institutions. Dawn again puts it brilliantly: “The episode lays bare the PTI government’s authoritarian streak and its lack of maturity — a lethal combination.”

The hearing again turned into a cliff-hanger. The Supreme Court in the order of 28 November, 2019, had this to say about the incompetence displayed by the government: “during the last three days the Federal Government has moved from one position to another referring to it as reappointment, limiting of retirement or extension of tenure and has also interchangeably placed reliance on Article 243(4)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) and Regulation 255 of the Army Regulations (Rules), 1998.”

The Court was also dismayed at the fact that the Army Regulations were never publicized or published. The Attorney General had to fall back on the flimsy justification that the extension was granted on the basis of a practice being followed by the Army – even though there was no legal basis for such a practice!

However in order not to upset the applecart the Supreme Court passed a well-reasoned and extremely well-worded order that clearly indicates that the governments stand on the issue was confused, irrational and with no basis in law or the Constitution, but in the interest of continuity and to avoid a crisis like situation to takeover it allowed the COAS to continue in office for another six months to allow the government time to set-up a legal framework for an extension in the term of a COAS.

With regard to the government’s justification that the extension was granted in view of ‘the regional security situation’ the Supreme Court said that such a situation was for the army to handle as an institution not an individual’s task. The last paragraph of Dawn’s editorial on this needs to be quoted: “The court has also rightly noted that the regional security situation — the official reason given for the extension — is for the army to handle as an institution, rather than being an individual’s job. Surely there are other officers more than capable of leading the army. Gen Bajwa’s next step will determine whether he is thinking of himself or his institution.” The last line needs to be pondered upon by all of us especially General Bajwa!

AN EXTENSION IN QUESTION

The Chief Justice of Pakistan (CJP) Mr. Justice Khosa was the target of an unbridled video tirade by – quite naturally – an ex-army gentleman Mr. Iftikhar Rehman. Don’t know how far up Mr. Iftikhar got in the Army but he is certainly a nincompoop as far as the Constitution and law are concerned. His tone and manner made it quite obvious he had nothing substantive to say because we have a saying in the legal profession that goes like this: “If you have the facts on your side in a case bang the facts at the jury! If you have the law on your side bang the law at the Judge. But if you have neither on your side just bang the table!” And banging the table was all that Mr. Iftikhar was doing!

His first point was that when the Lahore and Islamabad High Courts were issuing bail orders for the Sharifs the CJP was quiet. Why? A lawyer who has just come out of law school will tell you that any order passed by a High court is open to challenge in The Supreme Court. If the government felt aggrieved by these orders it should have filed appeals. Why didn’t the government do so? And the CJP is not authorized to interfere is such matters either by The Constitution or any law.

The less said about the ‘wisdom’ of The President and The Prime Minister the better! But Mr. Iftikhar goes on to ‘dare’ the CJP as to who is he to challenge the ‘wisdom’ of The President and Prime Minister? The simple answer to that is that The Constitution mandates that the High Courts and The Supreme Court shall have the power to examine both the legality and validity under law and the Constitutionality of any law or actions taken by any authority, “including any Government exercising any power or performing any function” within its jurisdiction. (See Articles 199 and 184 of The Constitution of Pakistan, 1973) It is these courts that are supposed to act as guardians of our Fundamental Rights under these Articles of The Constitution. (The only thing we as a people can complain about is that in the past the Supreme Court and The High Courts have failed to do their duty under The Constitution by allowing our Fundamental Rights to be trampled upon so many times in the past and I will revert to this in a future post soon.) And what is the status of the document granting extension? It is a mere Notification! It is not an Act of Parliament, it is not an Ordinance, it is not even a Regulation or Rule approved or made with the approval of Parliament. It is just a Notification issued by the government which is considered as the lowest rung of law making! And Mr. Iftikhar ‘dares’ the CJP for suspending that! It only shows his ignorance! And I say that with respect as the law is not his profession and he is not supposed to know it. But then he should not put his foot in his mouth on a subject he does not understand!

And then Mr. Iftikhar goes on to threaten the CJP that ‘the people will tear you apart…blah blah blah!” I won’t stoop so low as to even answer that! Oh yes even elementary knowledge would tell you that The PM heads the Executive branch, The CJP heads the Judicial branch, and The Parliament is responsible for lawmaking and neither can step into the role of the other.

The only thing I agreed with in that video charade was that the CJP is not God! To put the record straight neither are the President, The PM or even Mr. Iftikhar himself God! And Thank God for that!