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!