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!