Thursday June 20, 2024

COAS extension case: SC unimpressed by govt's legal wizards' performance

November 28, 2019


By Tariq Butt

ISLAMABAD: What the official legal wizards have so far produced to satisfy the Supreme Court on the question of reappointment/extension of Gen Qamar Javed Bajwa as the Chief of the Army Staff for another three-year term has brought immense embarrassment and chagrin to the government and has failed to hit the target achieving the desired objective.

“We are giving you another day to find solution,” Chief Justice Asif Saeed Khosa, who heads a three-member bench, told Attorney General Anwar Mansoor Khan after knocking down what the government hurriedly did by holding two sessions of the federal cabinet on Tuesday after apex court ended its proceedings. These huddles were intended to take care of the leading legal and procedural questions raised in the judicial order.

“There is still time. The government should step back and assess what it is doing. It should not do something like this with a high-ranking officer. It is appointing the Army Chief in a way that is not even followed in the appointment of an Assistant Commissioner. The Army Chief has been made a shuttle cock,” the top judge remarked.

A simple notification that is always easily drafted by a Law Ministry official or other government officer was not properly written even on the advice of the legal brains. There seems to be a grave problem somewhere that has complicated the official stance, which is thus far gripped by unheard of clumsiness, haphazardness and incompetence.

Two glaring but awkward examples that the bench pointed out displayed that not even an iota of serious thought was given in handling the most sensitive issue. One, Prime Minister Imran Khan advised President Dr Arif Alvi the reappointment of Gen Bajwa as the army chief but the latter notified it as his extension.

Two, the much talked about Regulation 255 that was amended by the government to provide the word “extension” of the incumbent army chief deals with the officers and not the commander. “It did not concern the army chief and is regarding those officials who have retired or have been expelled from service”, the Chief Justice noted.

Ironically, the same legal team – the attorney general, former Law Minister Dr Farogh Naseem, lawyer Babar Awan and others – who spawned the unsettling changes were quickly called by the prime minister for consultation after the apex court concluded the day’s proceedings to “find a solution” to the satisfaction of the Supreme Court.

While wrapping up the hectic hearing, the Chief Justice asked the government side to answer on Thursday the questions: What are the reasons for reappointment/ extension of Gen Bajwa? What procedure and process has been adopted for that? What is the legal position of the government? Another question that kept dominating the proceedings was: whether a retired officer can be appointed as the army chief.

Justice Khosa pointed out that the matter of the period of Army Chief’s tenure is very important. “In the past, five or six generals have granted themselves extensions. We will look at this matter closely so that this does not happen in the future. This is an extremely important matter and the Constitution is quiet about this. This is about the matter of extension and reappointment.”

The attorney general made a rather blunt assertion when he urged the apex court “not to be so strict about the law”. “Sometimes, the stick can break from stiffness.” However, he was asked by the Chief Justice to first present his legal arguments.

When Anwar Mansoor read out the oath sworn by officers appointed in the army, the Chief Justice told him that the oath further says that they would lay down their lives if need be. “This is a very significant thing. [But] ‘I will never involve myself in any political activities.’ This sentence is also part of the oath. It is a very good thing to stay away from political activities.”

Meanwhile, intense public gaze, which was unprecedentedly shifted to the Supreme Court in late 2016 with the opening of hearings against the then Prime Minister Nawaz Sharif in the Panama case, intensified a day earlier once again.

The reason is obvious: Gen Bajwa’s reappointment/ extension as the Army Chief is under debate in the highest judicial forum of Pakistan for the first time.

Three military dictators – Ayub Khan, Ziaul Haq and Pervez Musharraf-, who imposed martial laws, kept extending their own tenures at an average of ten years for being the chief executives of Pakistan. Gen Ashfaq Pervaiz Kayani was the only army chief who was given another three years’ tenure by the civilian government of the Pakistan People’s Party (PPP). Its earlier regime had offered extension to Gen Abdul Waheed Kakar but he had declined and retired after exhausting his original three-year term.

The question of recurrent extensions never came up before the Supreme Court as it was never raised by any one. This is the first time that the Supreme Court is seized with this question after a plea was filed by a habitual petitioner, who has a track record of knocking at the doors of superior courts against the prime ministers and presidents of Pakistan.

Focus of all and sundry remained concentrated on the Supreme Court as it continued nerve-shattering proceedings. Each and every observation given by Justice Khosa and other judges and arguments advanced by the attorney general was keenly listened to and monitored. Decision was expected any time. However, the back-to-back proceedings were adjourned for another day.

Every time, months before reaching the retirement date a public debate ensues about the reappointment/ extension of the tenure of the incumbent army chief. Major political parties were careful this time too as they have mostly been on such occasions. Even after the apex court took up the present case, they avoided any partisan comments and most of them said that they would not give their reaction as the case was sub judice.

Two articles, 245 and 243, of the Constitution extensively figured out in the proceedings. Article 243 says the federal government shall have control and command of the Armed Forces. Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. The President shall subject to law, have power to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and to grant Commissions in such Forces. The President shall, on advice of the Prime Minister, appoint the Chairman, Joint Chiefs of Staff Committee; the Chief of the Army Staff; the Chief of the Naval Staff; and the Chief of the Air Staff, and shall also determine their salaries and allowances.

Article 245 says the Armed Forces shall, under the directions of the federal government defend Pakistan against external aggression or threat of war, and, subject to law, and act in aid of civil power when called upon to do so. The validity of any direction issued by the federal government shall not be called in question in any court. A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245: Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power. Any proceeding instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting.