In what is being termed as ‘judicial restraint’, a three-member bench of the Supreme Court of Pakistan (SCP) headed by Chief Justice (CJ) Asif Saeed Khosa allowed a six-month probation period to Chief of Army Staff (COAS) General Qamar Javed Bajwa.
He will now be allowed to stay in office for that time. Within this period, the government will have to undertake necessary legislation to determine the contours of the most powerful office in the country.
Once again finding glaring omissions and contradictions in the third summary by Prime Minister Imran Khan, for a fresh appointment of the outgoing COAS for a tenure of three more years, the court showed its bewilderment on how a sitting officer be freshly appointed while in office.
Similar was the reaction of the SCP about the extension or re-appointment of General Bajwa. How could a retired officer be appointed as COAS?
Since the tenure of the office of the COAS is also not defined in the Pakistan Army Act or Army’s Rules and Regulations, the SCP also rejected a three-year added tenure as sought by the government.
The last three days of judicial intervention under Article 184(3) of the Constitution has put the Imran Khan government in a most embarrassing position as it continued to fumble over three summaries of the PMO and the presidential notifications.
Mafias who have stashed their loot abroad and seek to protect this loot by destabilising the country.
— Imran Khan (@ImranKhanPTI) November 28, 2019
Yet it failed to present any legal or constitutional justification for the extension of the tenure of the COAS.
The mishandling added fuel to general criticism about the extension in the services of army chiefs — almost all army chiefs have been extending their tenures on their own during periods of prolonged martial law.
Despite the 18th Amendment, even professional army chiefs like General Kayani have tried to manoeuvre extra tenure, to the resentment of the armed forces’ rank and file.
For the first time in Pakistan’s history, the extension or reappointment of a sitting COAS for yet another term has put the extension of General Bajwa in legal jeopardy.
The Chief Justice ridiculed the ministry of law for having messed up the procedure of appointment. The first letter of appointment was issued by the PMO, signed by the PM, on August 19 and the summary was approved on the same day by the President, who had in a TV interview on September 12, shown his ignorance about the summary.
Then on August 21 the Cabinet approved another summary but it was not signed by the President.
The SCP rejected the summary of appointment and asked the government to come with clear orders. Again, the Cabinet met, approved a summary for “re-appointment” and the President, on the PM’s advice, issued the order for “extension”.
That was also rejected by the SCP.
The third summary, presented on Thursday, November 28, was also overturned by the bench, which asked the Attorney General and General Bajwa’s attorney to amend the summary excluding a reference to SCP, omitting the three-year tenure and showing commitment to bring appropriate legislation within six months. In its order, the SCP restricted the extension of the chief’s tenure to six months without providing justification to the extension, which remains without legal fortification.
Even though the SCP avoided creating a crisis of command in the Pakistan Army as this was the last day of General Bajwa’s term, its decision fell short of logical conclusion.
On the same day, it is perhaps a coincidence that the Islamabad high court restrained the Special Court in General Musharraf’s treason case from announcing its decision and has almost reopened a closed case as desired by the Ministry of Interior headed by Brigadier Ejaz Shah.
The Supreme Court of Pakistan has rather thrown the ball back to the executive and the parliament.
With the humiliation of the Khan government, weakening of PM-COAS diarchy and slashing down of General Bajwa’s tenure, a greater space is created for the opposition parties to find courage in asserting civilian say and the supremacy of the parliament.
The whole controversy must have not left General Bajwa with a good taste in his mouth about the man he preferred over other politicians.
He could either keep a legitimate distance and wait for his retirement or resign to retrieve the prestige of the office of COAS or become more engaged in seeking full tenure. All these options will have far reaching implications for the alignment of forces in Pakistan.
What is probable is that with the weakening of his backing, Imran Khan may lose his majority in the Punjab and, subsequently, at the centre.
Now, the time is ripe for the parliament to become the centerstage of political manoeuvrings. But it remains moribund due to the exclusionary and intimidating attitude of the PM who has put many top leaders of mainstream parties to the sword of a selected over the question of ‘accountability’.
The issue before the parliament could become much broader in the context of a precarious civil-military relation.
Khan could assert the chief executive’s office by accommodating the opposition parties’ opinions. This could be an exceptional opportunity for Pakistan People’s Party and Pakistan Muslim League (Nawaz) to show some steadfastness on the issues of civilian supremacy.
But it should not be forgotten that the politicians, because of their rivalries, could be tempted to outclass each other to find favour from the military establishment as well.
In the meantime, the media may find greater room to discuss forbidden issues.
Imtiaz Alam is a Lahore-based journalist and a founder president of the South Asian Free Media Association (SAFMA).