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Posted at: Dec 3, 2019, 6:55 AM; last updated: Dec 3, 2019, 6:55 AM (IST)

Pakistan army prevails

Vivek Katju

Vivek Katju
Despite the Supreme Court’s reservations, General Bajwa will have his way
Pakistan army prevails
Signs of change? It remains to be seen if the court’s exercise of quasi-judicial independence will be a passing episode or help change the civil-military equation.

Vivek Katju
Ex-secretary, ministry of external affairs

For three days, Pakistan was gripped by the Supreme Court drama regarding army chief Gen Qamar Javed Bajwa’s continuance in office after the expiry of his conventional three-year ‘term’ on November 28. The court initially suspended PM Imran Khan’s decision that Bajwa would serve for an additional three years. However, finally after many quick twists and turns in the case, the court allowed Bajwa to what amounts to a provisional continuance for six months and more later, subject to the enactment of necessary legislation.

 While the court gave the government and Bajwa relief, it also caused them deep embarrassment. Pakistan army chiefs are larger-than-life figures who inspire awe and fear in the country’s political class and the public. Now the people saw the judges, at least for a few days, treat the army chief’s post as any other governed by the laws of the country and the directions of the court. 

 Imran Khan is not the first Pakistani head of government to extend the tenure of an army chief. PM Yousaf Raza Gillani, who belonged to the Pakistan’s People’s Party led by then President Asif Zardari, gave a three-year extension to then army chief Ashfaq Kayani. Army chief Zia-ul-Haq, who ousted PM Zulfiqar Ali Bhutto in July 1977 in a military coup, became the President of the country, but continued as army chief till his military aircraft exploded in the sky in August 1988. Pervez Musharraf, who was appointed army chief in 1998 by PM Nawaz Sharif, deposed him in October 1999 in a military coup and became President, but he retained the army chief’s position till he appointed Kayani to that post in November 2007.

Neither Zia-ul-Haq nor Musharraf would have allowed the judiciary to examine the validity of their continuing as army chiefs for these long periods. It seems that no one asked the judges to take up the issue of the validity of Kayani’s extension, but even if it was brought before the court, it is doubtful if it would have gone into the issue. This time it did because of the personality of Chief Justice Asif Saeed Khosa who has a well-earned reputation for being a fearless, if a somewhat maverick judge, who looks into the law and the facts of a case and is not swayed by other considerations. 

 The current Pakistan constitution mandates that appointments of defence services chiefs, including the army chief, will be made by the President on the advice of the PM. The problem is that neither the constitution nor the laws and the rules governing the army provide for a tenure for the army chief or for his extension or reappointment. All this has been managed till now through the practices followed by the army. When the court asked the government the basis for giving extension to Bajwa it could not do so convincingly. Worse, it began to offer contradictory submissions. The court’s final order noted the government ‘moved from one position to another’.

Ultimately, the judges, despite their scathing observations during the hearing, accepted the fiction that the President had appointed Bajwa as army chief with effect from November 28, 2019, in terms of the constitution. They overlooked the obvious fact that he had served as the army chief for three years. They also accepted the government’s assurance that the practice relating to the tenure, extension and reappointment would be codified in an Act of parliament. They ordered that Bajwa’s current ‘tenure’ would be for six months and would be subject to the conditions of the new legislation. The court also stated that it was exercising judicial restraint because of the army chief’s responsibilities. This was contrary to its earlier position which stressed the role of the army as an institution and not of an individual.

While the government will bring in legislation to fill the lacunae pointed out by the court, the question is: will this exercise of quasi-judicial independence be only a passing episode or will it help in changing the civil-military equation or reduce the aura of the office of the army chief? These questions go to the heart of Pakistan’s polity and this judicial action must be judged through seeking answers to these queries.

All things considered, a serving army chief is the most significant public office-holder in Pakistan. During periods of civilian rule, the army allows the PM to choose the chief from among the eligible generals, but once chosen, he becomes the country’s real power centre. That stated the army generally also wants a chief to retire after his term is over, even if it has gone along with extensions in the past. Thus, after the legislation if extensions for the chief become difficult in the future, the army will not be unhappy. 

The army controls Pakistan’s security policies and crucial areas of foreign policy. This judgment does not concern itself with these matters. It will therefore not strengthen the civilian leadership to spread its wings in these domains. If anything, it has profiled the civilian leadership as inept and therefore added to the impression that it cannot be trusted with the security of the country. It will, therefore, not impact on the basics of the civil-military relationship.

 This case is unlikely to strengthen the judiciary, for when this matter was ongoing the Islamabad High Court prevented the special court hearing the Musharraf treason case from delivering its verdict. Thus, some judges may show some independence, but the institution will continue to be careful and circumspect in dealing with the army.

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