Pakistan Supreme Court pushes for civilian decision

The Pakistan Supreme Court, in a verdict on Thursday, gave a six-month extension to the tenure of army chief General Qamar Javed Bajwa, who was due to retire by midnight on November 28.

The verdict came at the end of three days of court proceedings after Chief Justice Asif Saeed Khosa declared a notification extending the army chief’s tenure by three years ‘illegal’ on Tuesday.

Advocate Riaz Rahi, who has been fined on multiple occasions for ‘frivolous petitioning,’ had tried to take back his case against the army chief’s extension. But Chief Justice Asif Saeed Khosa rejected the retraction plea, maintaining the case was within the realm of Article 184 (3) of the constitution, which defines ‘public interest.’

The notification to extend the army chief’s tenure was issued by Prime Minister Imran Khan in August. The Prime Minister Office’s extension order, which had been challenged in a petition, turned out to be one of many errors committed by the government’s legal team leading to the Supreme Court suspending the decision this week.

According to Article 243 of the constitution, the court noted, only the president has the authority to appoint an army chief. The Supreme Court further pointed out that the government’s notification, neither the original nor the revised order which was passed this week, clarified whether the army chief was being ‘reappointed’ or ‘given an extension.’

The government had been relying on Article 243 and Regulation 255 of the Army Regulations (Rules), neither of which had any provision related to the appointment of the army chief or the duration of their tenure.

Controversial petition

The Supreme Court has now given the government six months to pass the needed amendments to the constitution and the Pakistan Army Act so as to make the procedure of the army chief’s appointment clear, during which period General Qamar Javed Bajwa will remain the Chief of Army Staff.

The controversial petition was filed by Advocate Riaz Rahi, who has been a contentious figure surrounding court proceedings in recent years. Dubbed a ‘serial petitioner,’ Rahi has challenged Supreme Court judges, while also pushing contempt of court petitions, and has been a petitioner in cases involving figures as high profile as former premier Nawaz Sharif and former military ruler Pervez Musharraf.

Some critics believe that the apex court’s intervention over the army chief’s extension is a manifestation of the ruling Pakistan Tehrik-e-Insaf (PTI) government’s ineptitude. Others maintain that the government’s legal faux pas is a corollary of the nature of the notification under deliberation.

In a country that has spent roughly half its time as an independent state under military rule, civilian leaderships issuing orders on army chiefs has been a rarity. Since former army chief General Pervez Musharraf abrogated the constitution to become the military ruler in 1999, General Raheel Sharif remains the only army chief who retired on time in November 2016.

General Sharif’s predecessor, General Ashfaq Parvez Kayani, who had taken over from Musharraf in November 2007, was given a three-year extension by the Pakistan People’s Party (PPP) government in 2010. That extension too had been challenged in the Islamabad High Court (IHC) in 2012 by retired Colonel Inamur Rahim, who had argued that the extension was ‘immoral and unconstitutional.’

The petition was dismissed by the IHC, citing Article 199 (3) of the constitution, which barred the high court from any verdicts in cases related to individuals on whom the Army Act applies.

Legal experts note that the loopholes present in the original notification regarding General Bajwa’s extension were the same as the ones in General Kayani’s case, given that there is no existing law dealing with the subject of the army chief’s extension of tenure.

Military or government?

This further underlines the arbitrary nature of the orders pertaining to the army chief’s retirement or extension, with analysts maintaining that the lack of legal sanction on the matter reaffirms the fact that such decisions have been taken at the behest of the military leadership more so than the government.

Now with a six-month window, the Supreme Court has thrown the gauntlet to the government to reclaim Parliamentary sovereignty and civilian supremacy about decisions over the leadership of the institution which has ruled over the country with impunity.

However, few actually believe the PTI government would go ahead with any legislation that looks to rein in the military’s overreach into civilian spheres. This is because Imran Khan, and his PTI government, feel obliged to the military establishment for facilitating their rise to power.

And yet party insiders suggest there might be some friction between the civil and military leadership developing over a lack of control over matters on which the government is accountable, which is only going to be aggravated by the chaos surrounding the army chief’s extension.

Military insiders too claim Khan is ‘not taking orders.’

“You all think that Imran Khan is a very good, obedient boy. I can assure you that’s not the case,” said a senior military officer off the record. “The civil-military unity over the past year or so has simply been because the civil and military leadership are in agreement over most of the issues. Fissures can be created when that changes,” he added.

While PM Khan’s original order said General Bajwa’s tenure had been extended “in view of the regional security environment,” in opposition he had been critical of the idea of giving the army chief an extension, even in the direst of circumstances.

‘Bajwa doctrine’

General Bajwa had been handpicked by former PM Nawaz Sharif in 2016 owing to his reputation as someone who does not endorse military intervention in politics, who believed in improved ties with India and who might lead a crackdown on jihadist outfits in the country.

Over the past three years, which have seen Nawaz Sharif being disqualified as premier and sent to prison, a mélange of the abovementioned tags eventually evolved into the ambiguous ‘Bajwa doctrine.’

While the so-called doctrine itself remains unclear, Bajwa’s supposed regard for civilian supremacy can be gauged by his presence in the cabinet meeting formulating his own extension order or his meeting with businesspersons last month where the army chief was giving reassurances on the economy.

While PM Khan was quick to downplay it, insiders revealed that the military leadership was angry over the manner in which the extension was handled by the government this week.

“The top leadership did not like it, believing it was unnecessary and created embarrassment for us, but in the long term it will help the army as an institution and help Pakistan as well,” said Lieutenant General Talat Masood, a former secretary at the Ministry of Defense Production.

“The judiciary has quite clearly asserted the fact that institutions should remain within the confines of their constitutional boundaries.”

While the judiciary has given the government six months to further delineate those constitutional boundaries, some analysts believe that instead of reaffirming the separation of powers, the episode could trigger a confrontation between PM Khan and General Bajwa.

“The episode shows that the judiciary exerted its power and now the military will use the next six months to strike back. A new chief would have gotten more relief for Imran Khan. Now when Bajwa feels the pressure, he will be tempted to sacrifice Imran Khan,” said military scientist Ayesha Siddiqa, the author of Military Inc.: Inside Pakistan’s Military Economy.

With the Parliament given the opportunity to uphold civilian supremacy, growing concerns remain over the extension actually being legitimized through legislation, with political parties queueing up to negotiate personal benefits at the expense of the current government.