By Rana Banerji
November 29, 2019
After three days of frenetic deliberation in the supreme court, Chief Justice Asif Khosa allowed army chief General Qamar Javed Bajwa to continue in his post for six months, instead of three years.
Describing his short order as an 'exercise in judicial restraint', Chief Justice Khosa also extracted an undertaking from the attorney general and General Bajwa's lawyer, former law minister Farogh Naseem, to amend article 243 of the 1973 constitution which deals with the army chief's appointment, 'where after the new legislation shall determine his tenure and other terms and conditions of service.'
General Qamar Javed Bajwa's tenure as army chief, which was otherwise to have ended on November 29, 2019, was extended for three years on August 19, 2019 through a terse order from the prime minister's office, justifying it on grounds of the 'regional security environment', a thinly veiled reference to the situation in Kashmir and the ongoing Afghan peace talks between the US and the Taliban.
Normally a Presidential notification signed by President Arif Alvi should have confirmed this step.
On November 25, Chief Justice Khosa set the cat among pigeons by suspending the extension, not allowing withdrawal of a petition filed by an individual named Riaz Rahi, challenging it.
During the discussions in court, CJ Khosa questioned the modalities of the PM passing an order on the extension on August 21, after only 11 out of 15 cabinet members approved it.
This forced the cabinet to amend Rule 255 of the army regulations, and provide for 'extension in tenure', besides 'suspension/limitation of retirement'.
A new summary was produced in court after approval by the PM and president, but it did not satisfy the CJ, who exclaimed that 'the whole process had been turned upside down'.
CJ Khosa and his colleagues on the three member bench made several rather disparaging remarks on the proclivities of generals to give themselves 'year after year' of extensions in the past.
The proceedings shook up the complacent -- even incompetent -- Pakistan Tehrik e Insaf government. Imran Khan's immediate response after the judgment was to issue an aggressive tweet, alleging disappointment of internal mafias and external forces seeking to cause instability and friction between institutions.
It needlessly upped the ante when perhaps a more sober outreach was needed toward the Opposition, if their help is needed to work on amendments in the constitution which may require a two-thirds majority.
Attorney General Anwar Masood Khan claimed the change could be made through a simple majority. At a joint press conference on November 28, Faroog Nasim said the army chief's extended term would not necessarily end after six months.
There is a legal point of view; however, that spelling out tenure of an army chief specifically under article 243 could curtail civilian supremacy in this matter, which was the intention of the constitution makers. It remains to be seen how discussions among politicians in the national assembly pan out in this regard.
Apart from causing a few flutters among ambitious generals hoping to replace General Bajwa at the last minute, the judges’ observations caused considerable humiliation to the military as an institution.
A six month extension, if not extended further, would make General Bajwa a lame duck chief, altering the balance of his equations with the senior peer group of lieutenant generals.
Apart from General Nadeem Raza, who is poised to take over as chairman, joint chiefs of staff committee for a three year term, the senior cohort of generals would now include Lieutenant General Humayun Aziz, V Corps commander, Karachi, Lieutenant General Naeem Ashraf, II Corps commander, Multan and four others who will retire only in December 2020.
Overall, the judgment is a big setback to the Imran Khan government and conveys a message of ensuing political instability and possible clash of institutions in the country.
With considerable egg in the face of both the PTI government as well as an army chief seemingly wanting to hang on in power, only time will tell whether the army and its 'selected' protégé, Imran Khan will continue to 'remain on the same page' or how other aspiring political wannabees would want to step in as the proverbial 'king's party' in a continuing façade of an imperfect and struggling democracy.
Original Headline: End of the road for Pak army chief?