Last week, a three-member bench of the Pakistan Supreme Court, headed by the country’s Chief Justice Asif Saeed Khosa, made a carefully calibrated move to question the Imran Khan-led government, seeking that it explain and justify the extension of the tenure of Army chief General Qamar Javed Bajwa by three years.
It is being seen as a challenge to the Army chief’s position, which is rare in a country that has been ruled by the Army for more than half of its seven decades, and where the saying goes that it’s not a country with an Army but an Army with a country.
The move & the challenge
On November 26, the Pakistan Supreme Court Bench took up a petition challenging the extension. It was filed by lawyer Riaz Rahi, known in Pakistan’s court circles as a “serial petitioner” who has moved court against former Prime Minister Nawaz Sharif, former President General Pervez Musharraf, and former Supreme Court judges, without much success. Although Rahi tried to withdraw this petition, Chief Justice Khosa did not allow him to do so.
Over the next three days until November 28 — the date of Army Chief Bajwa’s scheduled retirement — the Bench questioned the government on the manner in which it had granted the extension. Prime Minister Imran Khan had announced the extension in August, just two weeks after India had revoked Article 370 concerning Jammu & Kashmir, and had cited the “regional security situation” as the reason behind Bajwa’s extension by three years.
The arguments & the verdict
The chief law officer of the state could not give definitive answers when the Bench asked for specific laws that permitted extension or reappointment of the Army chief. The Bench found that Imran Khan had issued the notification on August 19, only to be told later that, under the Constitution, only Pakistan’s President could issue a notification of the Army chief’s extension. To rectify the error, the Prime Minister’s Office moved a fresh summary — a note. This was quickly approved by the President, but it emerged later that the Prime Minister could not send the summary to the President without his Cabinet’s approval. The summary was then circulated among Cabinet members, but no fresh notification was issued.
When the court found that the government had not even followed the proper legal procedure, the government issued notifications but got caught in jargon — whether it was an “extension” or a “re-appointment”.
The Pakistan government’s legal team argued that the extension was done under Article 243 (Command of Armed Forces) of the Constitution. But a simple reading of Article 243, the Bench said, showed it did not deal with extension. Article 243(4)(b), which deals with appointment of the Army chief, says: “The President shall, on advice of the Prime Minister, appoint…”
Finally, the Bench ordered — just hours before Bajwa’s midnight retirement — that the extension be granted, for another six months, and that the government bring out legislation to regularise such an extension (which has been happening without any legal backing for seven decades in Pakistan).
The Army’s influence
So powerful is the Army chief that Pakistan Law Minister Farogh Naseem, also one of the country’s top lawyers, resigned to represent Bajwa in the Supreme Court. After the verdict, Naseem was sworn in again as Law Minister.
Another pointer to the Army chief’s influence was that on the evening before the final order, Prime Minister Khan held a meeting of top legal minds which was attended by Bajwa himself.
In the last two decades, only General Raheel Shareef retired on time, while General Ashfaq Parvez Kayani and Musharraf stayed on beyond their prescribed tenures. Kayani’s extension too was challenged in the Islamabad High Court in 2012; the court dismissed the petition.
Army and judiciary
The current situation reminded many of a face-off in 2007 between Musharraf and the judiciary under then Pakistan Chief Justice Iftikhar Chaudhry, who had been removed by the military ruler. Eventually, this contributed to the downfall of the Musharraf regime.
During the hearings in the latest case, the Chief Justice observed: “We were labelled as agents of India and the CIA when we examined the Army Act.” Yet he also said that “it is our right to ask questions.”
Some believe that this could be an outcome of rivalry between the Chief Justice of Pakistan and the Prime Minister. Recently, Justice Khosa had made it clear that the judiciary had nothing to do with the removal of former Prime Minister Sharif’s name from Exit Control List. Again, after Prime Minister Khan had requested Justice Khosa to restore public trust in the judiciary and see why two systems existed in the country — one for the rich and the other for the poor — Justice Khosa took exception to the “taunt” and said the courts of the country had convicted a Prime Minister and disqualified another.
The general’s legacy
Under Bajwa, the Pakistan Army in February 2017 launched Operation Radd-ul-Fasaad (RuF), in the aftermath of a resurgence of terror attacks. Pakistan Army media wing ISPR said RuF was aimed at indiscriminately eliminating the “residual/latent threat of terrorism”, consolidating the gains made in other military operations, and ensuring Pakistan’s border security. One of the major successes under the RuF has been fencing along the Pakistan-Afghanistan border.
But, with India, relations nosedived, with the Pulwama terror attack and then the revocation of Article 370 that prompted Bajwa’s extension. However, Bajwa re-kindled the Kartarpur corridor proposal with his hug and conversation with Congress leader Navjot Singh Sidhu.
With China, Bajwa has cultivated a relationship. The Chinese Foreign Ministry spokesperson had said Gen Bajwa was a “sincere and old friend” of the Chinese government. In September 2018, Gen Bajwa, on special invitation, called on Chinese President Xi Jinping to discuss the region’s security challenges, and has committed to the security of the China-Pakistan Economic Corridor. He accompanied PM Khan on the state visit, which is unusual for a Pakistan Army chief.
Takeaways for India
India has been trying to corner Pakistan at multilateral fora on the issue of terrorism, and the Financial Action Task Force will in February once again take up the issue of Pakistan’s blacklisting. The current crisis in Pakistan may give some leverage to Pakistan’s civilian government and political class to push the Pakistan Army to take action against the terrorist groups operating out of the territory under their control. This has been one of India’s major demands and, if it happens, could unlock the bilateral space between the two countries.
On the other hand, India would be wary about whether this episode could lead to the Pakistan Army becoming more adventurous in Jammu and Kashmir, in a bid to regain its legitimacy and bolster the “regional security” argument.
Whatever be Bajwa’s eventual fate, a powerful Army chief in Pakistan has consequences far beyond the territory under the Army’s control. New Delhi will be watching the space very closely.
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