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For a while, it was Supreme Court vs PM in Pakistan. But in the end, court was kind to Imran Khan

Why did Imran Khan’s government not think of studying the law before composing the “extension” order for General Bajwa? An easy explanation is that no one in Pakistan will challenge anything thought to be ordained by the army.

Written by Khaled Ahmed | Updated: December 4, 2019 8:01:03 pm
For a while, it was Supreme Court vs PM in Pakistan. But in the end, court was kind to Imran Khan Pakistan Prime Minister Imran Khan. (Reuters Photo/File)

Seriously ill ex-Prime Minister Nawaz Sharif, in prison for corruption, was allowed by Prime Minister Imran Khan to go to the UK for treatment. Soon, however, Khan started fearing a backlash from his supporters on the Pakistani street and took to criticising the judiciary for letting Sharif go. He had allowed the ex-PM to leave provided he sign an indemnity bond of Rs 7.5 billion as guarantee for his return. But a high court decision ruled this out and Sharif flew out to London. Khan, in reaction, lost his cool and publicly rebuked the chief justice of Pakistan for not making justice “even-handed” in the country.

This led to a tiff between the executive and the judiciary. Chief Justice of the Supreme Court Asif Saeed Khosa, in a televised repartee, reminded the PM that he had himself okayed Sharif’s journey; only the high court had disallowed the indemnity bond. He asked Khan “to be careful”. This was in November. But Khan had notified an extension of three years in Army Chief General Qamar Javed Bajwa’s service due to end the same month. The chief justice must have known the dubious nature of this extension when reprimanding him.

The three-year “extension” given to General Bajwa was challenged at the Supreme Court by an eccentric lawyer of Rawalpindi who had been censured repeatedly in the past by the court for “frivolous litigation”. Lawyer Riaz Rahi tried to withdraw his plaint at the last minute but the Supreme Court refused to let the matter go. Now it was the Supreme Court vs Prime Minister. The notification of extension to General Bajwa was found to be against the rule that ordained that the said notification be made public by the president after being recommended by the PM.

What followed was farcical. The notification was rewritten and forwarded to President Arif Alvi, who hurriedly signed it and made it public. This time, the court found fault not with the procedure but in the law. Rule 225 of the Pakistan Army Act of 1956 did not contain the clause that would enable extension to an army chief retiring at the designated age of 60.

It appears that the Khan government in general, and his Law Minister Senator Farogh Naseem in particular, were not aware that army regulations simply had no mention of “extension” to be applied after the three-year tenure of the army chief; it also did not allow the extension to stretch for three years, which would have meant annulment of the right of the next senior-most officer to be appointed as chief. The court studied the amended notification and applied another humiliating reprimand to the government for not knowing that “extension” was simply not mentioned in the Army Rules. When this happened in court, Pakistan became aware — for the first time, it seemed — that the army chiefs who got extensions in power were ultra vires of the law.

Khan’s ministers came on TV to say that in case there is no clear law allowing a practice then practice itself became what they called “convention” — but that cut no ice with a rather voluble court whose insulting reprimands to the PM’s bureaucracy and cabinet were daily heard on the TV news. Three drafts laboriously composed by the government thereafter were ridiculed by the court on November 26 and rejected with the advice that the law under which the extension could be given was to be enacted first. There was much fluttering in the dovecots after that because General Bajwa was to retire at the midnight hour of November 29.

Why did PM Khan’s Pakistan Tehreek-e-Insaf (PTI) government not think of studying the law before composing the “extension” order for General Bajwa? An easy explanation is that no one in Pakistan will challenge anything thought to be ordained by the army. Elected PMs have to work hard to complete their constitutionally ordained five years in power. They are usually overthrown prematurely followed by a general who normally takes a decade in power before low IQ, if anything, brings about his downfall. Before General Bajwa, General Ashfaq Parvez Kayani had been given his three years by a PPP government without there being much of a storm in the country’s teacup.

General Kayani’s tenure had been “extended” by President Asif Ali Zardari in 2012, because Kayani had “helped Benazir Bhutto return to Pakistan after a period of exile” and had persuaded his boss General Pervez Musharraf to change his view on the subject. A wheedling President Zardari had opined that “General Kayani’s extension strengthened my government as well as the parliament”. Finally, when General Kayani left at the end of his extension, a smear campaign described him as “buying a ranch in Australia before migrating there”. He, however, went enveloped in the familiar odour of corruption clinging to most usurping generals in Pakistan.

But Kayani’s extension was challenged too. The petitioner was none other than convener of an ex-servicemen’s legal forum, Colonel (retd) Inam-ur-Rehman, who said to the high court in Islamabad: “The Forum is of the opinion that the extension given to the army chief is immoral and unconstitutional because there is no provision for it in the Pakistan Army Act of 1956 and in the rules under which an extension of complete tenure could be granted to any person subject to the Army Act.” What was the court’s reaction to the petition? Daily Dawn noted: “Chief Justice Iqbal Hameedur Rahman has directed the petitioner to satisfy the court about his locus standi (being aggrieved) and to submit copies of relevant documents annexed with the petition and adjourned the hearing.” The case petered out, as was expected. Imran Khan, then agitating against the “corrupt” governments in power, had opposed the Kayani extension, saying extensions weakened institutions.

Was the court kind to Imran Khan, in the end? Yes it was. It allowed the extension but only after the required laws for it had been passed; and gave General Bajwa six months of free passage which will be “regularised” after the needed laws are in force. Imran Khan was beholden to him for the 2018 election which he won amid rumours that the deep state had “fixed” the polls. The current Interior Minister Brigadier (Retd) Ijaz Shah is said to have actually helped stage Khan’s famous sit-in in Islamabad in 2014 from his privileged position inside the army’s powerful ISI. And Khan has returned the favour by declining to prosecute Shah’s close friend, the exiled ex-army chief General Musharraf, for treason.

This article first appeared in the print edition on December 4, 2019 under the title ‘When the court kowtowed’. The writer is consulting editor, Newsweek Pakistan.

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