General Qamar Javed Bajwa, the Chief of Army Staff, Pakistan, assumed office on November 29th, 2016. The COAS in Pakistan has a set term of three years. Accordingly, General Bajwa was set to retire on November 28, 2019.
On August 19th, the Pakistan PMO notified via a press release bearing official number PMO/3232/SPM/19 undersigned by Imran Khan that General Bajwa was given an extension of three years in view of the ‘regional security environment’. The release did not elaborate further on the grounds of this extension so happily granted to Bajwa, nor did it define the nature of the regional security environment.
Apparently, the Pakistan PMO did not follow the correct procedure. The notification had been issued without consulting the cabinet and only after the press statement, duly signed by the PM was released, the cabinet was consulted. According to the news reports based on discussion during the hearing, Attorney General Mansoor Khan told the court that out of 25, 11 cabinet members had affirmed to the extension of tenure, while the other 14 were absent from the meeting. However, after the cabinet approved, the matter was never sent to PM and/or the President for a fresh order.
Aghast by the gross negligence and blatant violation of protocol, The Jurists Foundation filed a petition challenging the extension given to General Bajwa but the petition did not get immediate recognition. The matter came into public light when the Foundation filed an undated application to the Chief Justice of Pakistan for the withdrawal of its petition.
Chief Justice of Pakistan observed, “The petitioner has failed to appear in person nor anybody else has appeared on his behalf. The application received does not carry any date and the same is not accompanied by an affidavit. There is nothing before us to accept or to presume that the said application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily.”
He declared the matter to be of public interest under Art. 184(3) of the Pak Constitution which sets out the apex court’s original jurisdiction and allows ‘any party’ to file a petition in the court. The court is also empowered to take suo moto notice of matters pertaining to public importance under this article.
Hence, invoking 184(3), CJP rejected the withdrawal application and suspended the executive’s notification regarding the extension on the ground of procedural flaws.
On November 26th, shortly after the developments in the Supreme Court, the cabinet reconvened and amended Rule 255 of the Pakistani Army Regulations (Rules) by inserting a new phrase ‘extension in the service’ to it. The regulation which earlier could be invoked upon the retirement of an officer could now be invoked earlier too.
The Pakistani Law Minister Farogh Naseem even resigned to fight the case for General Bajwa in the courtroom. The government, armed with the new powers it gave itself, requested the court to review its orders.
Now, why is this intervention, although a failed one, by the Pakistani Apex court worth noting? The Islamic Republic of Pakistan, since its independence from India in 1947 has witnessed over four successful military coups and numerous unsuccessful military/military-backed coups.
In 1954, General Ayubb Khan of Pakistan Army took over as the first chief martial law administrator of Pakistan and in a successful coup in 1958, assumed Presidential powers from Iskander Mirza to become the Second President of the nation. The then Chief Justice of Pakistan was pressurized by the Governor-General Ghulam Mohammed into validating the coup on the basis that they were from the same biradari. The Chief justice then cited the maxim ‘that which is otherwise not lawful is made lawful by necessity’, by Braxton in his judgment and thus was born The Doctrine of Necessity.
The main reason why coups and military-backed governments are successful in Pakistan is the power vacuum in the state. The internal political dynamics and regional and geo-strategic compulsions make it hard for any civilian government to act out of the army’s shadow.
Even the current democratically elected Imran Khan government is backed by the army. There are news reports on how the entire movement after which Imran rolled into power was with the blessings from ISI. After claiming that the 2013 elections, in which Nawaz Sharif’s PML (N) won 86 seats coming into power, were rigged, Imran Khan started a rally against the government. The rally was said to be organized and funded by various militant and army fronts.
One name came out in particular: Lt-General Ahmed Shuja Pasha, the former chief of ISI, Pakistani intelligence services. Also noteworthy is that General Pasha was also given a year-long extension twice after his tenure ended as ISI chief by the then PM Gilani seeing the “prevailing security situation in the country.”
ISI’s and the military’s role in the government cannot be denied, however, seeing the Pakistani Supreme Court in action is a marvelous development to say the least.