‘SC’s Conditional Verdict Further Embarrasses Gen Bajwa’

On November 28, 2019, the Supreme Court of Pakistan delivered an order announcing that Gen Qamar Javed Bajwa will remain the Chief of Army Staff (COAS) for another six months. “A three-member bench — comprising Chief Justice of Pakistan (CJP) Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah — announced the much-anticipated verdict after being assured by the government that parliament will pass legislation within six months. According to the short order, the federal government “has presented this court with a recent summary approved by the president on the advice of the prime minister along with a notification dated 28.11.2019 which shows that General Qamar Javed Bajwa has been appointed as COAS under Article 243(4)(b) of the Constitution with effect from 28.11.2019”. “The current appointment of General Qamar Javed Bajwa as COAS shall be subject to the said legislation and shall continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service,” read the court order.”

As Babar Sattar pointed out on twitter: “SC’s order today hasn’t diminished but bolstered perception of legal exceptionalism that attaches to Army Chief: SC could’ve ruled his reappointment legal/valid or illegal/invalid but not that opportunity be afforded to validate an invalid appointment in larger national interest. Did CJP take up the issue of reappointment at the 11th hour (on Mr Rahi’s petition!) to tutor govt on summary writing skills or to fix procedural lapses? If no legal power exists to reappoint Army Chief at this point, under what law has SC granted him legal cover for 6-months?”

Further, as Sattar notes, “Superior Courts issue quo warranto petitions everyday. They never rule that an appointment is invalid but govt can have it revalidated at its leisure. What principle of law guided SC today other than rule of necessity that ordinary laws don’t apply to someone as powerful as COAS? How can SC direct parliament to legislate on any issue (much less to validate extension of an individual)? Also under what principle must Army Chief’s term be specified by Parliament (& not subsidiary legislation/rules) as terms of office are defined by rules under many laws. This case would be legally relevant if it helped lay down objective criteria for grant of extension to anyone holding powerful office of COAS (no one’s mentioned Air/Navy/CJCSC!) to establish that law wouldn’t allow a powerful incumbent to grant himself extension through proxies. CJP may have entrenched the perception he set out to dispel i.e. same treatment is meted out to the weak & powerful under law. This sorry episode has made everyone in PK (especially those sitting atop big institutions) look small & desperate for power & survival.”

Finally, as Sattar states, “So what’s new? Govt can now wait for CJP’s retirement (or not) & file a review of today’s order to the extent it requires an Act of Parliament & add a simple rule approved by Cabinet providing for a 3 (or 4/5) yr term for COAS to avoid debate in Parliament & negotiation with opposition parties. But opposition might wish to renew its allegiance to Army Chief & his indispensability for PK’s survival, in which case Act of Parliament it can be. Shorn of moral compunction & past the embarrassment of demanding extension, coercion in play could get more stringent. So brace up! Art 243 provides for appointment of COAS (which is Service of Pakistan under Art 260). Art 240 says conditions of service be regulated by Act of Parliament under which rule-making power is delegated to Govt to specify details such as tenure etc. No constitutional amendment needed.”

As analyst and commentator, Khurram Hussain wrote in Dawn, ‘Time to stand down.’ “This is a good time to remember that institutions are more important than individuals. Leaders come and go, but what matters ultimately is what they leave behind. Those who lead with an eye to their legacy, and a sense of service to the institution to which they belong — whether an organisation or a movement or a profession — are the ones more likely to leave behind a legacy that others can build upon. Those who lead with a sense of their own indispensability and entitlement will leave behind legacies that their successors will have to battle with, rather than build upon.”

As Hussain noted, “There is more to the institution of the military than its might and its prestige. As a leading institution in the country it has to show the way to others as well, and curate its legacy and its place in the country’s power structure. After Wednesday’s hearing in the court, there is little doubt that this higher purpose, before which all chiefs should submit, will best be served by standing down.”

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