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 explains 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.
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.
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.
Source: The Indian Express
Relevant for GS Prelims & Mains Paper II; IOBR