Monday Dec 02, 2019
Supreme Court of Pakistan has certainly created history by asking the elected government and the Parliament to decide about the terms and conditions of the services chiefs including the COAS in accordance with the law for which necessary amendments would be required.
It has generated a new debate over 'extension' for all times to come. So what is next? This is for the first time that the issue of giving 'extension' to the army chief had been taken up by the Supreme Court after it admitted the petition filed by a lawyer and decided the matter within days.
It first suspended the government's notification of three years extension to Gen Qamar Javed Bajwa followed by hectic proceedings for three days during which the government of Prime Minister Imran Khan faced quite a few anxious moments and embarrassment as his 'legal team' continued to change positions but what happened in the end was a matter of satisfaction for the government. How history will judge the judgment is a different matter but the Supreme Court by showing 'judicial restrain' allowed 'conditional extension' of six months from November 28, the day Gen Bajwa was suppose to retire and left the matter to the government and Parliament.
This six months extension been interpreted by the legal experts in different ways as some believe the top court has practically rescued the government from 'no win' situation otherwise 'extension' was not possible as the word already declared unlawful prior to the order although these six months are 'conditional', which in itself was unprecedented when it comes to appointment, re-appointment or extension.
It is now more than clear that the government has no intention to touch Article 243(4) (B) of the Constitution in regard to the appointment of the army chief as they do not have two thirds majority in the National Assembly.
The law ministry and attorney general are working day and night to amend the Army Act and may be army regulations will include the word 'extension' and fix the tenure without touching Article 243, but eminent jurist Rasheed Rizvi doubts it would settle the issue. "I don't think so because the subordinate legislation cannot bypass the specific Constitutional provision," he added. They should not take decision in haste and try to evolve consensus within the Parliament, he further added.
Prime Minister Imran Khan personally is in no mood to take the Opposition along as he continues his verbal attack on the Opposition and is constantly using the word 'mafia' for them. Interestingly, some of his teammates like Foreign Minister Shah Mehmood Qureshi, National Assembly Speaker Asad Qaiser and KP's former chief minister Pervaiz Khattak beside disqualified PTI prominent leader Jehangir Tareen are in favour of engaging the Opposition. There is every possibility that the government would amend the Army Act within weeks and get it passed with simple majority during the forthcoming National Assembly session scheduled to begin from December 4.
The premier has asked all its MNAs and senators to ensure their 100 per cent attendance and presence in Islamabad as Opposition also intends to take on the government over causing embarrassment internally and internationally on the question of the notification of the army chief.
Opposition, which has been praised for showing restrain during the crisis would raise the question of addressing Article 243 (4) (B) and may oppose mere amendment in the Army Act.
On the other hand, the government has made up its mind that if it faced problem in the Senate where they are in minority; it will get it passed through joint sitting of the Parliament. The question is whether it would be appropriate to get such an amendment passed without evolving a consensus among all the parties.
Veteran politician and ally of Imran Khan and MNA from Rawalpindi believes that Opposition would also back the amendment after some debate. He clearly indicates that both the mainstream parties have neither strength nor courage to create hurdles in such matters.
He is not all that wrong and it would be an interesting debate, but chances are that the Opposition leaders would focus more on government's failure rather on the question whether giving extension a legal cover would open the space for extension in future as well.
The PM also has an issue with the Opposition over the appointment of all important posts in the Election Commission of Pakistan including chairman Election Commission, as the present CEC Justice Sardar Raza (retd) would retire on December 6, while the posts of member ECP, from Sindh and Balochistan lying vacant for the past few months needs to be filled.
Will the PM and Leader of the Opposition reach consensus as both have now shared their names though without talking to each other. The Supreme Court has given the judgment but how history will judge it from the legal as well as political perspective will be interesting as we have to see the pre-2009 and post-2009 judiciary. How different is the present one from the past, which had given constitutional cover to unconstitutional rules under the 'law of necessity'. The judiciary which has emerged as a result of the two years lawyers' movement from March 2007 to March 2009, had made many landmark judgments and also corrected their own historic wrong.
At the same time the post-2009 judiciary had also taken some controversial decisions and not only sent two prime ministers Yousaf Raza Gilani and Nawaz Sharif home but the two previous chief justices faced criticism over 'judicial activism'.
Let the history decides whether the SC has corrected the 'historic wrong' or has opened a fresh debate of giving 'extension' a legal cover for all times to come. What happened during the proceedings and within the government clearly established the 'legal blunders' committed by the past and present leaders whether civilian or military when they gave or decided on their own about giving or getting extension through unlawful practice.
Ignorance of law is no excuse under the law but how the top court has settled the issue and how the future government and rulers will use it in the name of national interest or national security would be interesting to watch.
Prime Minister Imran Khan was a much relaxed man on last Thursday, and has decided to tighten his grip on power though some believe he has become weak.
His decision to keep the controversial Punjab Chief Minister Usman Buzdar despite unprecedented criticism both from within and outside the PTI; Imran Khan has sent a strong message to his opponents that he is there till May 2023.
He looked more confident after Maulana Fazlur Rehman's 'Azadi March' and SC's verdict on Bajwa's extension. No wonder why he wants to carry his government in Punjab through Buzdar. His next target is local bodies' elections in 2020 and Senate elections in 2021, which will make him more powerful before the general elections with majority in the Senate. But there is never a dull moment in Pakistan and from nowhere issues bring turmoil. As for today, Imran is there to stay.
The writer is a senior columnist and analyst of Geo, The News and Jang. Twitter: @MazharAbbasGEO
Originally published in The News