As we wait for the detailed order of Supreme Court’s verdict delivered on November 28, there is a flurry of activity within the government as well as the opposition. While opposition leaders have yet to express anything negative about the legislative endeavors to give ex-post facto sanction to the extension and reappointment of Army Chief General Bajwa, different voices can be heard from the government in Islamabad.
Prime Minister Imran Khan started off by tweeting and making off-the-cuff comments at a public event the same day. “Today must be a great disappointment to those who expected the country to be destabilised by a clash of institutions. That this did not happen must be of special disappointment to our external enemies and mafias within. Mafias who have stashed their loot abroad and seek to protect this loot by destabilising the country,” he wrote on Twitter after the verdict.
No one – including the prime minister – could explain how an application filed by a lawyer known for his pro-establishment stances and frivolous litigation led to the extraordinary hearing of the Supreme Court. The PTI didn’t explain what “external enemies and mafias” had anything to do with the litigation in the Supreme Court. If there was such a link and a sinister design to “destablise the country,” and scheming for “clash of institutions,” what investigations were made in this regard? Will those details be shared with the 220 million people of Pakistan?
Imran Khan’s comments linking the opposition with “external enemies” after the court’s verdict did trigger caustic response from the opposition. Many pundits wondered about the rationale behind the prime minister’s outburst.
No one – including the prime minister – could explain how an application filed by a lawyer known for his pro-establishment stances and frivolous litigation led to the extraordinary hearing of the Supreme Court
The Supreme Court verdict has thrown the ball in the court of the parliament to make necessary legislation to possibly find a de jure justification for the de facto continuation of Army Chief General Bajwa past his earlier scheduled retirement on November 29.
“We, while exercising judicial restraint, find it appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard.”
While the court order is clear about the parliament amending or creating a new act of the parliament, it is ambiguous about “clarify[ing] the scope of Article 243 of the Constitution.” Many legal pundits say this would not be possible without amending Article 243 of the Constitution. Others disagree and insist that a simple act of the parliament passed by a simple majority separately or in a joint session of the parliament would suffice. We would have to wait for the detailed judgment of the court as that might clearly say what was expected of the parliament.
What is unprecedented is the fact that the court independently determined that in its current position Article 243(4)(b) of the Constitution, Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 and Army Regulations (Rules), 1998, do not provide any legal cover in justifying the extension or re-appointment of General Bajwa.
The court, for now, has allowed the army chief to continue in office for at least six months till the parliament addresses the legal lacunae. Many legal experts have dubbed the verdict as an example of legal exceptionalism and revival of the doctrine of necessity. What essentially the apex court has done is this: It has allowed an officer to continue in office under a legal framework that is yet to be created. In normal circumstances the court would have declared the order of the appointment/extension as void ab initio as it was done in several cases before.
The fundamental question raised by the verdict is how the judiciary could dictate the parliament to legislate in a particular manner. The parliament is the mother of all democratic institutions and can’t be dictated by any organ of the state, say many legal wizards.
So far, the opposition parties are deliberating how to meet this challenge. None of the parties have hinted at any negative reaction towards the court verdict but they have yet to express clearly if they want to amend Article 243 or the Army Act. Even if they are willing to allow the extension/re-appointment of General Bajwa, would that be for a full three-year tenure? This is yet to be announced by opposition parties.
A PML-N delegation was scheduled to dash to London to consult Nawaz Sharif and Shehbaz Sharif to make a final determination in this regard. The devil remains shrouded in the details but what is clear is that Imran Khan has muddied too soon, even before any consensus could be made on the thorny issue.
Imran Khan’s outburst against the opposition clearly hints at jealousy generated by the verdict, which snatched the power of the appointment/extension from the prime minister and handed it to the parliament where his arch rivals may have a field day.
Imran’s ire also sends a signal to the miltablishment that he is not willing to do heavy lifting in this regard. Despite the fact that a parliamentary consensus is needed to avoid an embarrassing situation, the abrasive remarks by the prime minister and his cabal of ministers suggest that all is not well.
The recent disclosures reported by the media on what led to the outgoing DG FIA Bashir Memon to resign are an eye-opener into the psyche of Imran Khan’s administration, which allegedly tried to use the FIA against his political opponents as well as prominent journalists.
Now that the odd man is out and replaced by Panama JIT fame Wajid Zia, along with the elevation of Shehzad Akbar as a minister of state with special attachment to the FIA, it does not bode well for the opposition and the journalist community.
The writer is a journalist based in Islamabad.