Three Cheers For The Supreme Court
The SC rightly directed Parliament to legislate on the matter of COAS’s extension. The court also displayed pragmatic wisdom in granting Gen Bajwa a 6 months extension, by which time Parliament must legislate, writes Justice Markandey Katju.
I am still marveling at what the Pakistan Supreme Court led by Chief Justice Asif Saeed Khosa has done by its order dated 28.11.2019 in the case of Jurists Foundation vs Federal Government. I confess I simply could not believe they had the guts to do it, for the reason that the past record of the court has been very shabby.
It has often kowtowed before the establishment. For instance, at the dictate of General Zia it committed the ‘judicial murder’ of Bhutto, and propounded a novel ‘doctrine of necessity’ to validate army coups.
This latest order of the Supreme Court is therefore akin to Chief Justice Coke’s act of courage in the Commendam case of 1616 in opposing King James 1 of England who claimed the right to pronounce judicial verdicts.
‘Power grows out of the barrel of a gun’ said Mao tze dong, and this doctrine was adopted lock stock and barrel by the army generals after Gen Ayub Khan staged his coup in 1958. For 30 years, the army ruled directly, and for much of the remaining period indirectly through the cover of a civilian government.
The real seat of power in Pakistan is widely believed to be the Corps Commanders Conference. When Roman general Pompey, the Great went to Sicily, the people of Sicily questioned his jurisdiction on the ground that it was against an ancient law of Rome, to which Pompey replied, “Don’t quote the laws to us, we carry swords.”
Gen Ayub, Gen Zia, and Gen Musharraf were worthy successors of Pompey the Great, as they believed in the same philosophy, and the Pakistan Supreme Court dutifully validated their coups, even though in flagrant violation of the then Constitution.
I have written an article ‘The real truth about the Pakistan military’ published in theweek.in in which I have mentioned that through the Fauji Foundation, Army Welfare Trust, Shaheen Foundation and other devious organs, the army has infiltrated into almost every sector of the Pakistan economy (see Ayesha Siddiqa’s book ‘Military Inc’).
Thus, the Pakistan military has a vested interest in holding on to power.
It was therefore an act of real courage on the part of the Pakistan Supreme Court to question Gen Bajwa’s extension of term as COAS by 3 years. Who could have imagined the judges to stand eyeball to eyeball with the Generals?
Even the petitioner, after having filed the petition, had later lost courage and backed out by filing an application for withdrawing his petition. The judges could have easily dismissed the petition as withdrawn, but it must be said to their credit that they did not. The time had surely come in Pakistan to tell the Generals where they get off, and it was only a courageous Supreme Court bench which could do so.
I have read the short order of the Court, and was surprised to read in paragraph 2 that neither in the Pakistan Constitution, nor in the Pakistan Army Act, Rules or Regulations is there any provision about the tenure of the army chief, or whether he can get an extension/reappointment.
The Court therefore rightly directed Parliament to legislate on this matter. The Court also displayed pragmatic wisdom in granting Gen Bajwa a 6 months extension, by which time Parliament must legislate. Some people may criticize this 6 months extension, but in my view this avoids an unnecessary confrontation, and gives adequate time to the concerned authorities to decide on Gen Bajwa’s replacement as COAS. Indeed, if Gen Bajwa has any self-respect, he should himself refuse a further extension beyond 6 months and should gracefully retire.
Hats off to Chief Justice Khosa and his colleagues on the bench. May Justice Khosa’s successor as CJP display the same courage.
Markandey Katju is a former judge of the Supreme Court of India. He was also the Chairman of the Press Council of India.