By amending Rule 255 in a haste, the government admitted the court’s preliminary stance that there is something wrong with the COAS's extension, writes Awais Babar.
On August 19, this year, PM Imran Khan signed a government notification granting extension to Chief of Army Staff General Qamar Javed Bajwa, which read more like an appointment letter of a class 4 servant. In yet another display of inefficacy by the government, it failed to follow the simplest of protocols required by the procedures.
The COAS has been granted a six-months extension by the Honourable Supreme Court. If the government is to have General Qamar Bajwa as its Army Chief, it must successfully bring in new legislation to secure his chairmanship (and perhaps theirs too?) Because in the event of failure to do so, General Bajwa will have to go home.
The above paragraph can be very conveniently rewritten in different words too. That the Supreme Court has nullified the government’s summary granting extension of 3 years and has effectively told the govt in the most decent of words in the form of a decision that for them to get what they want they will have to bring in a new law via parliament which will explicitly allow the government to grant extension to the Army Chief for a full term.
On this account, the Supreme of Pakistan has formally forbidden all the future and present governments to grant any extensions whatsoever according to law existing as of today and in such act will be rendered unconstitutional. The next six months have renewed the tensions for Imran Khan who keeps saying that now that the endangering numbers in economy have slightly lowered, he shall concentrate on governance.
The SC mainly looked into two questions with respect to the Army Chief's extension - collective responsibility of the cabinet and the Rule 255 of the Army Regulations. The former pertains to shortcomings in procedural law whereas the latter to substantial law – whether the government has the power to give extension in the first place.
Both these standpoints require peripheral examination. To be more precise, in the words of the Honourable chief justice, the court shall be looking into three points; the law, the procedure and the grounds for granting extension, hence bringing into play an extensive legal kit.
The government seems totally oblivious to the principle of ‘collective responsibility’ of the cabinet. They are not to blame though, the way the governments are formed and deformed to expect of them to know what it is to govern would be too much to ask, would it not? In simplest of words, cabinet's collective responsibility is a constitutional convention followed in parliamentary democracies such as Australia, UK, Canada, India and Pakistan, by virtue of which, all the members of cabinet are jointly responsible for government actions.
This is what the Honourable Chief Justice was referring to during the arguments on Tuesday when he said that the majority of the cabinet did not vote in favour of the extension; 11-25, only 11 in favour. "Fourteen members of the cabinet did not give any opinion due to their non-availability", said the CJP.
"Did the government take their silence as agreement?" To this, the evergreen expert Sheikh Rasheed responded later in the day by golden words, "if a member does not say 'no' to a summary then it is taken as positive as per rules and procedure". If we accept this interpretation then technically the PM can govern the whole country with just one cabinet member with the rest not saying 'no'. This explanation was ridiculous to say the least.
Therefore, for the extension to have been valid, either the rest of the 14 cabinet members should have resigned or voted in favour. Once the cabinet had collectively made the decision, it should have been forwarded to the president who then would have appointed/extended the Army Chief's tenure in the somewhat following wording.
"The President of Pakistan is pleased to appoint General Qamar Javed Bajwa for another term of 3 years on the advice of the Prime Minister of Pakistan", this would likely have been the essence, required by the law. Instead, the PM did all of this in just a single notification issued on August 19 this year. These textbook omissions by PTI testify their insincerity and lack of due diligence in their governmental potentiality.
During yesterday’s hearing, the court reemphasised that the prime minister had on his own passed an order reappointing the current chief of army staff for a second term on August 19, whereas under Article 243 of the constitution, it is the ‘president’ who is the appointing authority. An excerpt from the Article 243 of the constitution of Pakistan is hereby reproduced:
The President shall, on advice of the Prime Minister, appoint-
a. the Chairman, Joint Chiefs of Staff Committee;
b. the Chief of the Army Staff;
c. the Chief of the Naval Staff; and
d. the Chief of the Air Staff,
and shall also determine their salaries and allowances.
Compare that with the British system of governance where all the decisions are taken by the PM and his cabinet but in the name of the Queen – her initials endorsed on every government notification. Therefore, Aitzaz Ahsan is right when he says that the courts should not intervene in the prerogatives of the government. However, the court is not challenging the prerogatives of the government. In fact, the Supreme Court is looking into the unfettered use of that prerogative which in effect has resulted from utter ignorance to constitutional conventions. The Supreme Court’s indulgence in the matter is with regard to extension only, not the appointment of the chief.
Moreover, in addition to 'suspension of retirement' and 'limitation of retirement', Rule 255 was amended hastily by the cabinet to include 'extension in tenure' on Tuesday. In the author’s very humble opinion, this move after the electrifying court proceeding on Tuesday, which none expected to turn the way it did, was a very wrong one.
In effect, by doing so, the government admitted the court's preliminary stance that there is something wrong with this extension. The government's change in the rules may have been seen as an attempt to sweep its mistakes under the carpet. Apprehending that, in order to avoid being perceived as such, the government representatives in their press conference proclaimed in advance that this was done in order to 'assist the courts' and 'clear the matters’.
This sort of hurried upgradation is often disliked by the courts and not seen as something bona fide. Perhaps that is why the government still had a tough time arguing with Justices the next day. It would have been a lot better had the government resorted to interpret the existing provisions in their favour and apologised to court with regard to its omission of avoiding the President's Office and securing the votes of all cabinet members in their decision-making.
It may not have necessarily given them a desired outcome, but the best approach after a blunder is to keep quiet.
Aside from all this, this has been very embarrassing for the Army Chief and a lot little for the government. The author has been a strong critic of the establishment's policies, but does not wish to see the country’s Army Chief being ridiculed like that even in the slightest. Whether or not the Army Chief's extension by the govt is accepted by the Supreme Court tomorrow, General Qamar Javed Bajwa is the Chief of Army Staff of Pakistan and deserves respect in the highest sense irrespective of all other issues.
His name got ridiculed like that along with his position, only due to the government's notification on August 19. The general has been put in a very awkward position by the government, involuntarily though as it seems.
One question that has startled almost everyone including the author since this hearing began: “What’s going on?” I could not help but remember the era when the Supreme Court justices after having been restored reluctantly by the PPP government, suddenly became super active.
Muneeb Farooq once asked Najam Sethi the odds of it continuing like that. To this, Sethi gave a very magical answer that the judiciary has long been suppressed by various quarters at different times throughout our history. And that this revamp in the judiciary is like a pendulum, it is going to swing in both the directions until finally attaining a perfect equilibrium. Last three days reminded me of the swing Mr. Sethi referred to a decade ago.
As for the debate that this adventure by the Supreme Court is unprecedented, it takes just one decision to make a new one.
On August 19, this year, PM Imran Khan signed a government notification granting extension to Chief of Army Staff General Qamar Javed Bajwa, which read more like an appointment letter of a class 4 servant. In yet another display of inefficacy by the government, it failed to follow the simplest of protocols required by the procedures.
The COAS has been granted a six-months extension by the Honourable Supreme Court. If the government is to have General Qamar Bajwa as its Army Chief, it must successfully bring in new legislation to secure his chairmanship (and perhaps theirs too?) Because in the event of failure to do so, General Bajwa will have to go home.
The above paragraph can be very conveniently rewritten in different words too. That the Supreme Court has nullified the government’s summary granting extension of 3 years and has effectively told the govt in the most decent of words in the form of a decision that for them to get what they want they will have to bring in a new law via parliament which will explicitly allow the government to grant extension to the Army Chief for a full term.
On this account, the Supreme of Pakistan has formally forbidden all the future and present governments to grant any extensions whatsoever according to law existing as of today and in such act will be rendered unconstitutional. The next six months have renewed the tensions for Imran Khan who keeps saying that now that the endangering numbers in economy have slightly lowered, he shall concentrate on governance.
The SC mainly looked into two questions with respect to the Army Chief's extension - collective responsibility of the cabinet and the Rule 255 of the Army Regulations. The former pertains to shortcomings in procedural law whereas the latter to substantial law – whether the government has the power to give extension in the first place.
Both these standpoints require peripheral examination. To be more precise, in the words of the Honourable chief justice, the court shall be looking into three points; the law, the procedure and the grounds for granting extension, hence bringing into play an extensive legal kit.
The government seems totally oblivious to the principle of ‘collective responsibility’ of the cabinet. They are not to blame though, the way the governments are formed and deformed to expect of them to know what it is to govern would be too much to ask, would it not? In simplest of words, cabinet's collective responsibility is a constitutional convention followed in parliamentary democracies such as Australia, UK, Canada, India and Pakistan, by virtue of which, all the members of cabinet are jointly responsible for government actions.
This is what the Honourable Chief Justice was referring to during the arguments on Tuesday when he said that the majority of the cabinet did not vote in favour of the extension; 11-25, only 11 in favour. "Fourteen members of the cabinet did not give any opinion due to their non-availability", said the CJP.
"Did the government take their silence as agreement?" To this, the evergreen expert Sheikh Rasheed responded later in the day by golden words, "if a member does not say 'no' to a summary then it is taken as positive as per rules and procedure". If we accept this interpretation then technically the PM can govern the whole country with just one cabinet member with the rest not saying 'no'. This explanation was ridiculous to say the least.
Therefore, for the extension to have been valid, either the rest of the 14 cabinet members should have resigned or voted in favour. Once the cabinet had collectively made the decision, it should have been forwarded to the president who then would have appointed/extended the Army Chief's tenure in the somewhat following wording.
"The President of Pakistan is pleased to appoint General Qamar Javed Bajwa for another term of 3 years on the advice of the Prime Minister of Pakistan", this would likely have been the essence, required by the law. Instead, the PM did all of this in just a single notification issued on August 19 this year. These textbook omissions by PTI testify their insincerity and lack of due diligence in their governmental potentiality.
During yesterday’s hearing, the court reemphasised that the prime minister had on his own passed an order reappointing the current chief of army staff for a second term on August 19, whereas under Article 243 of the constitution, it is the ‘president’ who is the appointing authority. An excerpt from the Article 243 of the constitution of Pakistan is hereby reproduced:
The President shall, on advice of the Prime Minister, appoint-
a. the Chairman, Joint Chiefs of Staff Committee;
b. the Chief of the Army Staff;
c. the Chief of the Naval Staff; and
d. the Chief of the Air Staff,
and shall also determine their salaries and allowances.
Compare that with the British system of governance where all the decisions are taken by the PM and his cabinet but in the name of the Queen – her initials endorsed on every government notification. Therefore, Aitzaz Ahsan is right when he says that the courts should not intervene in the prerogatives of the government. However, the court is not challenging the prerogatives of the government. In fact, the Supreme Court is looking into the unfettered use of that prerogative which in effect has resulted from utter ignorance to constitutional conventions. The Supreme Court’s indulgence in the matter is with regard to extension only, not the appointment of the chief.
Moreover, in addition to 'suspension of retirement' and 'limitation of retirement', Rule 255 was amended hastily by the cabinet to include 'extension in tenure' on Tuesday. In the author’s very humble opinion, this move after the electrifying court proceeding on Tuesday, which none expected to turn the way it did, was a very wrong one.
In effect, by doing so, the government admitted the court's preliminary stance that there is something wrong with this extension. The government's change in the rules may have been seen as an attempt to sweep its mistakes under the carpet. Apprehending that, in order to avoid being perceived as such, the government representatives in their press conference proclaimed in advance that this was done in order to 'assist the courts' and 'clear the matters’.
This sort of hurried upgradation is often disliked by the courts and not seen as something bona fide. Perhaps that is why the government still had a tough time arguing with Justices the next day. It would have been a lot better had the government resorted to interpret the existing provisions in their favour and apologised to court with regard to its omission of avoiding the President's Office and securing the votes of all cabinet members in their decision-making.
It may not have necessarily given them a desired outcome, but the best approach after a blunder is to keep quiet.
Aside from all this, this has been very embarrassing for the Army Chief and a lot little for the government. The author has been a strong critic of the establishment's policies, but does not wish to see the country’s Army Chief being ridiculed like that even in the slightest. Whether or not the Army Chief's extension by the govt is accepted by the Supreme Court tomorrow, General Qamar Javed Bajwa is the Chief of Army Staff of Pakistan and deserves respect in the highest sense irrespective of all other issues.
His name got ridiculed like that along with his position, only due to the government's notification on August 19. The general has been put in a very awkward position by the government, involuntarily though as it seems.
One question that has startled almost everyone including the author since this hearing began: “What’s going on?” I could not help but remember the era when the Supreme Court justices after having been restored reluctantly by the PPP government, suddenly became super active.
Muneeb Farooq once asked Najam Sethi the odds of it continuing like that. To this, Sethi gave a very magical answer that the judiciary has long been suppressed by various quarters at different times throughout our history. And that this revamp in the judiciary is like a pendulum, it is going to swing in both the directions until finally attaining a perfect equilibrium. Last three days reminded me of the swing Mr. Sethi referred to a decade ago.
As for the debate that this adventure by the Supreme Court is unprecedented, it takes just one decision to make a new one.