New Delhi: The decision by Pakistan’s Supreme Court Tuesday to suspend the Imran Khan government’s August notification that gave a three-year extension to Army Chief Gen Qamar Javed Bajwa, has come as a surprise. Bajwa is to retire on 29 November.
A three-member bench, comprising Chief Justice Asif Saeed Khosa, Justice Mazhar Alam and Justice Mansoor Ali Shah, was hearing a petition filed by Jurist Foundation, which had challenged the extension urging the court to declare it null and void and illegal.
The notification stands suspended until the court’s hearing Wednesday.
Over the years, academics have argued that judicial independence in Pakistan not only ceases when it comes to matters of the military but also helps them consolidate power. But the decision of the Pakistani Supreme Court stands in sharp contrast to that argument as it is an evidence of the country’s judiciary finally asserting itself against the military.
Why did the court reject the notification?
On 19 August, a notification issued by Prime Minister Imran Khan’s government extended the tenure of Bajwa.
“General Qamar Javed Bajwa is appointed Chief of Army Staff for another term of three years from the date of completion of current tenure,” stated the notification.
Hearing the petition Tuesday, the Supreme Court issued notices to the defence ministry, the federal government and even the Army chief.
There are three major procedural reasons provided by the Supreme Court.
First, the court cited regulation number 255 of the Army Regulations (Rules) and argued that the said provision can be “invoked after an officer has already retired from service”.
“Suspending a retirement or limiting a retirement before the retirement has actually taken effect may amount to putting the cart before the horse,” said chief justice Khosa.
In essence, the CJP pointed to the fact that while the Army chief is retiring on 29 November, the notification was issued way in advance — in August.
Second, the top court pointed out how the notification did not have the approval of the President.
According to the CJP, only the President can “extend the tenure of the army chief”. The notification was issued on 19 August, and the cabinet and the prime minister approved it on 20 August and 21 August, respectively, but there was no further approval from President Arif Alvi.
Third, the court pointed out how only 11 of the 25 cabinet members had approved the extension.
“Fourteen members of the cabinet did not give any opinion due to non-availability. Did the government take their silence as agreement?” remarked Khosa.
The Supreme Court remarked that the decision to extend the tenure of the Army chief was an important one and there seemed to be a lack of deliberation about it.
“No reasons for extensions were debated in the cabinet,” noted Justice Shah.
The written order also pointed out how after the cabinet approved the decision, there was no reconsideration either by the President or the prime minister.
The most substantive criticism by the Pakistani Supreme Court came when Attorney General Anwar Mansoor Khan argued that the Army chief was “being granted in light of the regional security situation”.
Responding to this, Khosa remarked, “If the regional security situation reasoning is accepted, then every army officer would want a re-appointment.”
The top court elaborated on this point in the written order and noted that the “regional security argument” was “quite vague”.
“If at all there is any regional security threat, then it is the gallant armed forces of the country as an institution which are to meet the said threat and an individual’s role in that regard may be minimal. If the said reason is held to be correct and valid then every person serving in the armed forces would claim re-appointment/extension in his service on the basis of the said reason,” the court’s order stated.
The CJP also asked how could the government determine if the “emergency” security situation would remain as such for the next three years — the proposed period of Bajwa’s extension.
What does this mean for judicial independence in Pakistan?
Political experts have tried to categorise Pakistan as either a flawed democracy or a hybrid regime. Regardless of the precise categorisation, absolute judicial independence has never been a feature of Pakistan.
But Pakistan also saw extended Lawyer’s Movement in 2007 over the suspension of then-Chief Justice Iftikhar Muhammed Chaudhary by President General Pervez Musharraf.
Chaudhary was reinstated in 2009 and for the next few years Pakistan saw unprecedented “judicial activism”.
Justice Mian Saqib Nasir, who became the CJP a few years after Chaudhary retired, further doubled down on judicial activism.
But even at the peak of its judicial activism, the top court shied away from intervening in military affairs.
“An in-depth analysis of the Supreme Court’s working under both Justice Chaudhry and Justice Nisar will reveal that they never really challenged the military’s dominance in the polity,” noted Asad Jamal, a lawyer at Lahore High Court.
CJP Khosa’s term has been marked by an absence of judicial activism, and this judgement comes just 20 days before he is set to retire. It is possible that the top court will overturn the suspension in future hearings.
“To be clear, if this is Khosa’s last move, his final gambit, and this leads to nothing — you’ve lost, CJP…,” tweeted Cyril Almeida, former staff writer at Dawn.