Why Pakistan’s powerful Army & assertive judiciary are on an unprecedented collision course

Chief Justice Asif Khosa has suspended the extension granted to Army chief Gen Bajwa, an unprecedented challenge to Army’s unbridled authority in Pakistan.

Pakistan Army chief General Qamar Javed Bajwa | File photo: Flickr

New Delhi: In an unprecedented move, the Chief Justice of Pakistan Asif Saeed Khosa Tuesday suspended the three-year extension granted to the country’s Army Chief Gen Qamar Javed Bajwa, sending the country into a spell of shock and uncertainty.

This is the first time when the all-powerful Army, which controls everything in Pakistan, is on a collision course with an assertive judiciary that has sent the Imran Khan government into a tizzy.

Just hours after the three-member Supreme Court bench suspended the notification for extension, while hearing a petition filed before it by an unknown group, Federal Law Minister Farogh Naseem resigned from his position to appear as the lawyer for the government.

The cabinet met soon and amended the Army Regulations (Rules) to include a provision for an “extension in tenure” of the army chief.

Interestingly, Gen Bajwa had famously said last year he would not seek an extension and retire on 29 November, which is two days away. 

The first spark — Bajwa gets a not-so-surprising extension

Prime Minister Khan had on 19 August approved a three-year extension to the Army chief’s tenure. Gen Bajwa had taken over in 2016.   

The announcement, however, went against Khan’s own stated position on the issue. 

As an opposition politician, Khan had himself praised former Pakistan Army chief Gen Raheel Sharif for “refusing” to extend his tenure and said judges and generals should never be given extensions.

Bajwa’s extension marked the second time in nearly a decade that the country’s top general had his traditional three-year term extended.

The first was in 2010 when the then chief Gen Ashfaq Parvez Kayani was granted an extension by the then prime minister Yousuf Raza Gilani, after consultations with then president Asif Ali Zardari.

Gen Bajwa’s extension, however, created a flutter among the top military commanders and even political parties.

Rana Banerji, who headed the Pakistan desk at the Research and Analysis Wing, India’s external intelligence agency, noted that while Bajwa can continue as COAS till November 2022, as many as 17 three-star generals, who could have had a chance to become the chief otherwise, will retire before he hangs up his boots.

“Understandably, this decision did not go down very well with the senior collegiate leadership of generals, including his corps commanders,” he wrote. “They would have seen it coming, but had no choice than to fall in line.” 

The unexpected scrutiny 

The extension given to Gen Bajwa was challenged by an unknown group — Jurist Foundation — which wanted the apex court to declare it null and void and illegal.

A three-member bench, comprising the chief justice, Justice Mazhar Alam and Justice Mansoor Ali Shah, began hearing the matter.

Suspending the extension Tuesday, Justice Khosa said “only the President of Pakistan can extend the tenure of the Army chief”.

He noted that only 11 out of 25 cabinet members had approved the extension.

“Fourteen members of the cabinet did not give any opinion due to non-availability,” Justice Khosa said. “Did the government take their silence as agreement?”

“Those who did not say ‘yes’ had not taken part in voting,” the attorney general informed the top court.

To this, the judge noted: “Does the cabinet not want to give members time to think? The 14 members of the cabinet still have not said ‘yes’ to army chief’s extension.”

The Supreme Court came down heavily 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,” the court’s order stated.  “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 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.

The judge who had also taken on Musharraf

Justice Asif Saeed Khosa took over as the 26th Chief Justice of Pakistan on 18 January.

Justice Khosa, whose tenure is less than a year, has in the past hinted at extensive reforms to pull the judiciary out of a quagmire, especially the ballooning number of backlog cases.

He is known for standing up to the powers and even challenged former dictator Gen Pervez Musharraf and was sacked in 2007 for it. On 3 November 2007, Musharraf had declared a state of emergency and suspended the constitution. He demanded the judges of the superior judiciary to retake oaths under the Provisional Constitutional Order (PCO). However, Justice Khosa refused to abide by the presidential order and was sacked.

Justice Khosa was restored to his prior position as a high court judge on 18 August 2008, in the wake of an unprecedented mass movement to restore the superior judges sacked for not retaking their oaths under the PCO.