ISLAMABAD: Today could make history and sculpt our future in ways that were hard to visualise till 48 hours ago.
The stakes could not be higher. Chief of the Army Staff General Qamar Javed Bajwa will retire as the clock chimes midnight today unless his re-appointment or extension order — suspended by the Supreme Court (SC) on Tuesday — is restored before the deadline. The timing of the court decision therefore is as important as the substance of the decision. The arguments that should form the basis of the substance, however, painted a hazy picture on Wednesday.
Much of this haze was generated by the government and amplified by the attorney general. In fact, the government’s dealing of this entire affair has been amateurish to the extreme. This ineptitude has unfolded in layers and has raised very serious questions about the ability of the current officialdom to deal with even routine matters of governance like issuing a notification. The first layer manifested itself in the prime minister issuing an order in August notifying the re-appointment of the army chief for another term. After a belated realisation that the notification had to be issued by the president and not the prime minister, the blunder was rectified. The second layer of incompetence bubbled to the surface when the SC on Wednesday found illegalities in the procedure for the notification and suspended it. The government then made some additions in the relevant rules and argued in front of the court that they had their paperwork ready. It was only then that the court informed them that the laws on which they had now based their notification did not in fact apply to the army chief. In other words, the government had goofed up — again.
As a result, Wednesday was weighed down by uncertainty and an air of nervousness that hung over the federal capital. It was almost as if politics had been stunned into silence and the system had waded into legally — and politically — unchartered territory.
In this alien space, what will Prime Minister Imran Khan and his cabinet do now after having suffered ignominy after ignominy in the last two days?
In line with the incisive questioning of the three-member bench led by Chief Justice Asif Saeed Khosa, the attorney general will need to present clear and categorical answers about the following:
(a) The legal procedure the government will apply to re-appoint Gen Bajwa for another term, and how this procedure addresses key objections raised by the court;
(b) The status of Gen Bajwa being given an extension or being re-appointed. The court has raised this distinction repeatedly during the proceedings and wants to know if “re-appointment” means the general will retire and then be re-appointed as the army chief for another term;
(c) The reason itself for giving Gen Bajwa an extension (or re-appointing him, as the case may be).
These are weighty questions and the court has shown in the last two days that it wants to unpeel the issue in order to bring about absolute clarity. It is this clarity that has been missing from the arguments being peddled by the government through the attorney general, and it is this clarity that he will need to bring with him to the court this morning. That is a tall order.
So what can happen now? Some scenarios present themselves:
(1) The government presents a new and amended notification to the court this morning and the court accepts this as legally and procedurally valid. Gen Bajwa is then officially notified as the chief of army staff for another three years;
(2) The government presents a new notification and the court still declares it not valid. The suspension of the notification holds and Gen Bajwa retires at midnight. The government would then have to either hand the charge of the army chief to someone else within the high command (as per rules) or appoint a new person (which may be difficult given the midnight deadline);
(3) The court accepts the new government notification and delivers a judgement that lays down new rules and requirements for such extensions;
(4) The court orders amendments or additions or changes in the relevant laws and rules governing such appointments;
(5) The government could decide to opt for the ordinance route. It could circumvent the objections of the court by legalising the extension through an ordinance which empowers the prime minister and the president to notify Gen Bajwa as army chief for another three years. The court could obviously rule on the ordinance too.
There is however a wider dimension to this affair. This relates to the manner in which the army chief’s job prospects have been treated — as per the chief justice — like a “shuttlecock”. The events of the last two days have been rather unprecedented in numerous ways, one of which is the adverse perception generated by government’s mishandling of the very sensitive matter. The office of the army chief, powerful as it is, has always been surrounded by an air of deference and awe. The ‘shuttlecock’ treatment it has been made to endure in the last 48 hours is rather unfortunate whichever way you look at it.
But perhaps there is a silver lining too. The SC now has an opportunity to lay down rules that will bring absolute clarity in procedures which will ultimately strengthen institutions. The court could, through its judgement, spur greater institutional equilibrium and inject finesse in how the critical appointment should be made.
Pakistan is unfortunately not a stranger to institutional logjams. Many such crises have ended with extremely unpleasant consequences. This morning when the proceedings in the SC start, memories of such systemic jolts would not be far from the minds of those present. Today, however, also accords us an opportunity to prove that our system has learnt from past mistakes and is now capable of correcting itself when faced with a complicated situation.
Today could truly make history.
Published in Dawn, November 28th, 2019