Apex courts rule in accordance with law, not political whims
The Supreme Court of Pakistan has been struggling to maintain its impartiality in political-cum-constitutional cases. It had already sacked two prime ministers – Syed Yousuf Raza Gillani in 2012 and Mian Muhammad Nawaz Sharif in 2017. However, the recent move was the first time that it pried into the tenure extension of the Chief of Army Staff COAS.
The Supreme Court made a very revealing decision in the unique case about serving Army Chief Gen. Bajwa's tenure extension on Nov. 28. It stated: “the current appointment of Gen. Qamar Javed Bajwa as COAS shall be subject to the said legislation and shall continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service.” Simultaneously, the court warned the government that if the parliament fails to enact within six months a law governing the extension, “the appointment will become illegal.”
The Supreme Court’s decision in the COAS's case will have lasting implications for the institutional power dynamics in particular and the political system in general. It has not only improved the credibility of the apex judiciary, but also obliged government officials and the common man to approach the court with proper preparation.
Dr. Zafar Nawaz Jaspal
On Nov. 26, while exercising its judicial review authority, the Supreme Court suspended Gen. Bajwa’s previous three-year extension notice issued by the government in August. Instead of allowing the move as precedent, the court's judges preferred to settle the lacuna or limitation of the customary law through proper legislation and also to mend the vagueness in the Army Rules and Regulations (ARR). This entire judicial exercise exposed legal and procedural gaps.
The Supreme Court’s decision on Gen. Bajwa’s case set a precedent in challenging the appointments of military officials. It also obliged the government to act in accordance with the law in civil-military bureaucracy affairs, instead of allowing it to following the improper practices set by previous political and military regimes. During the hearing, the judges also drew attention to unprofessional attitudes within the country's bureaucracy.
Instead of sticking with Prime Minister Imran Khan’s prerogative enshrined in the constitution and norms of the parliamentary system of government, the premier's legal team rushed to revamp its tactics to satisfy the apex court. It hastily amended section 255 of ARR by including the words “extension in tenure.” Subsequently, it prepared a new notification, got it approved by the federal cabinet, secured the signatures of both the prime minister and President Arif Alvi, and submitted all documents to the court.
Chief Justice Asif Saeed Khosa’s approach to the COAS's extension showed that the apex court is vigilant about the execution of the law of the land. The Supreme Court's moved had temporarily shaken the government, but also saved it from litigation. It also alarmed the federal cabinet to operate according to the rules of the business and forced the government to legislate on the matter of COAS extension or reappointment.
Justice Khosa has been struggling to establish the independence of the judiciary in letter and spirit. While responding to the prime minister’s statement on the judicial relief of former premier Sharif, he categorically stated that the government should release him. Court decides, according to the law and facts which the government presents. If a petition is grounded in guesswork instead of empirical data, it will be doomed to fail. The message of the chief justice was loud and clear; if anyone approaches the judiciary for adjudication, he or she ought to be clear that judgment will not be based on whims.
The Supreme Court’s decision in the COAS's case will have lasting implications for the institutional power dynamics in particular and the political system in general. It has not only improved the credibility of the apex judiciary, but also obliged government officials and the common man to approach the court with proper preparation. It reconfirmed that the court decides according to the law and facts rather than politics.
- Dr. Zafar Nawaz Jaspal is an Islamabad-based analyst and professor at the School of Politics and International Relations, Quaid-i-Azam University. E-mail: [email protected]