There are episodes in the life of a nation that expose the real nature of its polity. One removes the veil from the façade of power and exposes its real face. One such episode took place recently that has displayed the true nature of power structure in Pakistan. Nothing has been left to the imagination of the people.
The latest episode arose from the issue of extension/reappointment of the Chief of Army Staff (COAS) and its resolution. The controversy focused on the extension given to General Qamar Javed Bajwa as COAS by the Government for a period of three years. His term of three years as COAS was due to expire on 28.11.2019. It took a critical turn when the Supreme Court of Pakistan suspended the operation of the order/notification in respect of extension/reappointment of General Bajwa as COAS for another term in the office. However, after two days of extreme anxiety, the Constitution Petition (against extension of tenure of COAS) was disposed of vide order dated 28-11-2019 DIRECTING THE Federal Government to initiate legislation in the parliament within six months for specifying the terms and conditions of the office of COAS.
Though the above controversy was resolved for the time being, but it remained very much alive. It is a reality that there was no provision either in the Constitution or in the ordinary law which would allow extension/reappointment to the office of COAS. Prior to the 1973 Constitution, Pakistan Army was headed by Commander-in-Chief (C-in-C) which office had been held by General Ayub Khan, General Musa Khan, General Yahya Khan and Lt. General Gul Hasan Khan. The last of the above resigned as C-in-C on 4thMarch 1972 and on the same day, Mr. Zulfiqar Ali Bhutto addressed the nation as President of Pakistan (as he then was) in which he announced the acceptance of his resignation. He announced that, henceforth, the post of C-in-C would be abolished which office he described as anachronistic and obsolete. He announced new designation of the Chiefs of Staff for all the three armed forces which practice he said existed at that time in many countries and was working successfully there. He said that the office of the C-in-C gave rise to Bonapartic tendencies in the country. He thought, change of the designation would lead towards professional tendencies in the armed forces. He made it clear that there would be fixed tenure of COAS and under no circumstances there would be extension of that tenure .
This was the beginning of fixed period of tenure for the office of COAS of the three armed forces. General Tikka Khan was appointed as first COAS for a fixed tenure of four years on 04.03.1972.On has retirement, General Zia-ul-Haq was appointed as COAS on 05.03.1976, this time for a term of three years, which has remained so ever since. However, a white paper was issued by Bhutto Government in May 1976 which reorganized higher defence organization by creating a Defence Committee of the Cabinet (DCC) chaired by the Prime Minister as Defence Minister. The DCC would formulate policies for the defence of the country. In this white paper, the Bhutto Government also created the office of the Chairman of Joint Chiefs of Staff Committee.
Hence all Chiefs of Staff of the three Armed Forces as well as the Chairman of the Joint Chiefs of Staff Committee would be appointed for a fixed term (initially four years and later three years); the idea of joint command was introduced and there was no concept of extension / reappointment after the expiry of the term of office of any of the Chiefs of Staff or their Chairman.
After 1976 appointment/extension/reappointment of Chiefs of Staff has been irregular, chaotic, chequered and subject to political developments in the country. The second COAS General Zia-ul-Haq who took over power in a military coupin July 1977, decided to continue himself in office as COAS as well as Chief Martial Law Administrator. He assumed the office of President at the end of 1978 and on the expiry of three years in March 1979, he extended himself as COAS which order of extension was passed by him as the President of Pakistan. He kept extending himself every three years as COAS, wearing two caps at the same time. He met his tragic end on August 17, 1988. General Aslam Baig replaced him as COAS on 17 August 1988 and served for a term of three years. His services were not extended, and he retired in August 1991. His successor General Asif Nawaz held this office till January 1993 when he died suddenly. General Abdul Waheed Kakar was appointed COAS and retired in January 1996. He was replaced by General Karamat Jehangir as COAS in January 1996 but resigned in 1998. He was succeeded by General Pervez Musharraf in 1998 who took over power in a military coupon 12 October 1999. He followed the practice of his predecessor General Zia and kept extending himself as COAS every three years until November 2007 when political situation in the country forced him to quit as COAS and was replaced by General Ashfaq Pervez Kayani. The only extension of tenure / reappointment of COAS during civilian period happened in 2010 when Peoples’ Party government at the federal level was pressurized into giving three years extension/reappointment to General Ashfaq Pervez Kayani from November 2010 onwards. On his retirement in November, 2013, General Raheel Sharif served as COAS until November 2016. He was succeeded by General Qamar Javed Bajwa from November 2016 which term expired on 28 November 2019.
It is thus clear that with the exception of General Kayani, no other COAS had been extended in tenure / reappointed as COAS by a civilian government. The office of COAS became an instrument of power in the hands of military dictators like Zia-ul-Haq and Musharraf. This office had been used as the power base to rule the country. Except for the two documents referred to above, there was no provision of law or the Constitution that would clarify the creation of the office of the COAS, his term of office and extension thereof. Due to overwhelming influence of Armed Forces in politics of Pakistan, no Court in Pakistan would dare touch this subject. Exercising original jurisdiction under Article 184(3) of the Constitution, the Supreme Court on 26 November 2019 opened up such an important and sensitive issue affecting both the defence structure in the country as well as the politics of Pakistan. During these three hectic days, there were number of Cabinet meetings and consultations. It was a sad sight to see General Bajwa attending a Cabinet meeting thus displaying unnecessary anxiety and interest in prolonging his stay in the office of COAS. It also exposed the government which appeared to be dependent on the incumbent COAS for its continuation in power.
It remains a mystery as to why, on 28-11-2019, the Supreme Court backed off from setting aside the notification of appointment/reappointment/extension of General Bajwa for another term of three years starting 29 November 2019.The nation would have appreciated if the writ of the judiciary in Pakistan would have extended to the appointment of COAS. Once again, the judiciary appears to have capitulated under pressure before the powers that be.
In light of the history of Pakistan, the extension in service has been used as an instrument by the military dictators to perpetuate themselves in power. The civilian governments that have been formed from time to time, have proved to be too weak to resist the pressure of the incumbent COAS for extension in office. Furthermore, this office has become very critical in view of political engineering on the part of armed forces to get the result of their choice in the general elections and for consequential transfer of power. A relationship of principal and client has developed between the two which is neither good for democracy nor for the morale of the armed forces. Therefore, the original announcement of Mr. Bhutto in 1972 that no extension in the office of Chiefs of Staff of the armed forces would be allowed under any circumstances has assumed greater importance in the present circumstances.
The episode from 26 November to 28 November 2019 thoroughly exposed the government, the army and the judiciary. The government appeared to be absolutely incompetent in handling issue of appointment / extension / reappointment of COAS. It fumbled in its anxiety to have General Bajwa extended in office. General Bajwa was exposed being desperate to hold on to the office of COAS and in the process lost his grace and composure. At the end, the judiciary lost face by capitulating before establishment. Hence, all three of them appeared to be losers.
However, the question remains as to whether the matter of reappointment / extension can be resolved by an amendment in the Army Act 1952 or it would require a Constitutional Amendment.
The relevant part of Article 243 in the original Constitution read as under:
“243 (2) The President shall, subject to law, have power –
- to appoint the Chief of Army Staff, the Chief of Naval Staff and the Chief
of Air Staff, and determine their salaries and allowances.
Article 243 was amended from time to time. Finally, it was substituted by the 18thAmendment in 2010, and reads as under:
“ The President shall on advice of the Prime Minister, appoint –
- the Chairman, Joint Chiefs of Staff Committee;
- the Chief of the Army Staff;
- the Chief of the Naval Staff; and
- the Chief of the Air Staff;
and shall also determine their salaries and allowances.”
One of the most noticeable features of the Article 243 as regards the appointment of COAS and other Chiefs and their Chairman is that in the original text of this Article, the power of appointment by the President was ‘subject to law’ but the same did not so exist after successive amendments. Therefore, there is no requirement of being made ‘subject to law’. Thus the law (meaning ordinary law like the Army Act) no longer regulates the appointment of COAS. That an appointment of COAS is now made under the Constitution only and can only be regulated by the ConstitutionNo ordinary law like the Army Act can regulate such an appointment. So an amendment made in the Army Act by the Parliament cannot regulate extension / reappointment of COAS which can only be made through a Constitutional Amendment. Thus the direction of the Supreme Court in this regard has to be read as reference to Constitutional Amendment.
There is another anomaly in the sense that the Chairman JCOSC and the Chiefs of Staff of Navy and Air Force have not been given any extension in their offices during the past 45 years. This problem has only occurred in respect of COAS which means that extension has no rationale with regards to working and command of the concerned armed forces. The problem of extension / reappointment in respect of COAS has a clear power connotation as, in the past, this office has been used to usurp power unconstitutionally and to perpetuate oneself in power by giving extensions. Even during the civilian government, the office of COAS is used to dominate the power structure. In either case, it is a perversion, if not subversion, of the Constitution. Every institution and its office holders ought to confine itself / themselves to the role assigned to it / them under the Constitution. Why should the law or the Constitution be amended to fulfill the desire of an individual? Proper functioning of the institution with smooth succession in its command structure should be a matter of highest consideration.
The story did not end with the order of the Supreme Court on 28 November 2019. It took another critical turn thereafter. The action moved from the Supreme Court to the Parliament but the latter proved to be even more pliable than the former. Six months were too long to let the issue continue to agitate particularly for a general used to exercising unbridled power over the previous three years. On the one hand, the government was pushed to file a review petition in the Supreme Court for review of the order of 28-11-2019 and on the other hand, it was forced to move a Bill for amendment in the Army Act, providing for reappointment or extension in the office of COAS. The government complied with both in great urgency. The government which was otherwise on loggerheads with the opposition became more than willing to seek its agreement to the proposed Bill. The main opposition parties in the Parliament, PML-N and PPP, seem to have already been goaded into agreement with the government on the Bill. Consequently both the opposition parties reached an agreement with the government on the Bill.
Thus Bills for amendments in the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 were moved in the National Assembly. The amendments in the other two laws were only window dressing just to display ‘equality’ in this legislation. The Bills were passed in the National Assembly without any debate on 7 January 2020. They were then moved before the Senate and were passed on 8 January, again without any debate. They became Acts of the Parliament on 9 January with assent of the President. So for a change, Parliament proved to be so efficient.
Under the Amendment a new chapter has been added, by providing for appointment, reappointment or extension of COAS and his retirement age.
The term of COAS has been fixed at three years but can be extended for another term of three years subject to the retirement age of 64 years. However the justification for extension / reappointment has been given as ‘national security interest or exigencies, from time to time’ as determined by the President on the advice of the Prime Minister. Such a justification is always available to anyone who wants to avail it.
The entire episode that culminated into the said Amendments passed by the Parliament is clearly indicative of the short sightedness of all the concerned institutions. Larger interest of the institution of armed forces has been sacrificed at the altar of desire of a COAS to continue in office so that he remains the de factoruler of the country. The judiciary deliberately left the matter open and involved the Parliament in the matter of future appointment as COAS or Chairman JCOSC. The Parliament, regardless of the government or the opposition, failed to resist the pressure of COAS to rubber stamp the amendments proposed by the military establishment.
The curtain has been drawn, at least for the time being, on the saga of the reappointment / extension of COAS after the amendments by the Parliament. However, the following conclusions can be drawn from this shameful episode:
- The office of COAS in Pakistan is more powerful than the entire Executive and Parliament in the country. The Executive including the Prime Minister and the Cabinet on the one hand and the President and Parliament, including the government and opposition benches, on the other hand, dance to the tunes set by the military establishment and cannot deviate from what is dictated to them. Parliament has virtually been reduced to an army barrack wherein the members parade according to the military band played to them.
- The question of extension / reappointment to the office of COAS has not been settled by the legislation but has opened up a pandora box for future controversies. Henceforth, no COAS will be satisfied with one term but will claim extension / reappointment for another term as a matter of right. He will ensure himself the role of a de factoruler of the country thus bringing himself into the position of pressurizing the Prime Minister and the President to extend / reappoint him for another term which they would most likely comply. In this way, these prime constitutional offices have been further weakened and democratic dispensation in the ultimate victim. The term of office of COAS has been enhanced to six years for all intents and purposes. At the same time, it will negatively affect the morale of the Army, particularly those who are in line for promotion. It is harmful for the armed forces. The emphasis appears to have moved from institution to individuals which is an unfortunate development.
- The entire episode has further weakened the position of civilian governments under the Constitution. A message has gone worldwide that the heads of the State and the government in Pakistan are only dummies and the real power lies with the military establishment. No wonder the U.S. Secretary of State calls up the COAS rather than the Prime Minister or the Foreign Minister. There is much more to come in this way. The entire Constitutional framework or structure has been rendered ineffective in this power game. It used to be said that the way to power in Islamabad lies through Rawalpindi (GHQ) but now even this is no longer true. The power now stops in Rawalpindi and Islamabad is only a side show. What is abhorrent in all this is that the Executive and the Parliament have willingly and readily accepted such a demeaning position.
- The judiciary has not come out looking good in the entire scenario. It could not resist pressure and capitulated before the military establishment. It has bent backward to accommodate an ambitious COAS by formulating another ‘doctrine of necessity’ extending incumbent COAS by six months when admittedly there was no provision in the law or the Constitution authorizing such extension. Thus the judiciary has abided by its old reputation of being pliable in the face of the establishment by rendering verdicts in latter’s favour.
- All the three major political parties namely PTI, PML (N) and PPP, participating in this unfortunate drama, have legitimized political engineering on the part of military establishment. Each one of them seems to favour rigging and electoral manipulation provided that it benefits itself and helps it to come to power. Each of these parties is running after a mirage of power knowingly well that they cannot deliver to the people.
- Although the matter of extension / reappointment in the office of COAS cannot be settled by amendment in the ordinary law, yet considering the muscles of the military establishment, it would have been no problem for the latter to have a Constitutional Amendment passed by the Parliament.
In a nutshell, it is obvious that the so called democratic forces in Pakistan are dependent upon undemocratic forces and entire power structure or set up is a farce. Every time the judiciary tries to change the status quo, it ends up strengthening it further. The country is stuck in a vicious cycle and with every turn of this cycle it gets narrower and narrower with the people of Pakistan stuck up and strangulated in this narrowing cycle. It is painful to see all this happen particularly after 72 years of our existence when Pakistan was democratically achieved with the potential of being a democratic entity. WHAT A SHAME?
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