The petition that nearly wasn’t

December 03, 2019

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The writer is a journalist.
The writer is a journalist.

IT began with confusion and ended without a bang. As with all such crises in Pakistan, we were held captive for three days, with many a prediction of gloom and doom — there is no other kind — before it ended (to the satisfaction of few).

Read: Gen Bajwa to stay on as COAS for 6 more months: SC

The petition that wasn’t turned into a suo motu that wasn’t when a petitioner approached the Supreme Court against army chief Gen Qamar Javed Bajwa’s extension, and the chief justice, who had so far resisted the temptation of public interest litigation under Article 184(3), picked it up and heard it. And he did so despite the petitioner’s change of mind; the latter wanted to take a U-turn, which has become the flavour of the day, but apparently couldn’t do so because the court had made up its mind. Three days of faulty notifications with the wrong dates issued under incorrect articles of the law and the court let matters be, on the condition that parliament address the issue once and for all.

Parliament is supreme, you see. But what if this supreme institution had decided that the matter was best left as it is? And yet the ‘crisis’ has highlighted how little has changed in our polity.

It indicated once again that judicial activism or judicial restraint is the choice of individuals and not built into institutions. The present chief justice had focused on setting the (judicial) house in order and he did so despite some criticism from those who had come to admire his predecessors’ care for all matters executive. But on the eve of his retirement, it appeared that his patience gave out.

What is parliament now supposed to do? Give the power to the government to grant an extension?

The government’s incompetence aside, much of the confusion was due to the absence of the law which allowed for an ‘extension’; but of course, for those reporting and commenting on the matter, more attention was paid to the incompetence, for no one was honest enough to say that law tends to be silent when politics is at play. (As a result, once again, all the blame was placed on the civilian government, the only scapegoat when the other players cannot be faulted). The past ‘practice’ had become the normal due to realpolitik.

So with our newfound love for all things democratic and legal, we all expressed horror and astonishment and the court has now ordered parliament to decide on filling the gaps in the law, while allowing the original decision to continue for six months. And in the process of acknowledging the supremacy of parliament, it is also being argued that it was forgotten that parliament, which passed the 18th Amendment, perhaps made a conscious decision to not touch this issue!

The poor politicians will once again be forced to bear the heavy burden of our hypocrisy. The controversy is far from over and may even get messier. But then, it is a grand old tradition of our politics that judicial intervention rarely fixes what are essentially political problems. The extension saga may turn out to be no different.

There is little detail right now on what parliament is to do except that it has to legislate if the army chief is to get an extension, for who can simply let the executive make these decisions? After all, some legal experts do argue that if the law doesn’t expressly forbid an individual from holding office for just one term, the executive enjoys the power to extend his/her services.

God forbid that we let the executive exercise such discretion. Any possible deviation from the law must be and has to be challenged. This is not to say that an extension is to be blindly supported but simply to say that a decision can be controversial or have its supporters and detractors, even if it is legally allowed.

But what is parliament now supposed to do? Give the power to the government to grant an extension (post-retirement appointment or however else it is phrased) to an army chief? For whatever term it wants — a year or two or three or more?

That may prove too problematic a law. Especially one done under a court verdict. It will attract more controversy for it may be called person specific or it may then legitimise a decision that at the end of the day, is not without its opponents. In addition, there was a report or two in the press that the act of parliament would apply to all the services and not just the army.

PPP MNA Naveed Qamar suggested on a TV talk show recently that it may be better to specify a term, making it longer if need be than the present one, than simply provide a blanket cover to an extension. He has a point. Because the latter — once codified into law — will make it next to impossible for any individual and any government to not agree to one; such is the politics which made the past practice kosher.

But once again, it remains to be seen if parliament actually has the space to debate and decide and won’t just end up agreeing to whatever is sent its way. Many fear that this is what will happen — legalising a political reality so to speak. Whether that is better than an ambiguity in law which ignored the situation on the ground will be unveiled over time.

And what if the parliament is not able to legislate within six months? It is a question already being asked in whispers. Will the court be asked for another deadline? A review of its first verdict? The possibilities are many.

Meanwhile, uncertainty will emerge as the only constant. And the only winner, while experts hold forth on how such steps strengthen democracy. But what if these court proceedings, one day, are compared to those where the judges asked the government of the day if it planned to try Musharraf under Article 6? In hindsight, what did it achieve? There is still no clear answer.

The writer is a journalist.

Published in Dawn, December 3rd, 2019