NEVER before in our history has our government, judiciary and chief of army staff been locked in such unnecessary combat. Last week, after three days of unseemly judicial wrangling, all three emerged wounded — by each other.
The issue that gripped the attention of the Supreme Court last week was not an abuse of power or subversion of the Constitution, or even the belated coronation of a military usurper. It was something mundane: the terms and conditions applicable to one functionary in the enormous apparatus of our country’s governance.
The case began quietly on Nov 26. An imperfect petition proffered by a serial spoiler, who has been known to disrupt serious cases over the past 10 years, was presented to a three-member Supreme Court bench, headed by the honourable chief justice. The petitioner tried to withdraw his petition, but the bench decided otherwise. His petition appeared to transform into a suo motu case.
For the next two days, the bench teased the attorney general, giving him enough rope with which to tangle the government. Even on the scaffold, the attorney general refused to recant. He denied that the letter issued by the prime minister on Aug 19 granting the COAS an extension of three years was ultra vires, or that the approval of the president had been defective, and that the seminal approval required of the cabinet had been ignored as an unnecessary frivolity.
The issue that gripped the court’s attention was something mundane.
Deflected by his obduracy, the bench decided to extend the debate. In an unprecedented display of judicial bravado, the Supreme Court bench issued notice to the COAS himself. The government’s reaction was swift. The law minister resigned, not as an admission of failed incompetence, but to appear as counsel for the COAS, after his lapsed bar council licence had been restored.
On the evening of Nov 27, yet another cabinet meeting — a third — was convened and attended by every cabinet member to ensure validity. In a novel twist of accepted convention, the COAS sat in the meeting, assisted by the former law minister, now his counsel. No one thought fit to question the propriety of his presence.
On Nov 28 — coincidentally the last day of the army chief’s tenure — the attorney general presented the honourable bench with a summary containing ephemeral undertakings by a desperate government. The bench deliberated on it and mid-afternoon, it issued a short order granting the COAS an extension in the first instance of six months, subject to certain provisos to be approved by parliament. Thus, was Caesar thrice offered the crown, and thrice did he accept it.
The wording of the Supreme Court’s short order merits scrutiny. Para 5 states that “the learned Attorney-General has categorically assured the court that this practice being followed is to be codified under the law and undertakes that the Federal Government shall initiate the process to carry out the necessary legislation in this regard and seeks a period of six months for getting the needful done”.
On this assurance, the bench decided “to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament”. A split infinitive split responsibility between an incompetent government and a disorderly parliament unused to rational legislation.
Any layman can predict that within six months, the government will initiate the process, thus meeting that condition. Parliament will then debate on it. The public can expect a spectacle of foolhardy parliamentarians, huddling under the umbrella of parliamentary privilege, ventilating civil grievances that some ears in the official gallery might find unwelcome.
The PTI government will then accuse the PML-N and PPP of irreconcilable intransigence. Should, by some sleight of mailed fist, an agreement be reached between the government and the opposition parties, that consensus will need the approval of both houses. Remember, the PTI has a majority in the National Assembly, the opposition parties in the Senate.
Whatever shape that amendment/clarification may take, predictably it will provide for the tenure of a COAS to be ‘for a period of up to three years’. An obsequious pen might add: ‘in the first instance’.
Some had expected that the Supreme Court might order suo motu that the rule of seniority should apply. After all, the chief justice is himself due to retire on Dec 20. To some, it serves as an example.
On the first of each month, every person employed by the state — whether elected lawmakers, bureaucrats, judicial officers or the militocracy — receives remuneration drawn from the national exchequer. Surely the public deserves something better in return than salaried, flawed Caesars?
The writer is an author and historian.
Published in Dawn, December 5th, 2019