A debatable solution

January 09, 2020

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I.A. Rehman
I.A. Rehman

THE ease with which matters regarding the fixation of terms of the appointment of the defence services’ chiefs, their reappointment, and the retirement or extension of their tenures have been settled, and all this without much debate, must have surprised even those who know everything about Pakistan’s politics.

The government’s bill on the subject drew two responses. A less-noticed point of view was offered by the Pakistan Bar Council and some civil society organisations. They argued that reappointment of the service chiefs or extension of their tenures was not in the interest of their respective institutions. They took into account the impact of proposed steps on the careers of officers in the line of command. These officers were going to become ineligible for promotion to the top slot without a fair assessment of their talent and capacity for leadership. That these officers could not deal with emergencies caused by external aggression or internal disorder was an untested supposition.

Even otherwise, one could have added that Pakistan’s defence services have been moving away from the concept of total reliance on their chiefs. The change in the designation of these heads of services from commander-in-chief to chief of staff was not without significance. Regardless of his motives, Gen Ziaul Haq’s innovation deserves notice. He transformed the chief of army staff into a commander of the force in council (comprising the corps commanders). The present chief of army staff has strengthened the scheme of collective leadership by increasing the frequency of corps commanders’ meetings. That collective leadership of services is better than putting the entire burden on the chief cannot be denied.

However, the idea of moving away from reappointment of service chiefs or extending their tenures perhaps came before its time. It had little chance of being examined in a situation when, as declared by the Punjab Assembly Speaker, Chaudhry Pervaiz Elahi, the whole nation is standing behind the army. Yet, the dismissal of the suggestion to give due weight to institutional interest cannot be overly regretted.

The Supreme Court did not touch on the justification or otherwise for extending a service chief’s tenure

Unfortunately, the Supreme Court did not touch on the justification or otherwise for extending a service chief’s tenure. Perhaps it was not supposed to do that. It only dealt with the absence in law of the terms of appointment of a service chief and wanted parliament to make legal the provisions for his reappointment or extension of his tenure, if and when this was done.

The second response, which may be described as pragmatic, left some points unresolved. In its first phase, the major political parties rushed to support the move to provide for reappointment/extension in the terms of all three chiefs of defence services. While the religio-political parties (the JUI-F and Jamaat-i-Islami) continued to oppose the three bills, the major political parties, the PTI, the PML-N and PPP apparently jostled to find a place on the army’s page. Were they driven by fear of reprisals?

The ruling party was visibly overjoyed at the display of opposition support. The National Assembly speaker finally issued orders for the production of the jailed MNAs so that they could vote in favour of the official bills. A week ago, the TV channels were running a statement by the PTI National Assembly chief whip to the effect that the relevant bills would be introduced in the National Assembly the next day before Friday prayers and adopted forthwith. The bills would then be presented in the Senate after Friday prayers and adopted forthwith. Fortunately, he was proved wrong because the PML-N and PPP insisted on the adoption of the prescribed procedure.

The bill to amend the Army Act (with identical amendments proposed to the Navy and Air Force Acts) had suggested the following:

— The COAS and chairman, joint chiefs of staff committee (CJCSC) will be appointed by the president under Article 243 of the Constitution on the recommendation of the prime minister, and both of them for three years.

— The COAS could be reappointed for an additional term of three years. His tenure may be extended for up to three years in the national security interest or exigencies, from time to time.

— Regardless of the term fixed for the COAS at appointment, reappointment or extension of tenure his age of superannuation will be 64. (Official sources seem to be interpreting the provision differently.)

— The terms for the reappointment/extension in the tenure of the CJCSC would be identical with the terms allowed to the COAS.

— The appointments of service chiefs, their reappointment or extension in their tenures cannot be challenged in any court.

The PPP reportedly moved three amendments to the bill to amend the Army Act:

i) The prime minister must explain the grounds for extending the tenure of the COAS before the parliamentary committee on national security.

ii) While the prime minister could recommend an extension of the tenure of the COAS his reappointment is not possible; and

iii) The provision that the orders in discussion cannot be challenged before any court may be dropped. (This provision might not prevent the courts from exercising their inherent powers of judicial review.)

All of these amendments were withdrawn when the bill came up before the National Assembly and the passage of the bills through the Senate was a mere formality. As pointed out earlier, lack of debate left a few points unclear. The clumsily constructed retirement clause could cause confusion. The reappointment for an additional term could become the norm. While some grounds are mentioned for extension of tenure, no grounds seem to have been offered for reappointment. There is no mention of how many times one can be reappointed. Had the public at large been encouraged to debate the bills it might have helped in making the text clearer.

Tailpiece: A TV channel reported a suggestion by a citizen to the effect that all the three major political parties should be merged into a single party. Full marks for perceptiveness.

Published in Dawn, January 9th, 2020