Govt decision of COAS extension ‘outcome of flawed decision making’

KARACHI: The Supreme Court on Tuesday highlighted the several legal and procedural lacunae in the federal government’s decision of granting extension to COAS Gen Qamar Javed Bajwa, indicating a flawed decision making process. The hearing provides an opportunity to set standards setting aside notions that the decision is taken to meet political objectives.

The host of programme Aaj Shahzeb Khanzada Key Saath on Tuesday said in his viewpoint the Supreme Court’s proceedings into the extension of the COAS Gen Qamar Javed Bajwa has become a complicated puzzle. He said the apex court raised strong legal questions which were addressed by the federal government and it remains to be seen if they are accepted. The notification of the COAS's extension was erroneously issued on August 19 by the prime minister, but later it was withdrawn and sent to the president who signed it on the same day. However, as it later transpired that the federal cabinet’s endorsement was imperative and not that of the prime minister alone. Another problem, as the Supreme Court pointed out, emerged when it was found that some members of the cabinet abstained from the decision. Special Adviser on Accountability Shahzad Akbar while briefing the media said that later five more members of the cabinet later signed their assent to the decision, making 19 out of 25 cabinet members who backed the decision.

The Supreme Court noted that while the government got the summary approved from the cabinet but neither the president nor the prime minister signed that document. In its order, the court pointed out a lacunae in the Armed Forces Services Rule, which does not allow for any extension in the service of the army chief. Following the order, the cabinet met in an emergency huddle amending Clause 255 of the Pakistan Defence Services Rules, by adding the word “extension” in it. The anchor said the apex court had also raised the objection to the “vague wording” of national security requirements cited as justification for granting extension to the army chief. Khanzada referred to media briefing by Federal Minister Shafqat Mahmood who explained the national security reasons for the government’s decision. Barrister Farogh Nasim would represent the army chief in "Wednesday’s hearing, after he tendered his resignation as law minister to defend the COAS in the case. Interestingly, on Nov 21 when the CJCSC was nominated, the federal government announced that notification of the army chief’s extension was already issued on Aug 19, whereas on the contrary the cabinet had approved the extension on Aug21. Alongside the federal government, the president also switched his position over the issue. On Sept 12, President Arif Alvi in an interview with the host of Aaj TV current affairs programme Asma Shirazi had said that he would issue the notification of COAS's extension the moment he receives the prime minister’s advice. This is another glaring contradiction as according to the federal government’s account the notification was issued on Aug 19. The president in another interview to Dawn TV’s anchor Mehr Bukhari on Nov 13 had said he had signed the summary as soon as he had received it.

Shahzeb Khanzada said the petitioner challenging the army chief’s extension withdrew his plea from the Supreme Court in a handwritten application without appearing before the apex court bench. This prompted the CJP to convert it into a suo motu case. The anchor said today the Islamabad High Court heard the petition of Musharraf’s counsel Salman Safdar and the Interior Ministry’s petitions against reserving judgment in Musharraf’s treason trial by the special court. But in surprise turn of events, the government’s law officer representing the interior ministry Addl Attorney General Tariq Khokar did not appear for the trial. When Musharraf’s counsel Salman Safdar tried to advance arguments in the case, the Islamabad High Court stopped him from doing so, prompting him to raise objection saying the defense counsel is not being allowed to plead his case. Chief Justice Athar Minallah remarked this does not your subvert your right as we cannot hear you as the aggrieved party. Fair trial is the right of every accused but the former president has forfeited his right by absconding from the court, the chief justice said.

Talking to Shahzeb Khanzada, the Federal Minister for Science and Technology, Fawad Chaudhry said the Tuesday's cabinet meeting has removed the lacunae pointed out by the Supreme Court and withdrew the previous summary. The minister said the court had asked why the word "extension” was not used in the federal government's notification. He said both generals Pervez Musharraf and Ashfaq Pervez Kayani were given extensions under the previous law. However, now the cabinet has amended Section 255 of the law by adding under instructions of the court. He said this will settle the legal and constitutional issues raised by the apex court. Fawad told the programme the cabinet is justified in its decision in the light of the emergency conditions at the border and other national security conditions. The prime minister and cabinet’s decision about the extension is an “executive decision”. He said when the president, prime minister and the cabinet consider their decision vital in national interest, the government decision should be backed. The minister said the government will plead its case before the Supreme Court bench. Citing the Supreme Court’s judgment in the Mustafa Impex case which settled the issue of majority cabinet decision as mandatory, Fawad said before this verdict the prime minister used to take the decisions alone.

Taking part in the programme, noted lawyer Salman Akram Raja said the Supreme Court raised the question as to why was the extension given to which the federal government responded that the decision was taken in the light of regional security dynamics. Raja said the Supreme Court considered the federal government’s response as vague and it remains to be seen how the government addresses this concern of the apex court. The government may argue that the court can only 'lightly scrutinize' the executive decisions taken in light of the national security issues. He said the Supreme Court might with its verdict set certain standards to settle the perception that these decisions are made to achieve certain political objectives. He said the government could not distinguish between reappointment or extension of the army chief’s tenure in its pleading of the case today and it remains to be seen that on Wednesday if the government could satisfy the court on that account.

Taking part in the programme, noted lawyer Salman Akram Raja said the Supreme Court raised the question as to why was the extension given to which the federal government responded that the decision was taken in the light of regional security dynamics. Raja said the Supreme Court considered the federal government’s response as vague and it remains to be seen how the government addresses this concern of the apex court. The government may argue that the court can only 'lightly scrutinize' the executive decisions taken in light of the national security issues. He said the Supreme Court might with its verdict set certain standards to settle the perception that these decisions are made to achieve certain political objectives. He said the government could not distinguish between reappointment or extension of the army chief’s tenure in its pleading of the case today and it remains to be seen that on Wednesday if the government could satisfy the court on that account.

Lieut Gen (retd) Amjad Shoaib told Khanzada, previously the governments always picked the army chief for their political guarantees. The incumbent COAS has helped the government achieve many of its foreign policy and economic goals in the Middle East, China and the US. Gen Bajwa was never interested in extension while the government on its own went ahead with the decision. The defence analyst said Gen (retd) Kayani was given extension by the government of that time to suit its political convenience. Similarly, Gen (retd) Musharraf was promoted by former prime minister Nawaz Sharif for his objectives.