Pakistan passing through another crucial November

ISLAMABAD: The acceptance of an application by the Islamabad High Court, seeking early hearing of a petition relating to the extension given to Army Chief General Ashfaq Parvez Kayani in 2012, has created a similar situation that an embattled General Pervez Musharraf had to face in November, 2007, prompting him to invoke a state of emergency.
The apex court was about to decide whether or not he was eligible to contest the 2007 presidential election in military uniform, although he had already been elected for a second five-year term in October the same year. Amidst strong speculations that the Supreme Court was about to hand down an adverse judgment on his re-election by disqualifying him as the president, Musharraf, who was also COAS at that time, carried out a ‘pre-emptive strike’ on November 3, 2007, and invoked a state of emergency in the country under Article 232(7) of the 1973 Constitution besides issuing a Provisional Constitutional Order (PCO) under which the judges of the superior courts were asked to take a fresh oath of allegiance to the General. All and sundry, Musharraf was sure that the 11-member larger bench headed by Justice Javed Iqbal was all set to nullify his October 6, 2007, re-election.

The extreme step followed a nerve-shattering logjam between the apex court and the president, starting on March 9, 2007, when Musharraf filed a reference against Chief Justice Iftikhar Muhammad Chaudhry. The president felt beleaguered and cornered by successive decisions of the Supreme Court and was in no position to undo them. His position was constantly on the decline, especially following the July 20, 2007, reinstatement of Chief Justice Iftikhar Chaudhry by a majority judgment (10 to 3). Musharraf had suspended the top judge on March 9, 2007, and sent a reference to the Supreme Judicial Council to proceed against him on charges of misconduct in a bid to ensure his smooth re-election as the president.

Musharraf’s promulgation of emergency was widely described as a coup against the Supreme Court, as it was aimed at purging the superior judiciary of judges whom the regime considered defiant. The proclamation order issued by General Musharraf justified his action on the grounds that hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated by the intelligence agencies, were being released by the judiciary, therefore, encouraging terrorists and subduing the law enforcement agencies.

There are those in the Pakistani military establishment who strongly believe that the November 13 acceptance of an application by Islamabad High Court, seeking an early disposal of a petition relating to General Kayani’s extension, has created a similar situation for the COAS which had prompted his predecessor to take an extreme step in November 2007. A division bench of the IHC comprising Justice Mohammad Anwar Khan Kasi and Justice Shaukat Aziz Siddiqui has put off the hearing of the extension in service case against General Ashfaq Kayani till the third week of November.

The petition was filed under Article 184 (3) of the Constitution by Colonel (retd) Inamur Rahim, the convener of Ex-Servicemen Society, who had earlier served the Judge Advocate General (JAG) Branch of Pakistan Army. The petition, which is in fact an intra-court appeal against the extension, was filed after IHC Chief Justice Iqbal Hameedur Rehman dismissed the colonel’s petition on September 24, 2012, stating that the high courts could not hear cases relating to the service matters of armed forces personnel. The colonel says he has completed a legal requirement by filing the intra-court appeal because the earlier order on his appeal was passed by a single judge which could only be set aside by a division bench of IHC.

Colonel Inam says he has already made up his mind to approach the Supreme Court chief justice if the Islamabad High Court again rejects his intra-court appeal. “I am quite hopeful of getting justice from the Supreme Court”, says an inflexible colonel who is also the defence counsel of Brig Ali Khan, already convicted and sentenced after court martial proceedings for his jehadi links and for attempting to overthrow the government with the help of the Hizbut Tehrir. Challenging the extension, Colonel Inam has made the Federation a respondent, contending that after reaching the age of 60, General Kayani had become an alien to the Army because under the Pakistan Army Act (PAA) 1952, he could not continue in the service after crossing the age of superannuation.

The petitioner has maintained that the Supreme Court had observed on several occasions that extensions and re-employment of employees in the government services deprived many other officials who deserve to be appointed to the posts of their right. “Even otherwise, dozens of serving lieutenant generals would retire without being considered to become a general because of the unjust extension granted to General Kayani which is a clear violation of Article 9 of the Constitution and tantamount to depriving the senior Army officers of their fundamental right because their promotion had been blocked”, the petitioner has further contended.

Questioning the extension granted to Kayani by President Zardari, the petitioner has pleaded that under the provisions of Article 243, the president has only two powers relating to armed forces - appointing army chief and determining his salaries and allowances on advice of the prime minister. “Under the Pakistan Army Act and the Constitution of Pakistan, the president has no authority whatsoever to grant extension to chief of army staff. This illegal, immoral and unconstitutional extension was in fact granted to General Kayani as a result of the NRO, which was already stuck down by the Supreme Court of Pakistan. The whole exercise of extension was malafide corum-non-judice and without jurisdiction and as such, the superior courts are obliged to interfere as held in the Chief Justice of Pakistan Vs the President of Pakistan 2007. (PLD2010 page 61)”, Colonel Inam has stated in his petition.

Approached for comments, a military official in Rawalpindi, expressed the hope while requesting anonymity that the IHC division bench would uphold the decision taken by the single bench and dismiss Col Inamur Rahim’s petition. He argued that the high courts could not hear cases relating to the service of armed forces personnel under Article 199 of the 1973 Constitution, which primarily deals with the jurisdiction of the high courts. The official also questioned the timing of the petition. “General Kayani was granted extension on July 22, 2010, while Colonel Rahim waited for nearly two years to challenge the decision in September 2012. Remember, the petitioner is also the defence lawyer of Brigadier Ali Khan, who has already been convicted.

On the other hand, Colonel Inam insists that his petition against Kayani could not be dismissed on the basis of Article 199(3) of the Constitution which says the courts are debarred to deal with the terms and conditions of army persons. “Legally speaking, after 20th April, 2012, on reaching the age of superannuation, General Kayani was no more subject to the Army Act ipso facto. Therefore, the court must interfere in the matter and pass orders for removal of General Kayani, who is illegal occupant of the office of the Chief of Army Staff”, the petitioner has concluded. The application has gained added significance given the fact that it has been accepted for hearing hardly a week after the chief of army staff and the chief justice had made some hard-hitting statements.

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