Shambolic Governance And The Doctrine Of Necessity

After three days of intense drama, the Supreme Court of Pakistan conditionally allowed the incumbent Army Chief to continue in his office for six months. The court has directed the government to take the matter to the Parliament to effect proper legislation on the terms and conditions of service of the COAS and to clarify the scope of Article 243 of the Constitution that deals with the command of armed forces.

From the time the Chief Justice of Pakistan took up the plea of a habitual petitioner regarding the validity of the extension in the service of Gen. Qamar Javed Bajwa to its conditional approval, the country remained in the grip of uncertainty thereby exposing the faultlines that continue to define Pakistan’s governance.

First, the ineptitude of Imran Khan led government was laid bare when the legal and administrative process adopted while extending Gen Bajwa’s tenure was presented before the court. Simple procedures had been bypassed and it was nothing short of a botch up. The adhocism at display should worry the PM. It is clear that his choice of ministers and bureaucrats is flawed and the manner in which he has been approving important appointments is further undermining the already diminished image of his government. Why was PM’s legal team so clueless; and even his trusted President wasn’t aware of a decision taken by the PM office especially when the former’s assent – even if tokenistic – is a requirement?

Second, the barrage of media commentary on the issue of Army Chief’s appointment showed how the tamed media found 72 hours of relative freedom to raise questions which otherwise evade TV debates. Military rulers have been according extensions to their rule and civilian governments have done that in the past too. In 2010, the PPP government extended Gen. Kiyani’s term and the process was hardly debated or questioned. If the current ‘civilian’ dispensation was created to protect the institutional interests of the Army then certainly the government’s incompetence is having the opposite effect.

Third, the unprecedented discussion of the need and scope of extending the tenure of army chief was also a first. In the past, other than a handful commentaries in English language newspapers military appointments were rarely unpacked in the mainstream. Even fair comment was termed as a threat to national security. There are multiple views on the prospect of continuity of an army chief. Sometimes there are convincing grounds or de facto compulsions but there was no public debate. Thanks to Imran Khan and his team, an accidental debate has ensued that will continue in the months to come.

The opposition – well represented in the Parliament – had not much to say during as the crisis unfolded. Careful not to ruffle the khaki feathers, the opposition parties quietly enjoyed the high drama in the Supreme Court but did not take a position. In an ideal world, a parliamentary committee should have been the appropriate forum to raise the questions that Supreme Court asked. Both PMLN and PPP have been in backdoor parleys of late and perhaps they considered it risky for their own leaders to have a clear-cut position. The paralysis or absence of parliament in the scheme of governance is alarming and does not bode well for the future of democratisation.

Fifth, the limits of judicial power were tested, once again. The Supreme Court in its own words exercised judicial restraint. The question before it was clear: whether an executive decision was valid or not. After digging into the question and taking the government to task, it passed the buck to the parliament. Fair enough.

But this is the same court that ousted two prime ministers and did not grant them even the right to appeal. The courts have consistently accepted where the real power rests. Without naming it as such, the bench invoked doctrine of necessity in letting a legally tenuous appointment continue until it gets a legal cover. The infamous doctrine lives on.

If the issue of national security was that important then court’s admission of the petition should be questioned. Two days before the army chief’s second term was meant to begin, it chose to take up an application and create uncertainty. Its verdict will have the same effect. What happens in the next six months? The incumbent and his commanders are bound to look towards the parliament for clarity; and given the history of the country may even enter into negotiation with the opposition directly as their favoured dispensation has been unable to do so. Noting that Pakistan is playing a major role in the Afghan peace talks, faces a belligerent Modi led BJP, how does it all serve the national interest? Some commentators think that the court’s intervention will boost civilian supremacy. Such conclusions are too early to draw.

Lastly, Imran Khan’s speech after the verdict is hardly an invitation to the opposition he needs to work with in sorting out the mess created by his legal team. His first act – not unexpected – of deflection was to attack the ‘mafia’ (his favourite word for the opposition parties) in the country and enemies abroad for hoping to benefit from the crisis. Other than his blind supporters and even some are astounded by the incompetence of his team, no one buys that.

However, one has to agree on the term mafia. Yes there is a mafia of notorious electables, opportunist technocrats, billionaires, self-styled wizards who have taken over the control of his party and the government and have made a mockery of terms such as ‘governance’, ‘tabdeeli’ and ‘Naya Pakistan’. This ‘mafia’ has no ideology or programme other than seeking power for its individual or group interest and will move to the next pasture when required by its backers.

While the immediate issue of army chief’s extension may have been resolved, political uncertainty will continue with serious implications for the economy. There is no imminent sign of a political change in Islamabad. Imran Khan is in a bargaining position for at least six months. However, if the PTI government continues to fumble, the establishment will not go an extra mile to save it.

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