Syed Qamar Afzal Rizvi
THE national security state emerges from war, from fear of revolution and change, from the economic instability of capitalism, and from nuclear weapons and military technology.’ It has been the actualizing mechanism of ruling elites to implement their imperial schemes and misplaced ideals. In the given geostrategic culture where Pakistan is not yet out of woods of the mounting threats posed from both proxy or conventional war with India, its national security justifiably dominates the domestic discourse including the newly posed challenge of fulfilling the paradigm of national legality vis-à-vis the army chief service tenure. The latest and detailed judgment issued by the Supreme Court of Pakistan (December 16) with regard to the issue of extension/reappointment of the COAS Gen Qamar Javed Bajwa has academically opened the debate of fixing the issue of the ongoing controversy. Under the approach propelled by the notion of national security, we, as an epic nation must unanimously take a stand on it.
Objectively, because of the complexities that are entailed by our National Security Perspective, we cannot exclude the significance of our national security from the ongoing debate— pondering the imperatives of national security doctrine with regard to the Army Chief Service Tenure— weaving together constitutional law, military law and the law of war, and regional security culture etc. While addressing our legal challenges and obligation in terms of concluding the ongoing debate via parliamentary legislation, we should act sanely to avoid institutional disarray and cold war. Understandably, the doctrine of national security and the due process are interwoven with each other.
Unforgettably, earlier this year both India and Pakistan again came close to all-out conflict, after an Indian narrated propaganda of a militant attack in India-occupied Kashmir in February was claimed by a group based in Pakistan, igniting tit-for-tat airstrikes. It goes without saying that Pakistani military is virtually believed to be playing a vital role in ongoing peace talks between the US and Taliban that aim to secure a withdrawal of American troops in exchange for insurgent promises that Afghanistan will not be used by the centrifugal actors. Critics argue that the extension disrupts regular promotion schedules, strengthens personality politics in the army –thereby jeopardizing democratic revival; while maintaining Pakistani military and intelligence aid to Afghan Taliban groups. And yet the pragmatists urge the notion of the security doctrine as the vital bases for an extension. The current verdict found that “no tenure or age of retirement for the rank of General is provided under the prevailing law. Needless to say, as per the institutional practice a General normally retires on completion of tenure of three years. Although an institutional practice cannot be a valid substitute of the law, the Court discerned. The judgment further fostered the view that in the light of the Attorney General’s assurances as well as the importance of the responsibilities of the army chief, it is appropriate that the serving COAS may continue for a period of six months. In the same vein, the apex court warned that in the absence of legislation on the matter within six months, the institutional practice of retirement of a General on completion of the tenure of three years “shall stand enforced”.
“We would like to emphasise that this crucial matter of the tenure of COAS and its extension, which has a somewhat chequered history, is before Parliament, to fix for all times to come,” wrote Justice Syed Mansoor Ali Shah, a member of the three-judge bench which heard the case, in the court’s 43-page judgment. The pivotal message conveyed by the Court Order reads: ‘’It is now for the people of Pakistan and their chosen representatives in Parliament to come up with a law that will provide certainty and predictability to the post of COAS, remembering that in strengthening institutions, nations prosper.” As per the indoctrination of our national security or the argument solicited by the present Government in its retrospective notification of August 19, 2019 ( albeit cancelled by the Supreme Court of Pakistan) Pakistan’s Army Chief will serve another three years as the country deals with the Afghanistan peace process and tension with India. Pakistan has the world’s sixth-biggest army, which controls the country’s nuclear arsenal. In fulfilling the imperatives of our national interest, we need to strike a balance between the doctrine of national security and the order of constitutionality.
However, there arises a dilemma as to whether parliament would get to legislation that could essentially warrant legal justification for past practice — that is, long, multi-year extensions for army chiefs — or whether it seriously takes this issue. The PTI has a majority in the lower house, but the opposition has control of the senate, and the polarization between Khan and the opposition parties may stall the legislative process; nonetheless, the most probable scenario is that the issue could be amicably resolved by having the conviction that in the interest of national interests, the due process of legislation may positively proceed. Apparently, it seems a valid point that the judiciary has, at least, in this case, assumed the role and the power to force Pakistan’s politicians to rightly and impartially settle the issue pertaining to the COAS service tenure.
This whole debate will certainly figure in the saga of what kind of democracy Pakistan is capable to foster while rebalancing the role of state institutions — whether to the revitalization of institutional harmony— thereby pragmatically espousing the role of Pakistan security establishment. We must not play the game while addressing constitutionality vis-a-vis the tenure of our Army Chief. Needless to say, all the political parties must be convinced of the mounting imperatives of our national security, therefore, they should not hesitate to resolve this issue amicably and academically by making unanimous legislation on this issue. The Supreme Court order must not be read with overriding partiality or polarization. Rather, the Court Order must be read with sane approaches that wisely dictate pragmatism while tackling this legal task.
—The writer, an independent ‘IR’ researcher-cum-analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.
