- Indian courts intervene in military service matters
The intervention of the Supreme Court in the extension of tenure of Chief of Army Staff Gen Qamar Javed Bajwa represents a judicial intervention in an area where it is discouraged, that of military service matters. However, it follows a trend which had started in India, where the high courts have been taking cognisance of perceived injustices of military personnel, and instead of starting at a more junior level, has begun right at the level of COAS.
It is interesting to note that the first move by an elected government on an extension of tenure was made by Prime Minister Muhamad Khan Junejo, which in 1986 that no extension would be granted to the then Chief of Naval Staff, Adm T K Khan. He wanted to end the system introduced by Prime Minister Zulfikar Ali Bhutto, whereby service chiefs were appointed for three years initially, and given a one-year extension. This applied to Gen Tikka Khan, COAS 1972-76, Air Chief Marshal Zulfiqar Ali Khan, Chief of Air Staff 1974-78, and Adm Muhammad Sharif, CNS 1975-79 (and subsequently to Adm K R Niazi, CNS 1979-83). It did not apply to COAS Gen Ziaul Haq, who was up for extension in 1979, when as President he signed an order that he was to hold office ‘until further orders’. CAS ACM Anwar Shamim, first appointed in 1978, received extensions till 1985, when ACM Jamal Ahmed Khan took over. It is worth noting that not only did Zia apply the four-year rule (three plus one) to the post of Chairman Joint Chiefs of Staff Committee, but also to that of Vice-Chief of Army Staff, which he made a four-start slot, with the officer holding it the professional head of the military. Gen Aslam Beg already held four-star rank as VCOAS when General Zia’s death created a vacancy, and he was appointed to the post.
Junejo was the first PM who ended the practice of granting extensions. Extensions were supposed to be a means of control, with an appointee behaving himself for three years in the hope of that extension. This practice was brought to an end. No extensions were granted in succeeding years, to any service chief, until the COAS was also appointed Chairman Joint Chiefs of Staff Committee. Then the PM tried to dismiss the COAS in 1999, with the result that there was a military coup, and Gen Pervez Musharraf gave himself an extension when his own tenure expired.
‘Business’ resumed as usual with the appointment of Gen Ashfaq Parvez Kayani as COAS in 2007. He was given an extension in 2010. He was thus the first COAS to receive an extension from a civilian government since then Gen Ayub Khan’s tenure as Commander-in-Chief Army was extended back in 1955. However, instead of a one-year extension noticeably shorter than his original tenure, he was in effect given a second tenure, as the extension was for three years. His successor, Gen Raheel Sharif, did not get an extension in 2016 when his tenure expired, and General Bajwa was appointed.
With this poor team, it now enters the stage of court-mandated legislation. That provides an opportunity to both government and opposition to posture patriotically. This is particularly so in a scenario where the government will have to make overtures to the opposition. The opposition will also have to be careful not to overplay its hand
This was a quintessential service matter. Was the proper procedure followed or not? India has seen a number of petitions filed by military officers, not merely against a failure to promote, but even against a failure to get the kind of posting that would lead to a promotion. Pakistan was free from such petitions, even though the military is a very legal, even legalistic, organisation.
There is are good reasons for this. The military works against perhaps the strongest human drive, that of survival. Members of the military are expected to put themselves in harm’s way. It also works against perhaps the strongest of taboos, that of taking another human’s life. For both of these functions, it has to convince its members that the orders they receive are legal. Further, they put themselves in harm’s way on the command of their superiors. Therefore, obedience is essential, and one of the cardinal military virtues. That means that abiding by orders is required. If a board does not promote one, one accepts the decision and carries on quietly, not noise the matter in a court, and a civilian court at that.
That is what happened in the Supreme Court, and not just to General Bajwa, but to the Army as a whole. Civilian courts made themselves the arbiters of military legality. It has reversed the position where the Army was the biter of the national destiny, and when it took over, the judiciary validated the takeover (this happened from the time of Ayub onward.
Why is the military so concerned about obtaining validation for what is manifestly an illegal act? It is that streak of legalism, that realisation that if a coup is illegal, unconstitutional, there is nothing to stop all society dissolving into violence. Superiors will not be able to command obedience any longer. There has been something of a transition, for the willingness to kill and to die has been transformed into the ability to carry out coups against those not so willing: civilians, especially politicians.
Of course, that is not the only reason. In Pakistan, the military is also popular. First, its claim to rule is taken more seriously than in the other democracies. Second, it has a constituency of its own, those who believe that it is the only organisation which has retained its coherence (which actually means the set of standards observed by the Raj). It itself prides itself on being the only institution which has not been destroyed by interference by civilians. That is a narrative bought by a lot of civilians; members of the military also accept it.
One area where the Indian military, especially the Army, has to be litigious is in defending individuals, usually officers, against fundamental-rights petitions in Jammu and Kashmir, and in the Northeastern states. In Kashmir as well as the North East, the Indian Army is fighting insurgencies using very unsoldierly tactics, which include detention without charge, torture, humiliation and rape. The Pakistan Army does not currently face such charges, though it might have done in East Pakistan almost 50 years ago.
Another revelation of the entire episode is that the federal government has a poor legal team, one which does not really know, or cannot judge, the mood of the Supreme Court. The government did not really have anything vital at stake in the matter, and would have liked a smoother process than having to issue repeated notifications.
With this poor team, it now enters the stage of court-mandated legislation. That provides an opportunity to both government and opposition to posture patriotically. This is particularly so in a scenario where the government will have to make overtures to the opposition. The opposition will also have to be careful not to overplay its hand.