Legal challenges
Govt's legal team needs to work overtime to extricate govt from the tight legal corner it is finding itself currently
The Constitution of the Islamic Republic of Pakistan. PHOTO: FILE
Attorney General for Pakistan Mansoor Ali Khan and Federal Law Minister Faroogh Nasim have their work cut out for them. Indeed, the two would have to work overtime to extricate the government from the tight legal corner it is finding itself currently.
Let us take the Musharraf case first. It was first agitated in 2009 in front of a 17-member bench of the Supreme Court. The PML-N government joined the legal chase in 2014. Mansoor and Faroogh were part of Musharraf’s defence team. The PML-N prosecution team was led by Advocate Akram Sheikh.
After August 2018, Sheikh withdrew from the case pleading a conflict of interest and Mansoor and Faroogh withdrew from Musharraf’s defence team as the two had by then joined their respective offices in the PTI-led coalition government.
Still, as the government’s top law officers and because of their earlier association with the case they were expected to keep their interest alive in it and monitor its progress closely. But it seems more pressing demands on their working hours kept them cut off from the case and as a result, they were taken by complete surprise on December 17, 2019, when the three-member bench of the special court headed by Justice Waqar Seth announced the guilty verdict against Musharraf, and two days later dealt a double whammy with paragraph 66 in the detailed judgment.
The two need to answer for what appears on the face of it to be their gross negligence. In fact, having defended Musharraf during the PML-N phase they should have known in what direction the case was proceeding and moved quickly to withdraw it instead of letting it continue.
One is not sure if by sending a reference against Justice Waqar Seth to the Supreme Judicial Council (SJC), as announced by the Law Minister on Thursday at a press conference, calling in question the Justice’s state of mind and competence, would let the top two law officers off the hook. In fact, if one were to go by the current mood of the superior judiciary and the impeccable performance record of Justice Seth as the Chief Justice of Peshawar High Court, especially his rulings declaring secret internment cells maintained by the security agencies as illegal and overturning 74 death and life sentences passed by military courts, even the SJC is hardly likely to entertain a reference against him. The SJC perhaps would let him go back to his court after the very first hearing. But proceedings of the reference would once again create an unsavoury situation for the government which it would find politically too hot to handle.
The other case which is posing a serious challenge to the government concerns the question of the extension of General Qamar Javed Bajwa, the Chief of Army Staff (COAS). The government has to come up with the needed laws that would govern matters concerning appointment, tenure and extension rules, retirement age and even perhaps remuneration of the COAS, by May 2020. In case the government does not pass such a law by then, the current COAS would stand retired and a new one would be appointed.
The question whether the needed laws could be passed with a simple majority or would a constitutional amendment need to be passed requiring a two-thirds majority is still being debated. And even if it could be done with a simple majority it would get stuck in the upper house for obvious reasons. That is perhaps why one is witnessing most high-profile opposition politicians in NAB’s custody being bailed out in too much of a hurry. Perhaps behind the scenes negotiations are going on between the government and the opposition to strike a package deal. Political trade-offs of sorts, it appears, is in the offing. The package deal could include the appointment of the Chief Election Commissioner and the Commission’s two provincial members. And for the same reason at the forthcoming meeting of the Council of Common Interest on December 23, the federal government is expected to be reasonably accommodative to the provinces’ demands.
Published in The Express Tribune, December 21st, 2019.
Let us take the Musharraf case first. It was first agitated in 2009 in front of a 17-member bench of the Supreme Court. The PML-N government joined the legal chase in 2014. Mansoor and Faroogh were part of Musharraf’s defence team. The PML-N prosecution team was led by Advocate Akram Sheikh.
After August 2018, Sheikh withdrew from the case pleading a conflict of interest and Mansoor and Faroogh withdrew from Musharraf’s defence team as the two had by then joined their respective offices in the PTI-led coalition government.
Still, as the government’s top law officers and because of their earlier association with the case they were expected to keep their interest alive in it and monitor its progress closely. But it seems more pressing demands on their working hours kept them cut off from the case and as a result, they were taken by complete surprise on December 17, 2019, when the three-member bench of the special court headed by Justice Waqar Seth announced the guilty verdict against Musharraf, and two days later dealt a double whammy with paragraph 66 in the detailed judgment.
The two need to answer for what appears on the face of it to be their gross negligence. In fact, having defended Musharraf during the PML-N phase they should have known in what direction the case was proceeding and moved quickly to withdraw it instead of letting it continue.
One is not sure if by sending a reference against Justice Waqar Seth to the Supreme Judicial Council (SJC), as announced by the Law Minister on Thursday at a press conference, calling in question the Justice’s state of mind and competence, would let the top two law officers off the hook. In fact, if one were to go by the current mood of the superior judiciary and the impeccable performance record of Justice Seth as the Chief Justice of Peshawar High Court, especially his rulings declaring secret internment cells maintained by the security agencies as illegal and overturning 74 death and life sentences passed by military courts, even the SJC is hardly likely to entertain a reference against him. The SJC perhaps would let him go back to his court after the very first hearing. But proceedings of the reference would once again create an unsavoury situation for the government which it would find politically too hot to handle.
The other case which is posing a serious challenge to the government concerns the question of the extension of General Qamar Javed Bajwa, the Chief of Army Staff (COAS). The government has to come up with the needed laws that would govern matters concerning appointment, tenure and extension rules, retirement age and even perhaps remuneration of the COAS, by May 2020. In case the government does not pass such a law by then, the current COAS would stand retired and a new one would be appointed.
The question whether the needed laws could be passed with a simple majority or would a constitutional amendment need to be passed requiring a two-thirds majority is still being debated. And even if it could be done with a simple majority it would get stuck in the upper house for obvious reasons. That is perhaps why one is witnessing most high-profile opposition politicians in NAB’s custody being bailed out in too much of a hurry. Perhaps behind the scenes negotiations are going on between the government and the opposition to strike a package deal. Political trade-offs of sorts, it appears, is in the offing. The package deal could include the appointment of the Chief Election Commissioner and the Commission’s two provincial members. And for the same reason at the forthcoming meeting of the Council of Common Interest on December 23, the federal government is expected to be reasonably accommodative to the provinces’ demands.
Published in The Express Tribune, December 21st, 2019.