The SC on the army and ISI chiefs’ removal

CJP is humbly advised to re-trace his missteps on the matter, PM is within constitutional authority to remove chiefs.

On December 28 a man by the name of Fazal Kareem Butt filed a petition in the Supreme Court claiming that the government was about to remove the army chief and the DG ISI and that the Supreme Court should seek guarantees that this should not happen since that would undermine his fundamental rights, under Article 189. The petitioner argued that martial law was triggered in 1999 upon the fear that the then army chief had been sacked and hence a repeat of that would undermine the public good.

In my detailed discussions with the petitioner, I came to know of three important facts. One, that his petition was based on three reports that had appeared in The News, and where a defence analyst had raised the possibility of a mutiny. Apart from these reports there was, he said, no other evidence for his view that the removal of Generals Kayani and Pasha was imminent.

That said, the petitioner insisted that the removal from service on January 11 by the prime minister of the defence secretary, and replacing him with a “pliable” was a prelude to the removal of the two generals. He was reminded, however, that the defence secretary was charged with creating misunderstanding between the army and the executive and therefore this was more of a statement to re-track the prime minister’s earlier uncalled-for statement to a Chinese newspaper where he had said that the filing of affidavits filed by the army and ISI chiefs was an unconstitutional act.

The second point made by the petitioner was that he was a lawyer for the recently-removed defence secretary. And the third was that he had, on and off, appeared before the courts as a lawyer for the Pakistan Army, i.e. when they have needed civilian lawyers

Interestingly, initially the deputy registrar returned the petition with some objections. The petitioner went into appeal and the Chief Justice of Pakistan called him to his chamber, and after that fixed a date for a hearing to determine whether the petition could be admitted. At that hearing, the CJP asked the attorney-general appearing before him if the prime minister was going to fire either General Kayani or Pasha to which the law officer said “no”. The CJP then adjourned the court for two weeks and the attorney-general was told that by then he would be required to submit a written statement by the government.

This particular case of the petition, of the CJP holding a preliminary hearing as a result of an appeal, the observations that he made, the questions he asked of the attorney-general, and finally the demand he made all raise major questions regarding due process and rule of law.

First, the petition was entirely based conjecture, with no concrete evidence provided by the petitioner. Two, Mr Butt has been a lawyer for the Pakistan army and is now a lawyer for the defence secretary who was recently removed and hence there is a clear possibility of a conflict of interest. Three, and above all, should not the appeal that the CJP heard in his chamber been one that should have been heard in the open, so that all sides could be heard.

The prime minister is within his constitutional authority to remove the two chiefs, and therefore under what law would the Chief Justice of Pakistan interfere in the prime minister’s authority and ask for a no-removal guarantee by the latter? Giving such a guarantee would clearly restrict the constitutional powers given to the elected prime minister. Was the CJP overstepping his constitutional mandate? The CJP can re-interpret or use his own discretion, but not without undermining the Constitution.

Such an action by the CJP could set a dangerous precedent and could undermine the recent thawing of government-army tensions. The Chief Justice of Pakistan is humbly advised to re-trace his missteps on this matter. Meanwhile, the government would be ill-advised to give in writing that it will not remove the army and the ISI chiefs.

Published in The Express Tribune, January 25^th, 2012.