Brig. Ali’s counsel challenges COAS’ extension

By S. M. Hali

Colonel Inam-ur-Rahim (Retd.), the defence counsel of Brigadier Ali Khan, facing charges of attempting to overthrow the government, has petitioned against the extension granted to the current Army Chief. The Supreme Court was moved on April 14, 2012 against the incumbent Chief of Army Staff (COAS) General Ashfaq Parvez Kayani, stating that the extension in his tenure was in violation of the articles 2A, 4, 9, 14, 20 and 25 of Constitution and various provisions of law. Colonel Inam-ur-Rahim has prayed to the apex court to direct the federation to appoint the senior most general, presently General Khalid Shamim Wyne, on the principle of seniority in the interest of public. According to Inam, General Wyne was appointed as the Chairman Joint Staff Committee (CJSC), despite the fact that he is the senior most after General Kayani. The petitioner filed the petition under Article 184 (3) of the Constitution and made federation through the defence secretary a respondent.

Colonel Inam, who has earlier served in Judge Advocate General (the legal branch of army), prays to the apex court that Pakistan being a nuclear state cannot afford any “overage and defeated chief” to command the armed forces. In his judgment, the extension of COAS is, contrary to the law of the land and tantamount to deprivation of rights of his successors who could in turn be promoted to the position of COAS by the virtue of seniority. He states that under Rule 262 of Army Rules and Regulations 1998, an officer holding a permanent regular commission completing an age/service limits (whichever occurs first), prescribed therein 60 years in case of a general would not be retained on the effective list under the orders of the federal government.

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The petitioner questions whether any provision of law exists under which any authority can award another extension of complete tenure to the army chief or anybody else. He finds it improbable that finding a suitable and able replacement for the current incumbent in the post of Army Chief was nigh impossible. In Colonel Inam’s “informed opinion”, General Ashfaq Parvez Kayani, approaching the age of 60 on 20th of April 2012, the age of superannuation, also prescribed for the civilian government employees, was being “exceptionally treated above law of the land”. He further questioned whether Kayani was not responsible to defend the Salala check-post in an attack, which lasted for three hours wherein 26 precious lives of soldiers were lost. But he failed to respond and abide by the Constitution and oath taken there-under in violation of articles 5, 9 and 14 of the Constitution. Inam also alleged that the incident of Abbotabad, operations in Fata, Wana and Swat where all the drone attacks were carried out with the connivance of General Ashfaq Pervez Kayani and/or it was due to his inefficiency and is in violation of Articles 9, 14 and 5 of the Constitution.

Dragging religious sentiments into the argument, Colonel Inam argued that the act of demolishing the mosques by General Ashfaq Pervez Kayani was an infringement of the right of the people to profess religion as guaranteed by Articles 2-A and 20 of the Constitution. Brigadier Ali’s defence counsel also professed that General Pervez Musharraf and his team collaborated with foreigners to architect the NRO, adding that General Kayani was very much present in Dubai where it was agreed upon and approved. Colonel Inam further conjectures that Kayani emerged as a guarantor of NRO. It was result of that deal Prime Minister Yusuf Raza Gilani and President Asif Ali Zardari gave him illegal and illegitimate extension of three years tenure, so that their interest should be guarded well.

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Colonel Inam is also the legal advisor to Pakistan Ex-Servicemen Society (PESS). His petition gives the impression that the PESS shares his views and had its backing. Colonel Tariq Kamal (Retd.), the spokesman of the PESS, vehemently denied the impression, stating that the petition filed in the apex court had never been discussed in any of the Society’s meetings, let alone approving any such act. The spokesman declared that filing of the petition by PESS legal advisor was a very serious matter that would soon be discussed by the Society’s Working Committee and the PESS President Lieutenant General (Retd.) Faiz Ali Chishti, who would soon convene the working committee meeting.

The question here arises, regarding the timing of the petition. Prime Minister Yousuf Raza Gilani granted the three year extension to General Kayani on 24 July 2010, however, Colonel Inam has waited nearly two years to file his petition. Is it because he is also defending Brigadier Ali, who is alleged to be conspiring against the state and in order to gain sympathy for his client; he is trying to demonize the COAS? Apparently, the case against Brigadier Ali is not going well thus his defence counsel’s desperate antics.

Colonel Inam must be aware that extensions to civilian bureaucrats are also granted on attaining superannuation under extenuating circumstances. General Kayani must have groomed and trained highly professional generals, any of whom would be more than capable to replace him but the consideration in granting him an exceptional extension must have been that one does not change horses mid-stream. The country, nay the region is embroiled in a state of war; the very security and existence of Pakistan is at stake and continuity of command must have been a major contemplation.

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Colonel Inam’s proposal that General Khalid Shamim Wyne be appointed as the new COAS is preposterous. General Wyne is currently the CJCSC, a post, which is senior to the COAS and was created by late Prime Minister Zulfiqar Ali Bhutto in 1976, which turned out to be very crucial as the appointee also holds the responsibility to look after country’s nuclear assets. Surely Colonel Inam must not be a well wisher of General Wyne, if he wants to demote him or give him the kiss of death by propagating his case to replace Kayani. Perhaps the Colonel should concentrate on defending his client more efficiently rather than indulge in sullying the waters.