The Appointment Affair – Precedents and Procedure

In Blog, National Security
November 5, 2021
Abdul Aziz
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The issue around the appointment of Director General, Inter-Services Intelligence (DG ISI) has bought back an important but often overlooked question within the Pakistani political and legal sphere, “what is the procedure?”. The procedure to appoint DG ISI while not explicitly stated under any law is done through the practice of following previous precedents. In

The issue around the appointment of Director General, Inter-Services Intelligence (DG ISI) has bought back an important but often overlooked question within the Pakistani political and legal sphere, “what is the procedure?”. The procedure to appoint DG ISI while not explicitly stated under any law is done through the practice of following previous precedents. In certain Western democracies like the United Kingdom, such practices of following political precedence are the norm, however, in a country like Pakistan, where state institutions have historically shared power, no explicit laws regarding the procedure can create room for misinformation and speculation about institutional discord.

The Pakistani military on 6^th October issued a notification through Inter-Services Public Relations (ISPR) to appoint Lt General Nadeem Anjum for the post of DG ISI. However, after a delay in notifying this change from Prime Minister’s office, it started a chain of and whisper about confusion with regards to the procedure of appointing the new DG ISI. The Government of Pakistan later confirmed that the political practice is that three recommendations for the post are sent to the Prime Minister’s Office (PMO) who then issues a notification confirming the appointment of the head of the spy agency.

The government while dispelling rumors about any conflict between civil or military institutions promised to issue a new notification shortly. However, it took the Pakistan Government another three weeks to issue an official notification from the PMO which allowed time for whispers about a possible deadlock between Pakistan’s major state institutions to spread through. These rumors have a detrimental effect on Pakistan’s security and civil-military relations as they can set in a wave of disinformation.

Pakistan is not entirely unfamiliar with such issues of procedure either. In 2019, Pakistan had a similar legal confusion regarding the extension of the current Chief of Army Staff (COAS) General Qamar Javed Bajwa. The issue arose when the Supreme Court of Pakistan took a suo moto notice under article 184 (3) from Constitution Petition No. 39 of 2019 about the extension of the COAS starting chain of speculation and confusion about institutional conflict.

At the start of the proceedings, the government referred to Article 243 of the Constitution as the law that grants them the power under the constitution to extend the term of the COAS. However, the Supreme Court clarified that Article 43 at no point mentions a clear duration of any kind of extension. While, there were references made to the Pakistan Army Act, specifically regulation 55, however, the Court stated that none of those stated laws directly address the issue of extension.

The Attorney General of Pakistan later admitted that there were no specific provisions either in the constitution or the Pakistan Army Act which explicitly allowed to extension. The Court held that while some provisions relating to appointments and reappointments existed there was none that specifically and clearly stated how an extension to a sitting COAS may be made. Following which, the Supreme Court directed the government to pass new legislation that directly addresses the issue of extensions as the legislature is the most appropriate forum to clear any uncertainty within the law.

The parliament of Pakistan then passed the Pakistan Army (Amended) Act 2020 that clearly stated the procedure for the extension of the COAS as well as resolved this procedural crisis. It is important here to mention that Pakistan has a written constitution unlike some places in the world like the United Kingdom or New Zealand. In a country like Pakistan where there is a written constitution, all matters regarding state governance need to be clearly stated in a single document.

Usually, a constitution gives legitimacy to all laws or acts of public governance and the constitution itself gets its legitimacy from the ground norm. Grund norm is an all-encompassing concept in legal philosophy introduced by a German jurist named Kelson to complete the chain of legitimacy of public acts of governance. Any act that has to do with any public good is usually traceable back to the constitution and the grund norm. If a law is not traceable back to the constitution which reaffirms its validity, its legality is questioned.

The issue of appointment and re-appointments while in theory can be based on legal precedence but in an unwritten constitutional democracy like Pakistan with its complex history of civil military relations, it is imperative to have clear written laws and procedures tracing back to the grund norm. The question of appointment is a decision of public administration and governance and if it is not clearly stated under any law it can fail the test of legitimacy when the need arises.

The political climate in Pakistan due to its complex history of power-sharing between the military and the civilian government is different than certain old western democracies that rely on political precedents. These legal questions can at times turn into questions of political instability and a rift in civil military relations. The not so-clear administrative rules can become an achilles heel for any institution’s command and strength. Perhaps, it is not wise to wait for another such question to arise at a crucial time. A thorough review is needed to see where these anomalies exist in these rules lest another important appointment is challenged or puts the entire system in turmoil. It is imperative that Pakistan legislates and clearly regulates the appointment of important public offices, to ensure that no such confusion regarding the procedure or its validity is ever caused again in the future.