The Friday Times: Najam Sethi’s Editorial
The Supreme Court has finally put paid to the petition filed by Air Marshal (retd) Asghar Khan sixteen years ago accusing then President Ghulam Ishaq Khan, then DGISI Gen Asad Durrani and then COAS Gen Mirza Aslam Beg, of stealing the 1990 general elections from the PPP by generous cash handouts to a string of pro-establishment politicians. In so doing, the court has silenced cynics who said it wouldn’t have the guts to censure the top brass of the army.
However, there are four dimensions of the SC’s judgment that need to be deconstructed. First, the SC has held that President Ishaq, Gen Durrani and Gen Beg acted illegally and unconstitutionally and must be prosecuted. But it didn’t lay down the law under which such prosecution should take place. This has put the PPP government in a bind. The military doesn’t take kindly to any kind of prosecution of soldiers by civilians. The Pakistan Army Act 1952 remains a vigilant guardian of the military’s domain whereby even the highest civilian courts of the country cannot challenge the writ of the military. Indeed, in the recent NLC case involving three senior retired army officers charged with financial wrong-doing, the government meekly allowed the GHQ to enroll the retired army officers back into service – an unprecedented and legally dubious act – so that they could be proceeded against by their own institution in-camera, fueling speculation that they would either be acquitted or let off lightly. So we may expect the same thing to happen in the case of Gen Beg and Gen Durrani. In other words, the SC has got kudos for roping in two errant generals while the PPP government will get brickbats for letting them off the hook.
Second, the SC noted the presence of a “political cell” in the ISI tasked with manipulating politics and held this to be illegal and unconstitutional. A statement by the defense secretary, a retired general, claims that no such political cell has been operating in the ISI for the last five years, an admission that it was operational before then. The SC has let this pass unremarked. This is significant because it is common knowledge that the ISI has been meddling in recent politics, even destabilizing an elected government and provoking the recently ousted prime minister, Yousaf Raza Gillani, to publicly accuse it of being “a state within the state”. Indeed, this was a great opportunity for the SC to drag out the ISI from the deliberately created grey area in which it operates and make it subservient to civilian elected prime ministers for good by defining the parameters of its power, appointments and operations. But this opportunity was allowed to slip away.
Third, the SC has accepted the confession made by Gen Durrani that he dished out funds to a few dozen politicians to undermine Benazir Bhutto’s bid to capture power in 1990. But the court has not determined whether or not the politicians named by Gen Durrani actually accepted the funds and were also guilty of rigging the election. This is remarkable for its inconsistency. The SC accepts one part of Gen Durrani’s statement incriminating Gen Beg and himself but not the other part incriminating the politicians. So the politicians are off the hook. The matter has become doubly controversial by the court’s decision to specifically task the FIA to investigate the matter of the politicians identified by Gen Durrani. This is the same FIA that has been ordered off the misdemenour case of Arsalan Chaudry, the son of the Chief Justice of Pakistan, by the SC because of lack of credibility and neutrality!
Fourth, the SC has argued that the office of the President, past and present, is expected to be politically neutral and any violation of this rule is unconstitutional. But Mr Ishaq Khan is not likely to turn in his grave on account of it. Instead, it is President Asif Zardari who is fated to bear its brunt. Mr Zardari is both president and co-chair of the PPP. In the forthcoming elections, he intends to canvass aggressively for the PPP. Therefore he will face the prospect of disqualification at the hands of the court. Damned if he does and damned if he doesn’t. If Mr Zardari resigns as PPP co-chair, he will leave the party rudderless and it will be wiped out at the polls. If he quits as president, he will lose his presidential immunity and be targeted for corruption in cases lodged over a decade ago.
The court’s judgment has been hailed as brave and extraordinary. In all probability, however, Gen Beg, Gen Durrani and the politicians who connived with them to steal an election in 1990 will quietly fade away without any upheaval. It is Mr Zardari who will have to fight his way out of the quicksand. Verily, the judgment will lead to further instability and uncertainty owing to the continuing clash between the SC and the PPP.