Testing judicial mettle

Can the court rein in the spooks?

Every once in a while, during the course of a nation’s journey of self-discovery, a clear and present opportunity is presented to correct the wrongs of the past and set the course for a new and promising future. The Supreme Court of Pakistan has one such opportunity before it now – the Asghar Khan case.

It is no secret that the ISI has been dabbling in Pakistan’s politics for many decades – at the very least since the creation of its political-wing in the 1970s. And this practice continues still today. However, either out of fear or the extreme wizardry of our spymasters, no one has ever come forth with substantive proof of the ISI’s tinkering with the democratic process.

That, however, doesn’t apply to the Asghar Khan case. For once (and probably for the last time ever) we have on record the sworn affidavits of military’s top brass, including former DG ISI, admitting that they bribed certain politicians into forming the IJI as a counterforce to the PPP (having deemed Benazir Bhutto a ‘national security threat’ pursuant to a tapped phone conversation between her and Rajiv Gandhi in which the two premiers agreed in principle to mutual troop reduction). And if this was a slam-dunk, add to it the fact that no alleged recipient of the money has come forth to deny the claim.

All this amounts to blatant violations of the law. The military officers involved have, prima facie, violated their oath under Article 244 of the Constitution, which forbids them from “any political activity”. They have also subverted the democratic process, hatched a conspiracy against the state and violated Article 5 (Loyalty to State and obedience to Constitution). Additionally, they have also violated section 15 (Attestation/Oath), section 31 (Mutiny) and section 42 (Illegal gratification) of the Army Act, 1952, and should have been court martialed.

Similarly, the elected representatives who participated in this abominable exercise could be held guilty under section 78 (Corrupt practice), 79 (Bribery) and 83 (Illegal practice) of the Representation of People Act, 1976.

The stage is set, and the matter is now before the honorable Supreme Court. And the Court has three possible roads to walk down.

One, it could hear the matter and not decide the issue – to the dismay of everyone but the culprits. Following this road, the court could listen to the arguments and simply reserve the judgment; which, if reserved for long enough for a judge on the concerned bench to retire, would mean that the entire case would have to be reheard by a fresh bench. Alternatively, a commission of sorts could be constituted to investigate and prolong the issue (though it is hard to imagine what investigation could be required since the affidavits are on record and no one has denied the facts stated therein).

Two, the court could limit its judgment to the disclosure of the affidavits and a verdict against the generals, leaving the prosecution of offences to the government. While this – the convicting of three and four star (retired) generals – would be no small feat, this is perhaps the lesser goal. Much more important than punishment (for crimes committed almost 25 years ago) is the need to set a direction for the future.

This brings us to the third option – a judgment that goes beyond mere disclosure and conviction, to take on the virtuous endeavour of defining the contours of ISI’s authority. Currently, there is no law that governs the ISI, unlike some of its international counterparts including the CIA (Central Intelligence Agency Act, 1949) and MI-6 (Security Service Act, 1989). In the absence of a legislative mandate, the ISI essentially operates without any check. And this problem extends far beyond the circumference of the Asghar Khan case, into the darkness of the missing-persons issue and the murder of Saleem Shehzad.

Stricto sensu, ‘legislating’ the ambit of ISI’s authority falls outside the gates of judicial responsibility. this is exclusively the parliament’s domain. But the issue needs to be viewed through the prism of two connected realities: one, the parliament (this or any other) is not likely to stand up to the intelligence apparatus and deliver a meaningful legislation, and two, over the past some years our (independent) Supreme Court has edged ever closer to ‘legislating justice’ in areas that parliament stands impotent.

As a result, based on the facts of the Asghar Khan case, the court can make simple declarations that effectively form the law and limit ISI’s role to a (somewhat) constitutionally adherent agency: declaring ISI’s influencing of domestic politics as unconstitutional; requiring that ISI’s budget, while being a secret from open publication, must have some accountability process in the civilian government; declaring that, independent of the government, the ISI cannot define what constitutes ‘national security’; declaring phone-tapping, except in accordance with law (section 54 of PTA Act), as illegal.

In this regard, the Asghar Khan case is a test of judicial mettle. And millions across this land, who rallied for an independent judiciary, are expectantly looking towards the apex court.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]