In a landmark judgement, the Supreme Court on Friday ordered the federal government to take punitive action against two retired military officers, former Chief of Army Staff Gen (r) Mirza Aslam Beg and former Inter-Services Intelligence director general Lt General (r) Asad Durrani for “flouting the constitution”.
The court also ordered the recovery of Rs 80 million from politicians that was allegedly distributed to sway the 1990 election in favour of the Islami Jamhoori Ittehad (IJI).
If the government implements the court order, it would be for the first time in the country’s history that top generals, including a former COAS, are tried for intervening into political affairs of the country – sending a strong signal to the barracks that no one should mess with the democratic system in the future. Other than the generals, the court’s order may prove a bombshell for politicians like Nawaz Sharif, Mir Zafarullah Jamali, Jam Yousaf, Begum Abida Hussain and Hasil Bizenjo, who are still in the mainstream political arena and are flexing their muscles to take part in the upcoming election.
Court order: Announcing its seven-page short order in the decades-old case moved by former air chief Asghar Khan, Chief Justice Iftikhar Mohammad Chaudhry said both generals had acted in their individual capacity and that their acts had brought a bad name to the country, its armed forces and its spy agencies.
“Their (generals’) acts have brought a bad name for Pakistan, its armed forces as well as secret agencies in the eyes of the nation, therefore, notwithstanding that they may have retired from service, the federal government shall take necessary steps under the constitution and law against them,” the order said, dropping a hint that action may be taken against the retired generals under the army act.
The court also came down hard on former president Ghulam Ishaq Khan (late) and stated that as the head of the state, he also had violated the constitution. The court also directed legal proceedings against politicians who allegedly received funds from the ISI in 1990. “Similarly, legal proceedings shall be initiated against the politicians who allegedly have received donations to spend on election campaigns in the general election of 1990, therefore, transparent investigation on the criminal side shall be initiated by the FIA against all of them and if sufficient evidence is collected, they shall be sent up to face the trial according to the law,” said the short-order. The court also did not absolve Younas Habib, the main character in provision of funds to IJI politicians, as the order stated, “Younas Habib shall also be dealt with in the same manner.”
The CJ directed that proceedings should also be initiated against those responsible for affecting the recovery of sums received by them with profit by initiating civil proceedings according to the law. “An amount of Rs 80 million, stately, had been deposited in Account No 313 titled Survey and Construction Group Karachi, maintained by the military intelligence (MI), therefore, this amount with profit should be transferred to Habib Bank Ltd if the liability of HBL had not been adjusted so far, otherwise, the same might be deposited in the treasury account of the government of Pakistan,” the court ordered.
The bench ordered that any election or political cell in the Presidency or the ISI or the MI or within their formations should be abolished immediately and any letter or notification to the extent of creating any such cell or department (by any name whatsoever, explained herein), should stand cancelled forthwith. Referring to the role of the former COAS and the former spymaster in the election fraud of 1990, the CJ observed that the armed forces, under the directions of the federal government, defended Pakistan against external aggression or threat of war and, subject to law, were to act in aid of civil power when called upon to do so under Article 245.
“The armed forces have always sacrificed their lives for the country to defend any external or internal aggression for which it being an institution is deeply respected by the nation,” he added. The court observed that the armed forces, in discharge of their functions, seek intelligence and support from the ISI, MI, etc., and on account of security threats to the country on its frontiers or to control internal situations in aid of civil power when called upon to do so.
“However, the ISI, MI or any other agency like the IB (Intelligence Bureau) have no role to play in the political affairs of the country such as formation or destabilisation of governments, or interference in the holding of honest, free and fair elections by the Election Commission of Pakistan,” the order said.
The CJ held that in the instant case, it was established that in the general elections of 1990, an Election Cell was established in the Presidency to influence the elections and it was aided by Gen (r) Mirza Aslam Beg who was the then COAS and by Gen (r) Asad Durrani, the then ISI director general. The court held that both the officers participated in the unlawful activities of the election cell in violation of the responsibilities of the army and ISI, which was an act of individuals but not of institutions represented by them, respectively.
The chief justice said the general election held in the year 1990 was subjected to corruption and corrupt practices as in view of the overwhelming material produced by the parties during the hearing.
The court said it had also been established that an election cell was set up in the Presidency to provide financial assistance to favoured candidates, or a group of political parties to achieve desired result by polluting the election process and to deprive the people of Pakistan from being represented by their chosen representatives.
Harsh words exchanged in court: Earlier during the proceedings, harsh words were exchanged between the bench and Attorney General (AG) Irfan Qadir, who said the court could not regulate the presidential office, but that was what appeared to be happening in the court.
The chief justice remarked that according to the constitution, the president held the most significant office and he was the head of the state, not the prime minister. He further observed that the court would continue to support the democratic process and would not allow anyone to derail the democracy. He said the president could not set up an election office and he should be a neutral person. Expressing annoyance over the observation made by a member of the bench about the poor performance of the Pakistan People’s Party (PPP) government, AG Qadir said the court should not blame the government and should instead tell the people why the case had been pending for the past 16 years.
He went on to say that the judiciary had given permission for military intervention. However, the CJ asked the AG to present arguments according to the case. Arguing, Attorney General Irfan Qadir said a deceased president could not be put on trial. The chief justice responded that the constitution regulated president’s office as it was symbol of the federation. “It is not the duty of a president to influence elections. Only an unbiased president can be a symbol of the federation,” he asserted. Expressing displeasure over Justice Jawwad S Khawaja’s statement that PPP had not done anything in the last four years, the attorney general said the court should not blame the government for this. Criticising the court further, Qadir said the judiciary had even given permission for military intervention, to which Chief Justice Iftikhar Muhammad Chaudhry remarked that he should present arguments according to his duty.
Ministry of Defence representatives were also present in court. They told the bench that letters had been written to the MI and the ISI with regards to the Rs 80 million that were allegedly kept away.
Asghar Khan welcomes verdict:
The petitioner, Asghar Khan, welcomed the court’s verdict and said the government should initiate criminal proceedings against those involved in the Mehran Bank scandal.
Talking to reporters outside the Supreme Court, Khan said whoever committed a crime, whether civilian or in uniform, should be punished.
He said it was for the first time in the country’s history that a ruling had come against top military officials.
Khan’s counsel Salman Akram Raja, said it would be impossible for the government not to act on the court’s verdict. He said Article 6 could be used to proceed against former army chief Gen (r) Mirza Aslam Beg and Lt Gen (r) Asad Durrani. He said that the court had clarified that no one could hide behind an unconstitutional order.
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