Striking a balance?

What the short order said in the Asghar Khan case

The Asghar Khan case has been a thorn in our political and judicial odyssey for almost two decades. In a democracy-starved nation, the events culminating in the case serve as a horrific reminder of the power of the ‘establishment’ to override public will. For many of the present-day champions of democracy, the case is a testament to their undemocratic roots. But perhaps most disturbingly, the Asghar Khan case has, for years, served as a blotch on the fabric of our judiciary – highlighting its impotence in taking on the khakis.

On Friday, however, after a wait of 16 years after filing the application, the honourable Supreme Court delivered its short order in this historic case. And with it, the court will be hoping to bury (once and for all) a large skeleton that we have been hiding in our national closet.

But does the order go so far as to establish that the long arms of justice, in our land, extend beyond the barricading of the GHQ? The answer requires a further analysis.

The order, authored by the chief justice himself, is declarative in nature. The language of the order is simple and does not get bogged down with elaborate references to statutory provisions or legal technicalities. Wisely, the court has left all that for the detailed judgment.

A deeper analysis of the order discloses, however, that the declarations made therein can be bifurcated into two broad categories. First: bold and unequivocal. Second: more of a balancing act.

In the first of these categories (bold), the honourable court makes the following declarations: 1) that “in view of the overwhelming material”, the 1990 election was “subjected to corruption and corrupt practices” through an “Election Cell” created in the Presidency, “aided by” the then COAS and DG ISI, through money provided by Younas Habib; 2) that “the president of Pakistan, chief of army staff, DG ISI or their subordinates certainly are not supposed to create an election cell or to support” any political party or individual; 3) that Ghulam Ishaq Khan, General (retd) Aslam Beg, and Lt Gen (retd) Asad Durrani “participated in the unlawful activities of the Election Cell” and violated the constitution “by facilitating a group of politicians and political parties, etc”, 4) that the “ISI, MI or any other Agency like IB have no role to play in the political affairs of the country”, nor can they “facilitate or show favour to a political party” or individual. The same is “violative of oath of their offices” and must be “dealt with under the Constitution and the law”; 5) that any election cell in the “Presidency or ISI or MI or within their formations” “shall be abolished immediately”; and 6) that recovery proceedings be instituted against the “persons specified”, and Rs 80 million deposited in Account No 313, titled “Survey and Construction Group Karachi”, maintained by MI, be returned with profit.

These declarations, especially the ones relating to the guilt of former generals, are commendable and a courageous step by the judiciary into the unchartered territory of holding (even retired) generals accountable for their actions.

But away from these, the order makes certain other “declarations” that are less than straightforward – and made perhaps as a balancing exercise of sorts.

The most blatant of these is the overt exoneration of the ‘institution’ of army. In this regard, while declaring that activities of the then COAS and DG ISI as “unlawful”, the order pointed states that these were “act[s] of individuals but not of institutions represented by them respectively”. How the actions of a sitting COAS or DG ISI (which also involved several other military officials) were “individual” acts, and not that of the “institution” is hard to understand. And how then, do you distinguish between individual and institutional actions? If the same group of military officials had advanced on a beachhead or captured an enemy post, would that also be individual actions? Is there some code word that the generals say before issuing institutional commands as opposed to individual orders? We can only hope that the detailed judgment would shed some light on this.

In fact, an entire “declaration” of the court’s order is dedicated to appeasing the institution of the khakis, as the court declares, “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”. While there is no cavil with this proposition, and we all respect the men in uniform, how does this relate to the Asghar Khan case? And why the need for a special declaration in this regard? Is this not an exercise undertaken to pacify an institution? If the court is truly shedding its ‘fear’ of the khakis and declaring that former generals are guilty, why the need to appease the army in the same breath?

Also, the court is careful in not imputing guilt to any particular politician (even while accepting the guilt of those who distributed the money among them). The court, in this regard, declares that “Rs 60 million was distributed to politicians… however, without a thorough probe no adverse order can be passed against them in these proceedings”. It is no secret that the ‘beneficiaries’ of this alleged bribe-money belong to one particular party (for the most part). And as a result, not imputing any guilt to them would result in partisan backlash. The court seems to be anticipating this, and thus strikes a balance by directing the FIA to commence “legal proceedings” against all such “politicians, who allegedly have received donations to spend on election campaigns in the general election of 1990”.

Separately, the court also (and correctly) points out that the president “represents the unity of the Republic under Article 41 of the Constitution”, and that partisan politics by the president (e.g., establishing an election cell) “violates the Constitution”. And in so declaring, the court goes a step further, to say that such a violation “may lead to an action against him under the Constitution and the law” (notwithstanding any argument of possible immunity). Reading the short order, it is easy to see that reference to “action against” the president for partisan activity was not for Ghulam Ishaq Khan, but instead was made with one eye on Asif Ali Zardari. This declaration is bound to be consequential in an election year, especially with the dual office case still pending before the Lahore High Court (next date of hearing: 31 October).

On the whole, the short order is as much as anyone could reasonably have hoped for in such a controversial case. While we all await the detailed reasoning behind this order, what is critically important is to ensure that the state machinery is immediately ‘put into motion’ to pursue the directives of the honourable Supreme Court, to the fullest extent of the law.