The challenge ahead

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The challenge ahead

By Ikram Sehgal

Air Marshal (r) Asghar Khan waited 16 years for a judgement on the petition he filed in 1996 in the Supreme Court regarding the illegal funding of politicians in the 1990 elections. Authored by Chief Justice Iftikhar Muhammad Chaudhry, the detailed verdict concluded the elections were rigged against the PPP and that President Ghulam Ishaq Khan, with the help of army chief Gen Aslam Beg and then-director general of MI (Military Intelligence), and later of the ISI, Gen Asad Durrani, had used army officers to support the “election cell” set up illegally in the presidency.

This bold, landmark judgement should serve notice on the country’s political class, the military and the bureaucracy not to obey “unlawful commands,” that the action by the two retired generals was in their personal capacity. “They participated in the unlawful activities of the election cell in violation of the responsibilities of the army and the ISI as institutions, which is an act of individuals but not of institutions represented by them, respectively.”

To quote my article “Mixing facts with illusion” (March 22): “The ISI did not distribute funds to politicians in 1990, but it was the MI that did. The honourable chief justice had taken this perception to be a fact, but that was wrong. A technicality maybe, but it must be corrected.” On the receiving end from external vested interests (and their local partners), this gives more ammunition to the ISI’s detractors.

“Asad Durrani tasked the regional director of MI in Karachi, Brig Hamid Saeed, with spreading the largesse in Sindh and Balochistan. The MI officers assumed the Rs140 million that came into the specially opened six accounts came from the GHQ. Hamid Saeed and Mir Akbar had never met Younus Habib, and they were unaware he was the source of the funds. The illegal transactions took place from mid-September 1990, when the funds were received (only about Rs30 went to political figures, Rs3.6 million went to non-political figures). It ended five-six weeks later around the third week of October 1990, when the balance of the Rs140 million, approximately Rs60.5 million, was sent back to the GHQ (Rs40 million having been returned earlier).

The reason for the confusion between perception and fact is probably because by mid-October 1990 Asad Durrani was promoted to lieutenant general and posted as director general of the ISI, an appointment he held concurrently for some time with his post of director general of MI. The distribution of funds to politicians was over by then. Col Mir Akbar, who actually operated the six accounts and personally disbursed most of the funds, subsequently replaced Col Sajjad, the ISI head in Karachi, on posting from MI to the ISI on Asad Durrani’s request. Around the end of October, Hamid Saeed rendered final accounting to Durrani, who was by this time director general of the ISI, about the funds disbursed, the balance was refunded. While MI officers were involved more as individuals, rather than the MI was as an institution, this was definitely not an ISI operation. Respectfully, the Supreme Court should correct this wrong perception.”

To quote further: “While in service all three MI officers carried good reputation for being upright soldiers of good integrity and character. Though the instructions came from the COAS through the director general of MI, it did fall in the grey area of being an ‘unlawful command.’ These officers must have been convinced that the operation was necessary, because of the request for ‘in-camera’ proceedings one can only guess that national security reasons will eventually be cited as ‘extenuating circumstances.’ A meticulous person of outstanding merit, Hamid Saeed is incapable of telling a lie. Though he has had five stents put in his heart in a two-stage operation about nine months ago, the Supreme Court should call this outstanding soldier (and citizen) to testify. Their Lordships will find this dispassionate man’s heart in the right place.”

When he finally did appear before the Supreme Court this October, Hamid Saeed handed over a 21-year-old diary in the court with details. The court made clear that no agency has any role to play in the political affairs of the country, such as the formation or destabilisation of a government or interference in any elections. The credit obviously goes to the judiciary not only for exposing details of the unholy nexus between politicians, the military and the intelligence agencies, and the fact that it is sometimes detrimental to our national interests. The Supreme Court must be commended for eventually bringing a closure to such a case, a first of its kind and perhaps unheard of in the past. For its part, the ISI is subjected to all sorts of pressures by external forces for their own ulterior motives, some among our media usually joining in when they should know better.

The mud-slinging between the ruling PPP and the opposition PML-N because of the verdict is further muddying the already murky politics in the country. Dwelling at length on the role of the president the verdict speaks about cleansing of the presidency of political activities, the Supreme Court obliquely pointing fingers at President Asif Zardari is bound to affect his position, virtually deciding the outcome of the contempt case against him in the Lahore High Court for holding dual office. Will Zardari back down and end the gross violation of the constitution? Or carry on and buy up the elections, as usual?

Challenges still lie ahead. The Supreme Court ordered legal action against the two former generals of the army, ordering the FIA to initiate a transparent enquiry against politicians who received “donations.” Will punitive action be taken against everyone who the Supreme Court identified as having committed crimes? Or will only the army be targeted and, for good measure, the ISI too? The army has no grounds to try these officers by court martial. The government may blow hot but on what legal grounds will it try to punish the few officers?

The interpretation of “unlawful command” may be correct for the Supreme Court in respect of the-then COAS and ISI chief, but there are ambiguities because of the stated national security reasons. Below that the level, the Supreme Court’s interpretation of what constitutes an “unlawful command” could affect the discipline of the armed forces. “Barrack-room lawyers” can potentially challenge every command given to them under the pretext of it being “unlawful.” Does the honourable chief justice want lawyers attached to every unit to determine the status of each and every command, whether lawful or unlawful?

Only the future will tell whether armed forces personnel will be more careful before getting involved in such adventures. While the verdict evoked a lot of hope about the rule of law, whether it will prove a watershed in the electoral history of Pakistan and whether any lessons will have been learnt by our politicians, generals and bureaucrats will soon be seen in the impending elections. The immediate constitutional requirement, the ball is now firmly in the court of Chief Election Commissioner Justice Fakhruddin Ebrahim. His acid test will be implementing the Supreme Court verdict on the simultaneous holding of political office by the president.

Source: The Challenge Ahead