Misjudgment by the Supreme Court – the Fall Out
October 22, 2012 (Edit)
By Usman Khalid
http://www.rifah.org/site/misjudgement-by-the-supreme-court-the-fall-out/
Disappointed at the verdict in Asghar Khan case, the people expect a robust judgment in the Memogate case
London, 22 October 2012. In the 48 hours since the announcement of the verdict by the Supreme Court on the Asghar Khan case, every TV channel has been discussing the importance and impact of the ‘misjudgment’. The case pertained to passing on political donation by a bank to politicians allegedly chosen by the then President Ghulam Ishaq Khan in consultation with the COAS – General Aslam Beg- and DG ISI – Lieut General Asad Durrani prior to Elections in 1990. The complaint by Air Marshal Asghar Khan was that it was improper use of the military officers and that a crime of ‘manipulation’ of election result might have occurred. The military officers by inclination and training resent being used for politicking. General Asad Durrani gave in writing the details of payments as he could recall six years later when he was Pakistan’s Ambassador in Germany, even though he was bound not to disclose details of anything he came to know as an officer in the intelligence. He did so perhaps because he resented being used to run political errands and he wanted to stop recurrence of such conduct. Senior military officers appeared before the Supreme Court as witnesses because they share the resentment with Air Marshal Asghar Khan of the military being used to run political errands. But the press and the politicians are presenting the SC judgment as indictment of the then COAS and DG ISI of manipulating elections and some even demanding their arrest and trial for high treason.
I call this a misjudgment because it could have been foreseen that the verdict could be used severally, either to focus attention on dire consequence of 1) the President not being neutral, 2) the use of military officers to run political errands, 2) to rig the next election by loading the dice against the PML(N). Already, the debate in the press is skewed with much of the comments in the press decrying the PML(N). Until this misjudgment, the Judiciary, the military and PML(N) appeared to be on the same side against corruption and mis-governance. It was hoped that there would be peaceful transfer of power after the forthcoming elections. Now all three stand discredited and the enemies of Pakistan who want its disintegration are happy.
Since the decision by the new COAS – General Kiani – to disband the political cell in the ISI and the resignation of General Musharraf as the President under pressure from, among others, ex-servicemen’s association, there was a civil and military consensus that the military should not be used by civil or military Presidents to bribe or intimidate politicians. The role of the military in politics is no longer an issue; it can have no role other than its statutory role which is counter-intelligence – keeping an eye of foreign operatives and deal with their links and contacts inside Pakistan. It is the inadequacy of the ISI in its counter-intelligence role that most of the problems have arisen. Even a sweeper cannot be employed by a military unit without security clearance but no such clearance is required to become the President, the Prime Minister, a Minister – even Interior Minister. The former DG ISI – General Pasha – found out that Pakistan’s Ambassador in the USA – Hussain Haqqani – had written a memo on behalf of President Zardari to Admiral Mullen seeking US help in removing the present defence team and install a new team headed by none other than Hussain Haqqani himself. The idea was to act quickly when the military was facing internal and international criticism at being unaware of the presence of OBL in Abbotabad. The Supreme Court did take notice and set up a commission to investigate which found that the memo had indeed been written but Hussain Haqqani who had fled abroad long before its findings became public. It is moot point of it is failure of the ISI or the Supreme Court that witnesses to identify and secure the conviction of the accused has eluded both. However, the fact that Hussain Haqqani lived in the President’s House in Islamabad when the case was first heard by the Supreme Court, leaves no one in doubt that President Zardari is complicit if he is not the main accused in the case, which has revealed high treason.
The COAS and the DG ISI were faced with a similar situation – albeit less serious – in 1990. They found that the then Prime Minister – Benazir Bhutto – had made commitment to the US to back roll the nuclear programme which was then close to coming to fruition. Beside corruption which was cited as the reason for her dismissal under Article 38 (2) b of the Constitution, the reason for her dismissal was her devious ways in formulating and implementing policy in violation of law bypassing the state institutions. Her husband is doing the same today. Since the Supreme Court enjoys wide public support, it was hoped that the SC would deal with the repetition of the same deviousness firmly. The Asghar Khan case provided the Supreme Court an opportunity. General Durrani and Brigadier Hamid Saeed gave out the reasons why Benazir had been dismissed by President Ghulam Ishaq Khan; they all believed if she had been returned to power in three months, the nuclear programme of Pakistan would have been irreversibly compromised. Decisions at high level do not entail black or white options; the choice is between several shades of grey. That is why political leadership with its hand on public pulse, takes such decisions. The COAS and the DG ISI did not take the decision, they presented the facts and the decision was rightly taken at the highest political level. The issue was not fairness or otherwise of elections as it is being made out. The result of elections is impacted by events. The result of 2008 Elections was changed by the sympathy vote for the PPP in the wake of the assassination of Benazir Bhutto and belated return of Nawaz Sharif to Pakistan under Saudi pressure.
The efforts of the establishment to impact the result of elections invariably do not succeed. Benazir won in 1988 despite the ISI having helped create the IJI alliance against her. In 1990, the effort to have Mr Ghulam Mustafa Jatoi become the Prime Minister also did not succeed. Mian Nawaz Sharif had popular mandate both times he won the elections. Pervez Musharraf did succeed in getting the PML(Q) win the election in 2002 but it was more the result of the absence of Benazir as well as Nawaz Sharif from the political arena. The source of finds of political parties is always coloured in every country. That some parties got a donation from a Pakistani bank is not as bad as some parties getting money from the CIA and RAW. But the military was wrong to allow itself to become a conduit. That is why the SC judgment has been welcome even in military circles. That said, no crime has been committed under Pakistan’s law or under Pakistan Military Act. The worst the two high military officials can be accused of is misdemeanor, not crime. All the excitement about the military being caught red-handed is out of place. But it can have dire consequences if the emphasis does not shift and shift fast.
What different scenarios could emerge from the misjudgment?
Scenario 1
The most likely scenario is that focus remains on the military being the source of all evil. All the political parties including the PML(N), PTI, JUI. ANP and MQM are demanding criminal prosecution of those who have ‘confessed’. Trial by a civil court which the accused would surely demand, would not secure a conviction because Benazir Bhutto as well as Ghulam Ishaq Khan are both dead. The trial might confirm the widely held belief that Benazir was indeed compromising vital aspects of national defence and GIK might emerge as a real hero of the chapter of history which has been elaborately distorted.
Scenario 2
The next most likely scenario is that the focus shifts to securing the disqualification of Mian Nawaz Sharif from participation in the next elections and adversely affecting the popularity of PML(N). The campaign against the PML(N) is unlikely to benefit the PTI; but it might bring a landslide victory for the four parties in the ruling coalition PPP, ANP, MQM and PML(Q). I fear the repetition of the experience of landslide victory of the PPP in 1977, which heralded an era of 11 years of martial law.
Scenario 3
In the unlikely event of the focus shifting to the role of the presidency in election and all the opposition parties demanding that a new President is elected for a full term before even the nomination of an interim Prime Minister and caretaker administration, the present crisis could transform into an opportunity for real change. I propose the name of General Ali Kuli Khan for President. He has the pedigree, the personality and the experience to be the Supreme Commander of the armed forces to make the nation proud.
The political parties are behaving predictably; they never can discern the aspirations and interest of their constituency; they prefer suicide which is attended by a lot of thrill. But the judiciary and the press have also been disappointing. There were three aspects of the judgment but the focus has been on punishing the witnesses who spoke the truth and showed clear resentment over being use as errand boys by the politicians. The focus should have been on the adverse impact of the President not being politically unbiased and neutral. That is even more important today than in 1990. President Zardari is the leader of his party in clear command of his troops. President GIK was neither a politician nor the leader of political party and yet he could marshal so much in an effort to affect the result of elections. That the Chief Executive was an interim Prime Minister did not make any difference on President’s ability to manipulate election results.
The Supreme Court has another chance to redeem its reputation and inspire confidence in the people. The Memogate Case is coming before the SC soon. The Commission of Inquiry has already found that there is prima facie case of high treason against Hussain Haqqani. All that the SC has to do is to judge that he acted on the instructions of President Zardari and demand his resignation from the office of President. The toothless parliament is not going to impeach the leader of the majority party; a new precedent of criminal impeachment by the Supreme Court would have to be set. We live in dangerous and unusual times. If the judiciary can act boldly and remove the President, the military would not need to take action. If it does not, there would have to be another coup d’état and yet another occasion to invoke the ‘doctrine of necessity’. ++
|