A his­toric judg­ment?

The Pak Banker - - Front Page - Asif Ezdi

THE Supreme Court’s ver­dict in the As­ghar Khan case has been widely ap­plauded. Even our bit­terly squab­bling po­lit­i­cal par­ties seem to agree on wel­com­ing the de­ci­sion, though some have se­lec­tively re­jected parts of it that do not suit them. The only sig­nif­i­cant dis­sent­ing voice has been that of the chief elec­tion com­mis­sioner, who has pub­licly crit­i­cised the tim­ing of the de­ci­sion. The CEC seems to think that even 16 years af­ter the case was filed, the court should have de­layed its de­ci­sion fur­ther on grounds of some po­lit­i­cal ex­pe­di­ency. This is cer­tainly a very odd view, con­sid­er­ing that the main criticism against the ju­di­ciary in the past has been that in po­lit­i­cally sen­si­tive cases it has of­ten been guided by ex­pe­di­ency rather than le­gal mer­its.

Some of our com­men­ta­tors have called the Supreme Court de­ci­sion “his­toric”. But whether it re­ally mer­its that much overused ep­i­thet re­mains to be seen.

There was cer­tainly noth­ing his­toric about the find­ing that the Pak­istan Army sought to ma­nip­u­late the 1990 elec­tion in favour of Nawaz Sharif and the IJI. While the court ruled that the elec­tion was tainted by cor­rup­tion, it did not de­clare the whole elec­toral ex­er­cise to be in­valid. The out­come de­sired by the army was no doubt aided hugely by Be­nazir’s dis­mal gov­er­nance record and by re­ports of ram­pant cor­rup­tion un­der her gov­ern­ment, for which Zar­dari had al­ready won the moniker of “Mr Ten Per­cent”. Nev­er­the­less, the court’s ver­dict par­tially vin­di­cates her claim that the elec­tion had been “stolen” from her.

The chan­nelling of pub­lic money to politi­cians op­posed to the PPP was of course only one of the ways in which the 1990 elec­tion was ma­nip­u­lated. The army also em­ployed other meth­ods to ob­tain the elec­tion re­sults that it de­sired. Nor was the 1990 elec­tion an ex­cep­tion.

The fact is that there has hardly been an elec­tion in Pak­istan’s his­tory that has not been marred by fraud, breach of elec­tion laws, the influence of money and the mis­use of gov­ern­ment ma­chin­ery. It is also a fact that our civil­ian po­lit­i­cal lead­ers have been as guilty as the army gen­er­als of per­vert­ing the elec­toral process.

Bhutto did it on an un­prece­dented scale in 1977 and our po­lit­i­cal class does it all the time to the best of its abil­i­ties. The re­sult is seen in the over­whelm­ing pres­ence of tax cheats, loot­ers of pub­lic money and other va­ri­eties of law­break­ers in our leg­is­la­tures.

The Supreme Court judg­ment could still prove his­toric if it spurs the na­tion to take steps for a fun­da­men­tal re­form of our bro­ken elec­toral sys­tem. The CEC’s sug­ges­tion to “for­get the past and move for­ward” is no doubt well-mo­ti­vated. But if we are to “start a new era” of fair elec­tions, as he wishes, we must use the present op­por­tu­nity to re­move at least some of the ma­jor flaws that be­set our elec­toral sys­tem.

A lot would de­pend on whether and in what man­ner the gov­ern­ment im­ple­ments the Supreme Court ver­dict. The record of the Zar­dari gov­ern­ment is of course by no means re­as­sur­ing. Po­lit­i­cal con­sid­er­a­tions, in par­tic­u­lar the im­pact on the elec­toral prospects of the PPP, will be the dom­i­nant con­sid­er­a­tion.

There are three main ar­eas in which the at­ti­tude of the gov­ern­ment will be closely watched: ac­tion against As­lam Beg and Asad Dur­rani; ac­tion against politi­cians who re­ceived funds; and the clo­sure of any “po­lit­i­cal cell” in the pres­i­dency.

As re­gards ac­tion against Beg and Dur­rani, the Supreme Court stated cat­e­gor­i­cally that they had acted in vi­o­la­tion of the Con­sti­tu­tion. The court then di­rected the fed­eral gov­ern­ment to take “nec­es­sary steps un­der the con­sti­tu­tion and the law against them.” The ref­er­ence to the con­sti­tu­tion is highly sig­nif­i­cant. The court was ob­vi­ously re­fer­ring not only to Ar­ti­cle 244 which makes it oblig­a­tory on ev­ery mem­ber of the armed forces to take an oath of loy­alty to the con­sti­tu­tion but also to Ar­ti­cle 6 which de­clares the sub­ver­sion of the con­sti­tu­tion to be an act of high trea­son.

The gov­ern­ment ev­i­dently has no in­ten­tion to pro­ceed against the two ex-gen­er­als un­der this ar­ti­cle and there are in­di­ca­tions that it will sim­ply re­fer the mat­ter to the army for what­ever ac­tion it con­sid­ers proper. The gov­ern­ment’s mo­tives for not act­ing un­der Ar­ti­cle 6 against Beg and Dur­rani are the same as for its fail­ure to try Mushar­raf for high trea­son. Its main fear is that if top army gen­er­als are tried and pun­ished for breach of the con­sti­tu­tion, that prece­dent would also be cited to de­mand the ac­count­abil­ity of lead­ing politi­cians ac­cused of mas­sive cor­rup­tion, in­clud­ing one sit­ting in the pres­i­dency.

The gov­ern­ment’s fail­ure to pro­ceed against the gen­er­als un­der Ar­ti­cle 6 would send a neg­a­tive mas­sage by con­firm­ing the vir­tual im­mu­nity that our top brass has been en­joy­ing from the or­di­nary law of the land which ap­plies to or­di­nary mor­tals. The ques­tion would then arise whether the Supreme Court would pur­sue the im­ple­men­ta­tion of its or­ders with the same de­ter­mi­na­tion which it has shown in the NRO case and which has done so much to en­hance the stand­ing of the ju­di­ciary in the eyes of the pub­lic.

As re­gards ac­tion against politi­cians who re­ceived money from the army, Kaira de­clared at first that the FIA would in­ves­ti­gate the mat­ter and that the gov­ern­ment would try to com­plete the in­ves­ti­ga­tions in the short­est pos­si­ble time, pos­si­bly be­fore the care­taker gov­ern­ment takes of­fice. Since then, the gov­ern­ment has tried to back-track on the prom­ise, say­ing vaguely that ac­tion would be taken “ac­cord­ing to the con­sti­tu­tion and the law”. There is ev­ery in­di­ca­tion that while the gov­ern­ment would like to ex­ploit the is­sue po­lit­i­cally, it is not se­ri­ous about pur­su­ing the in­ves­ti­ga­tion be­cause it could pro­duce re­sults that do not serve its po­lit­i­cal in­ter­ests. The ini­tial op­po­si­tion of PML-N to an in­ves­ti­ga­tion by the FIA, es­pe­cially the party’s de­mands for UN in­volve­ment and for the es­tab­lish­ment of a Truth and Rec­on­cil­i­a­tion Com­mis­sion, was ex­tremely fool­ish. It not only strength­ened sus­pi­cions that Nawaz Sharif has some­thing to hide, but also gave the PPP a some­what plau­si­ble ex­cuse for its own se­rial de­fi­ance of Supreme Court’s or­ders.

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