A historic judgment?
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.