Court­ing his­tory

The Pak Banker - - Front Page - Sal­man Akram Raja

AJUDGMENT based on a read­ing of his­tory in­evitably ex­poses the court to ques­tions of se­lec­tiv­ity and par­tial­ity. Such judg­ments are best avoided. Yet, the Supreme Court of Pak­istan has had to as­sess and judge his­tory each time a demo­cratic gov­ern­ment has been ter­mi­nated, whether through im­po­si­tion of mar­tial law or the use of the now de­funct Ar­ti­cle 58(2)(b) of the con­sti­tu­tion.

For in­stance, in Za­far Ali Shah’s case (2000) re­gard­ing Gen Mushar­raf’s coup of 1999, the court was asked to ac­cept the ve­rac­ity of the ver­sion of events pre­sented in sup­port of the coup: that the coup was in fact a counter-coup ne­ces­si­tated by prime min­is­ter Nawaz Sharif’s reck­less­ness in dis­miss­ing the army chief and di­vert­ing the air­craft that car­ried the chief and hun­dreds of other pas­sen­gers from its orig­i­nal route. The over­throw of demo­cratic author­ity was re­quired to gain con­trol over the air­craft’s flight path and save lives.

In ren­der­ing its judg­ment in sup­port of the coup the court ac­cepted the coup mak­ers’ nar­ra­tion of events thereby cre­at­ing a ju­di­cially sanc­tioned ver­sion of his­tory.

Sub­se­quent reve­la­tions and re­search have in­creas­ingly es­tab­lished that in fact the truth was close to the de­posed prime min­is­ter’s stand that was re­jected by the court.

The sub­ver­sion of the con­sti­tu­tional or­der was plau­si­bly a planned re­ac­tion to the prime min­is­ter’s an­noy­ance over Kargil.

Sim­i­larly, reve­la­tions made dur­ing the As­ghar Khan case, and ma­te­rial oth­er­wise pre­sented by his­to­ri­ans, strongly sug­gest that the dis­missal of the Be­nazir gov­ern­ment in July 1990 had less to do with the break­down of con­sti­tu­tional gov­er­nance in the coun­try, as as­serted by pres­i­dent Ghu­lam Ishaq Khan, than the fact that a sig­nif­i­cant enough num­ber of se­nior army of­fi­cials had come to the con­clu­sion that Mo­htarma was a ‘se­cu­rity threat’.

It is also now in­creas­ingly clear that a ma­jor part of this threat per­cep­tion was on ac­count of her op­po­si­tion to the Khal­is­tan move­ment. The ver­sion of events ac­cepted by the court in Khawaja Tariq Rahim’s case (2002) in up­hold­ing the dis­missal of the PPP gov­ern­ment now ap­pears to be noth­ing more than a ruse.

Dur­ing the course of the As­ghar Khan case, and es­pe­cially in the me­dia since the Oct 19, 2012 or­der, Gen As­lam Beg (retd) has at­tempted to in­voke an in­verted ver­sion of his­tory in his de­fence be­fore the pub­lic at large.

He has tried to paint the late pres­i­dent Ghu­lam Ishaq Khan as a despot bent upon thwart­ing the con­sti­tu­tional en­ti­tle­ment of the Pak­istani peo­ple and Be­nazir Bhutto to form a freely elected gov­ern­ment. In his ver­sion of his­tory, mem­bers of the armed forces, in­clud­ing him, had noth­ing to do with the po­lit­i­cal in­trigue planned inside the pres­i­dency by a cell set up by their supreme com­man­der. So he claims.

Gen Beg’s fa­ble runs counter to the es­tab­lished un­der­stand­ing of Pak­istan’s po­lit­i­cal his­tory, based on his­tor­i­cal ev­i­dence pro­vided by any num­ber of se­ri­ous his­to­ri­ans.

The idea of the then pres­i­dent, a timid bu­reau­crat who was a servile con­fi­dant of mil­i­tary rulers from Ayub to Zia, in­de­pen­dently dic­tat­ing to the army chief a po­lit­i­cal strat­egy against a politi­cian con­sid­ered a ‘se­cu­rity threat’ is laugh­able.

It is a his­toric fact that the funds dis­burse­ment op­er­a­tion of 1990 to thwart the PPP was a con­tin­u­a­tion of a sus­tained ef­fort that had started when the ISI cob­bled to­gether the Is­lami Jamhoori It­te­had (IJI) prior to the 1988 elec­tions.

Op­er­a­tion Jackal, aimed at push­ing through a no-con­fi­dence vote against Be­nazir Bhutto’s gov­ern­ment, fol­lowed in 1989. ISI op­er­a­tives were in­volved. This is what Ms Bhutto was to re­count in a later edition of her book, Daugh­ter of the East.

It was af­ter the fail­ure of Op­er­a­tion Jackal that she sought to ex­er­cise some con­trol over the ISI by ap­point­ing, for the first time in that or­gan­i­sa­tion’s his­tory, a re­tired rather than a serv­ing gen­eral as di­rec­tor gen­eral.

Knowl­edge­able ob­servers from Shuja Nawaz to Stephen Co­hen have sug­gested that Lt Gen Kallu’s (retd) ap­point­ment as DG, ISI was re­sented by those who mat­tered. This was clearly one of the fac­tors that pre­cip­i­tated the demise of the Bhutto gov­ern­ment through de­ploy­ment of Ar­ti­cle 58(2)(b) in Septem­ber 1990. It was the es­tab­lish­ment at ‘work’, not the pres­i­dent alone.

Gen Beg has also mis­chie­vously in­voked the fig­ure of the late prime min­is­ter, Zul­fiqar Ali Bhutto, as the per­son ul­ti­mately re­spon­si­ble for the plun­der of pub­lic de­posits placed with Habib Bank, then a na­tion­alised bank, in Septem­ber and Oc­to­ber of 1990 in or­der to steal that year’s elec­tion from the PPP.

Re­peated ref­er­ences have been made by Gen Beg to an al­leged no­ti­fi­ca­tion of 1975, never placed be­fore the court over the 16-year hear­ing, which had cre­ated a po­lit­i­cal cell at Mr Bhutto’s be­hest within the ISI.

For Gen Beg, the 1975 no­ti­fi­ca­tion, and none of the in­di­vid­ual of­fi­cers in­volved in the 1990 op­er­a­tion, was re­spon­si­ble for what­ever hap­pened. For him it is ir­rel­e­vant that there is no ba­sis for as­sum­ing that any no­ti­fi­ca­tion of 1975 in fact sanc­tioned ac­tiv­ity that could have jus­ti­fied the ISI’s in­sti­tu­tional in­volve­ment, or that of of­fi­cers act­ing in­di­vid­u­ally, in the elec­tion ma­nip­u­la­tion of 1990. Equally unim­por­tant for him is the fact that even if, for the sake of ar­gu­ment, such a man­date was placed with the ISI its dis­charge would have re­mained un­con­sti­tu­tional.

Gen Beg’s con­tor­tions of his­tory have re­it­er­ated the ques­tion that Pak­istani courts have had to ad­dress on sev­eral oc­ca­sions: to what ex­tent should judg­ments be based on as­sess­ment of his­tor­i­cal facts? The un­avoid­able an­swer ap­pears to be: to the min­i­mum ex­tent nec­es­sary. His­tory can never jus­tify vi­o­la­tion of con­sti­tu­tional prin­ci­ple. In ac­cept­ing one his­tor­i­cal nar­ra­tive over an­other, the court faces the risk of gen­er­at­ing a court-sanc­tioned his­tory that might come to be at odds with what is ul­ti­mately sup­ported by a more com­plete ex­am­i­na­tion of the facts by pro­fes­sional his­to­ri­ans and, more im­por­tantly, is ac­cepted by the peo­ple. When this hap­pens the court-ac­cepted ver­sion of his­tory, and the judg­ment based on such a ver­sion, as­sumes the aura of mere.

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