Air Marshal Asghar Khan's human rights petition (HRC 19/96) remains unheard. Chief Justice Sheikh Riaz Ahmad is currently in South Africa, and when he returns he will preside over this country as its acting president in the absence of the president who will be away in the United States.
He may, therefore, not have the time or inclination to form a bench to hear Asghar's case, to order that it be decided quickly, or to order that pending the decision handed down, those who are prima facie guilty of rigging elections in the past be disqualified for the time being from contesting the upcoming elections.
Our former Chief Justice of Pakistan, Sajjad Ali Shah, in his book 'Law Courts in a Glass House', (OUP 2001) touches upon the Inter-Services Intelligence department's role in this country's electoral process.
On June 11 1996, Prime Minister Benazir Bhutto's interior minister, retired Lt General Naseerullah Babar, announced on the floor of the National Assembly that the former chief of army staff, General Mirza Aslam Beg had, in 1990, during the run-up to the elections held that year, withdrawn an amount of Rs.140 million from Mehran Bank, handed it over to the Inter Services Intelligence chief, Lt General Asad Durrani, and asked him to suitably disburse the amount to a selection of anti-PPP politicians and thus rig the elections in favour of the ISI- tailored IJI and Nawaz Sharif (who himself was given three million rupees).
Shortly thereafter Justice Shah received a letter from Air Marshal Asghar Khan, copied to the then COAS, General Jehangir Karamat, drawing his attention to the matter. On the basis of this letter, the attached press clippings and an affidavit signed by Asad Durrani listing the politicians to whom money had been paid, the Supreme Court decided to register a case under Article 184(3) of the Constitution.
The petitioner, Asghar Khan, requested that Beg, Durrani and Younus Habib of Habib and Mehran Banks be named as respondents. The ISI requested that the hearing be in camera and the court agreed to the request in so far as proceedings regarding the legal position of the ISI were concerned.
Hearings commenced in February 1997 and continued through the year. On November 6, the statements of Babar and Durrani were to be recorded, and Justice Shah recounts how his court was faced with the awkward question as to the law under which the ISI and its political cell had been set up. Beg's counsel, the weighty Akram Shaikh, after fulsome praise of the agency and its great achievements - greater than those of RAW, the KGB or MI-5 - explained how the political cell had been established in 1975 under the orders of the then prime minister, Zulfikar Ali Bhutto.
The court asked the attorney general (Nawaz's lawyer Chaudhry Mohammed Farooq) to provide the relevant documentation as to the scope of the activities of the political cell and to clarify whether, under the law, part of its duties was to distribute funds for the purpose of rigging elections. The AG, of course, wriggled out of that one by stating that the matter was of such a 'sensitive' and 'delicate' nature that it could not be heard in open court.
Asghar Khan's lawyer, Habibul Wahabul Khairi, countered by saying that as the entire matter had been aired in the press, with all the names involved fully listed, there was little left to warrant in-camera proceedings, and besides, the people had every right to know how their money had been used and whether the use in question was permitted by law. The court, however, allowed the recording of Babar's and Durrani's statements and their cross-examination to be held in camera, which were done on November 19 and 20.
That was the last hearing of this important case. Eight days later, on November 28, 1997, the Supreme Court was stormed by men of the government of Nawaz Sharif. A group of judges of the Supreme Court (whose intention for some months had been to oust Sajjad Ali Shah) via a series of orders issued by the Peshawar and Quetta benches forced him to step down as chief justice. Sajjad went on leave prior to retirement and Justice Ajmal Mian took his place.
The Herald, the monthly magazine of this newspaper's group, in its issue of April 2000, published a report by Mubashir Zaidi ('Forging democracy') which made a mention of Asghar Khan's petition: "The case has since been heard and on October 11, 1999, just a day before the military overthrew the 'heavily mandated' Sharif government, the sitting chief justice, Saiduzzaman Siddiqui, announced that he had reserved judgment on the ISI case."
Justice Siddiqui, the presiding judge, now off the bench as he did not take the oath under the January 2000 PCO, confirms that he did make such an announcement. Before he could write his judgment, General Babar saw him in his chamber and prevailed upon him to send notice to and examine Farooq Ahmad Khan Leghari and others mentioned on the lists before announcing his judgment. In the interest of justice, he ordered that the desired notices be issued.
Thereafter, the case was apparently 'morgued'. Asghar Khan on several occasions reminded Saiduzzaman's successor, the new Chief Justice, Irshad Hasan Khan (now our chief election commissioner), and requested him to take up the case but he received no response. Justice Khan was far too busy attending to more vital affairs.
So, the important issues remain unresolved. Those accused of the giving and taking of the people's money for illegal and unlawful purposes (unless the relevant ISI law states otherwise) are prima facie guilty, but they have not been convicted and are free to rig and contest elections, possibly be elected and will be again allowed to rob the nation. Should the givers and takers not be brought to book and disqualified? There is still time.
There is one lesson we should learn from history. The last time we had free and fair elections was in the days of General Agha Mohammad Yahya Khan, as a consequence of which we lost half our country. We must ensure by whatever means we can command that the free and fair elections which are scheduled to be held in October do not result in the loss of the remaining half.
