HOW significant will the order in the Asghar Khan case be in the overall progress of the democratic project in Pakistan?

Clearly, the short order announced by the Supreme Court is unique in several respects. It declares that former president Ghulam Ishaq Khan conspired with former COAS Gen Mirza Aslam Beg (retd) and former DG ISI Asad Durrani, in violation of their constitutional obligations, to unlawfully influence the 1990 elections by distributing funds provided by HBL, then a government-owned bank, to their favoured politicians.

It directs the abolition of any political cell in the presidency or the ISI or the Military Intelligence (MI). It directs the government to take action against the conspirators in accordance with the law and the constitution (presumably the reference is to Article 6 of the constitution). The order also directs the government to investigate the politicians who received such funds and to initiate criminal proceedings against them and initiate civil proceedings for the recovery of such monies.

On their part (and in departure with their usual practice), the government has announced that it will implement the Supreme Court order swiftly. Surely, the punishment of the wrong-doers in this case would be a significant deterrent for future adventurers in our armed forces?

A closer inspection reveals, however, that the order is far from being an unmitigated victory for democracy in Pakistan.

In the first place, the very fact that a Supreme Court order was necessary before any action against the conspirators could even be contemplated speaks volumes about the weakness of our elected organs of state.

Is it not ironic that this direction to end the political interference of the ISI and MI and to file criminal cases against army generals who rig electoral outcomes originates from the Supreme Court rather than the elected government or parliament?

Even more ironic is the fact that the directions were passed in proceedings initiated suo moto by the Supreme Court in response to a letter written by a retired air marshal rather than a petition filed by those affected by such rigging.

The principal victim of such rigging, the PPP, has spent, cumulatively, more than seven years in government since the 1990 elections. Surely, that was enough time to investigate the scandal, punish the perpetrators and introduce legislation that would bring our intelligence agencies to heel.

Apologists for the ‘budding and fragile’ democracy in Pakistan argue that politicians have learnt — through bitter experience — to be very cautious in any matter that might involve stepping on military toes.

However, the long-term stability of our democratic project requires that our elected leaders make full use of every opportunity to expand the democratic space available to them and not wait 16 years for the judiciary to ride to their rescue.

In Turkey, Recep Tayyip Erdogan successfully clipped the wings of the Turkish military and forced a trial of their coup leaders in the face of a hostile and a pro-military judiciary. He did so with the confidence of a populist leader who knows that he has enough public support to bludgeon through his democratic agenda despite the establishment’s opposition.

In Pakistan, unfortunately, our elected leadership seems to have relinquished the defence of democracy to an unelected judiciary.

The difference between the two countries is, perhaps, that our elected government’s strategy for survival rests upon President Asif Ali Zardari’s ability to manoeuvre and manipulate his way around various politicians and power-brokers and use their greed and their fears to his own advantage.

There is not even an attempt to win the kind of mass popularity needed to take strong decisions and effect institutional reform that would successfully banish the military from the political arena.

Nevertheless, the Asghar Khan judgment has the potential to dramatically alter the course of Pakistan’s future provided that the elected government and parliament are ready to use the space created for them by the judiciary.

If the government swiftly brings charges against Aslam Beg and Asad Durrani and their accomplices and brings them to trial; if these cases are used to set the precedent that army personnel have a duty to refuse to follow unconstitutional and unlawful orders passed by a superior officer; if the politicians who accepted monies from the ISI/MI are duly investigated and proceeded against and, most importantly, if the pressure created by the Supreme Court order is used by parliament to pass legislation that finally subjects the intelligence agencies to effective and regular governmental/legislative scrutiny (as is the norm in all civilised nations), this moment may long be remembered as the turning point for Pakistani democracy.

On the other hand, if the government decides to avoid any possibility of confrontation and proceeds in its customary ‘appeasement and reconciliation’ mode and leaves it to the Supreme Court to enforce its own order, the Supreme Court will need to decide upon one of two approaches.

The first — and more cynical approach — would be to simply abandon Pakistani politicians to their own fate.

Why should the Supreme Court assume the role of the guardian of the electoral process when the participants are clearly unwilling to take any responsibility or protective measures of their own?

A more earnest approach would see the Supreme Court actively monitoring the implementation of its order itself.

However, even the latter approach is unlikely to make much headway in the face of an obdurate military establishment and an uninterested government. You cannot thrust freedom on a people unprepared to accept it.

The writer is a barrister practising in Karachi.



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