Such aakhay bhanbar machda-aye — Bulleh Shah

THE omens are that the Pakistani people’s celebration of the Supreme Court’s (SC) rulings on Air Marshal Asghar Khan’s petition about the rigging of the 1990 general election is going to be short-lived.

It is not possible to recall without a touch of sadness the long time the people were kept waiting for the wheels of justice to turn. How many twists in the country’s tale of woes might have been avoided had timely notice been taken of the aggrieved parties’ publication How an election was stolen in 1991? The case under reference is a classic illustration of the adage that justice delayed is justice denied. Now that the SC has given its finding a whole brigade of spoilsports has jumped into the arena to nullify it. Taken objectively, the court’s verdict should have led to a strengthening of the democratic institutions against any extra-constitutional challenge. This is unlikely to happen because the political parties that matter appear to be more keen to indulge in partisan games than to put up a united front against the usurpers of the people’s rights.

Although some observers have complained of its inadequacy in certain respects there is little ambiguity about the short order announced by the SC. The charge of interference in the electoral process against the two generals commanding the army and the ISI in 1990 has been established by the record before the court. The charge against collaborators among political figures calls for further inquiry. That process is unlikely to be smooth.

The main opposition party has rejected a probe by the agency named by the court, without pausing to ponder the damage caused to its claim as the foremost defender of judicial activism. It has also been alleged that practically no one is free from the stigma of using money to rig the polls. A section of public opinion favours the creation of a commission or a truth and reconciliation commission. Neither of these proposals promises early action against the military officers or their civilian cohorts. Our capacity to make a mess of fair practices developed abroad — such as a truth and reconciliation commission — is no secret.

But more important than punishing those responsible for the 1990 rigging is the need to make recurrence of that shameful episode impossible. That objective cannot be achieved without a national consensus on the inviolability of the principle that politicians will come into power and will be made to bow out only through a free, fair and democratic election. To what extent the SC decision will go in that direction will become clearer when the court’s detailed judgment is released.

For instance, it will be necessary to examine the grounds on which the SC concluded that the two generals in the dock “participated in the unlawful activities of the election cell in violation of the responsibilities of the army and ISI as institutions, which is an act of individuals but not of institutions represented by them, respectively” (emphasis added).

The short order is premised on the view that the chiefs of the army and the ISI in 1990 complied with the directives of the election cell and apparently ignores the possibility that they might have been in control of the election cell, reportedly headed by a retired general of the army, and the then president himself.

The SC was concerned only with the matters raised by Air Marshal Asghar Khan (retd), and therefore attention was focused on the election cell of 1990. But have military interventions always followed the directives of an election cell or a body like that? When generals Ayub Khan, Yahya Khan, Ziaul Haq and Pervez Musharraf subverted the constitution they did not share the credit for their actions with any cell outside the military establishment.

Electoral manipulation by the military did not start in 1990, it started in 1970, if not earlier, when Gen Yahya’s staff distributed money among politicians who could help in the election of a hung parliament. These tricks did become known but were ignored because the attempt to subvert the election process had failed.

There are other instances of the military’s alleged interference in democratic processes, and all of them in violation of the constitution, that must some day be probed.

These include the military’s role in the formation of the Islami Jamhoori Ittehad (IJI) in October 1988; its part in ensuring that the PPP, that had led in the election to the National Assembly on Nov 16, 1988, did not do equally well in the provincial polls three days later; in ‘persuading’ Ghulam Ishaq Khan to sack Benazir Bhutto’s government in August 1990; in giving marching orders to the heads of state and government in 1993; and in Gen Musharraf’s 2002 manoeuvre for allowing madressah-certificate holders to enter parliament.

It is also necessary to bury the argument that since Gen Beg had not taken an oath under the 1973 constitution he was free to take part in politics and ignore his constitutional obligations.

One is tempted to inquire whether this view is shared by other officers in the security forces. The oath Gen Beg took in 1952 did mention his obligation to remain faithful to the constitution. In any case the text of the oath reproduced by Gen Beg’s counsel before the SC is identical to the one the Quaid-i-Azam had read out to the army officers 64 years ago.

While addressing the officers of the Staff College at Quetta June 14, 1948, the Quaid said, “…during my talks with one or two very high-ranking officers I discovered that they did not know the implications of the oath taken by the troops of Pakistan. Of course, an oath is only a matter of form; what is more important is the true spirit and the heart”.

Declaring that the oath was, however, an important form he proceeded to refresh the army officers’ memory by reading out the prescribed oath and added: “I should like you to study the constitution which is in force in Pakistan at present and understand its true constitutional and legal implications, when you say that you will be faithful to the constitution of the dominion … I want you to remember … that the executive authority flows from the head of the government of Pakistan … and, therefore, any command or orders that come to you cannot come without the sanction of the executive head. This is the legal position.”

Perhaps the Quaid-i-Azam’s words have not yet become irrelevant to office holders in the state founded by him and it should still be fair to hope that they will respect their oaths in letter and spirit by following only the orders/directions issued by a constitutional authority. In trying to ensure this the SC may have taken up the most critical of the tasks it has ever undertaken.