We never learn from history – 6
By Ardeshir Cowasjee
IN this God-given, Jinnah-founded country of ours it is safe to assume that the majority of those who manage to be elected to our assemblies, or appointed to positions of power, or to squirm their way into politics are shrewd enough to realise that they are actually good for nothing other than the assumption of power and the acquisition therefrom of pelf.
Sixty years ago (short of five days) Mohammad Ali Jinnah clearly told his fellow countrymen that the first thing his country must have is law and order so that the lives, properties and religious beliefs of its citizens are protected. He also stressed the fact that religion is not the business of the state. We are slowly, very slowly, trying to get there.
One example : During his second stint in power with his massive ‘mandate’, Prime Minister Nawaz Sharif wished to rid himself of an awkward Chief Justice of Pakistan, Sajjad Ali Shah, so he consulted his confidantes. On November 5, 1997, as recounts Gohar Ayub Khan in his recently published book ‘Glimpses into the Corridors of Power’, Nawaz “asked me to accompany him to the PM’s House. In the car, the PM put his hand on my knee and said, ‘Gohar Sahib, show me the way to arrest the Chief Justice and keep him in jail for a night’.” Naturally, Gohar was ‘shocked’ and advised him against even thinking about it.
But deep-thinking Nawaz thought further, and on November 27 of that same year he had his goons physically storm the Supreme Court of Pakistan while Sajjad Ali Shah was hearing a contempt case brought against him (Nawaz) and then proceeded to engineer, with the help of Sajjad’s brother judges, the successful removal of their Chief Justice.
Ten years later, Top Gun President General Pervez Musharraf also wished to rid himself of a Chief Justice of Pakistan who had the potential to prove awkward. But this time he chose the legal route. The Supreme Court held firm and he lost. We must assume this to be progress.Now to the ‘core issue’ of this column, an issue of much import that has been kept hanging, whether because of the reluctance of the judges to take it up in view of its subject, or whether it has been ignored on the ‘advice’ of the government. Things have now changed, they are different. The Supreme Court has been empowered by the people.
In 1996 a human rights petition was filed by Air Marshal (rtd) Asghar Khan in the Supreme Court of Pakistan (HRC 19/96) against the retired chief of army staff General Mirza Muhammad Aslam Beg, the former Inter Services Intelligence chief retired Lt-General Asad Durrani and Younis Habib of Habib and Mehran Banks, relating to the disbursement of public money and its misuse for political purposes.
The case was initiated by the Air Marshal after Prime Minister Benazir Bhutto’s Interior Minister, another retired general, Nasirullah Babar, on June 11, 1996, announced on the floor of the National Assembly that the former COAS, 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 ISI 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.
Shortly thereafter Justice Shah received a letter from Air Marshal (retd) Asghar Khan, copied to the then COAS General Jehangir Karamat, drawing his attention to the matter. On the basis of this letter, an 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 Younas 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 insofar 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. The Court, under Chief Justice Sajjad Ali Shah, 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, 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’s lawyer, Habib Wahab ul 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 they were on November 19 and 20.
Seven days later, on November 27, 1997, the Supreme Court was stormed by Nawaz’s goons and shortly thereafter Chief Justice Sajjad Ali Shah was sent home. We heard no more about this petition, filed, for once, truly in the national interest, until The Herald, the monthly magazine of this newspaper’s group, in its issue of April 2000 published a report by Mubasshir Zaidi (‘Forging democracy’) which made mention of it : “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.”
Almost three years later, after a deafening silence from the Court, on August 10, 2002, Asghar Khan addressed a letter to the then Chief Justice of Pakistan, Sheikh Riaz Ahmed, its subject “HRC No.19/96, Air Marshal (R) Mohammad Asghar Khan versus General (R) Mirza Aslam Beg.” It read : “I should like to draw you attention to my letter MAK/12/5 addressed to your predecessor on 8 April, 2000, requesting that the above case may please be reopened. I have received no reply to this letter and elections are due on 10 October, 2002.
Many of the people who are guilty of misconduct will, if the case is not heard, be taking part in the elections and the purpose of those elections will thus be defeated. I would request an early hearing and decision in this case.”
Again, nothing happened. The case has remained morgued amidst thousands of pending cases lying with the Supreme Court of Pakistan.
Now, in this election year of 2007, and before this round of ‘free and fair’ elections takes place, before the ISI and its sister agencies once more get into the act, and before the main actors depart from this world, will the reinstated Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, take up the Retired Air Marshal’s petition and see it to its finality. It is of vital importance to the future political scenario as it should incriminate and disqualify many an aspiring public representative hoping to lord it over this nation yet again.
And will the stalwarts of the Supreme Court Bar Association please help the retired Air Marshal – he needs legal representation.