Asghar Khan case detailed judgement

The Supreme Court (SC) has issued its detailed judgement in the Asghar Khan case. Such a major pronouncement with implications not only for the past misdemeanours identified in the course of the proceedings but also for the future cannot be done justice to in this space in one go. However, the main findings of the judgement offer food for thought. The court has found that former president Ghulam Ishaq Khan, former COAS General Aslam Beg, and former ISI chief General Asad Durrani had rigged the 1990 elections against the PPP. All three were held to have violated the constitution. This pronouncement by the SC does not automatically or in and by itself imply that the three top officials named have been found ‘guilty’ in the sense of being punishable under the law. The conclusion is more in the nature of an indicative instruction to the government to proceed to try these individuals to determine their guilt through due process and beyond a shadow of doubt, with appropriate punishment to follow. That constitutes a severe test of will and political judgement for the incumbent government. One of the protagonists is no longer in this world (Ghulam Ishaq Khan) and the other two have been high military officials. For the late president, a trial in the ordinary meaning of the word is not possible, but were the other two to be put in the dock, it would perhaps result in strictures against the ex-president that would mar his legacy and repute. The trial of the two generals could bring Article 6 into play, with the reaction or response of the military establishment a matter of conjecture at this stage. Even more interesting, the SC has declared that an illegal order cannot be obeyed nor made a justification for patently illegal acts. It is ironic that about six decades after the Nuremberg trials that declared the plea of Nazis accused of atrocities that they were simply obeying orders unacceptable as a defence, our jurisprudence has found the opportunity to reiterate this by now well established principle of law. The detailed judgement underlines the finding of the SC’s short order of October 19 that the president’s office must be above, and refrain from, politics. The judgement also makes a surprising declaration that the office of president is in the service of Pakistan, implying that anyone occupying such office would have to wait two years after leaving office before they could stand for elective office. Strange that an office that is itself elected should be placed in this category while elected officials such as Speakers, ministers and sundry others are excluded from this rule. It is entirely possible that this declaration will face a legal challenge. Any political cell in the presidency has been declared illegal. The list of alleged recipients of funds from the ISI includes many past and current political heavyweights. The SC has recommended that proceedings be initiated against them and the banker Yunus Habib, and the money received, if proved, be recovered along with interest. The matter of the alleged Rs 270 million doled out from IB funds to topple the Punjab government in 2008-09 has been delinked from the main body of the Asghar Khan case and notices issued separately to media and the Attorney General among others for two weeks from now. A more detailed assessment of the judgement and its implications and fallout will have to wait for a more careful reading of the text of the judgement. But in passing it is noteworthy that in an unprecedented move, the Registrar of the SC briefed the media on the detailed judgement, which has raised eyebrows. The justification presented for this ‘new’ role for the Registrar is that it was meant to avoid ambiguity or misunderstandings regarding the judgement. Fine, but is it the Registrar’s job to ensure a SC judgement is properly understood by all and sundry? Care should be taken not to set precedents that could give rise to unexpected embarrassments in future.