---- Supreme Court orders the government to take legal action against former army chief Beg and former ISI chief Durrani
---- SC finds election held in 1990 was corrupted by a special 'election cell' formed by Ishaq and supported by Beg and Durrani
---- The court also finds that the cell had doled out public money to candidates in order to help bring Ishaq's party into power
The Supreme Court directed the federal government to take action against retired Army Chief General Aslam Beg and former Director General Inter Service Intelligence (ISI) Lieutenant General Asad Durrani for violating the Constitution; and to the Federal Investigation Agency (FIA) to probe the recipient of the funds with the objective of taking legal action against them, including Younus Habib.
A three-judge bench headed by Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Jawwad S. Khawaja and Justice Khiliji Arif Hussain announced the order after it heard the petition of Air Marshal Asghar Khan who had accused the ISI of distributing Rs 140 million to manipulate the 1990 general election. Referring to the role of General Aslam Beg and Lieutenant General Asad Durrani, the bench said they had violated the Constitution and the law by funding politicians in the 1990 general election.
Directing the FIA to take legal action against politicians who received funds, the court ruled, "Proceedings shall also be launched against the persons specified hereinabove for affecting the recovery of sums received by them with profit thereon by initiating civil proceedings, according to law".
The Chief Justice said: "An amount of Rs 80 million, statedly, had been deposited in Account No 313 titled Survey and Construction Group Karachi, maintained by MI, therefore, this amount with profit shall be transferred to Habib Bank Ltd. if the liability of HBL has not been adjusted so far, otherwise, the same may be deposited in the treasury account of Government of Pakistan".
According to the order, the late President Ghulam Ishaq Khan had created an "election cell" in the presidency which had rigged the 1990 polls as it functioned to provide financial assistance to favoured candidates in order to achieve the desired result by polluting the election process.
"The President of Pakistan, Chief of Army Staff, DG ISI or their subordinates certainly are not supposed to create an Election Cell or to support a political party/group of political parties, because if they do so, the citizens would fail to elect their representatives in an honest, fair and free process of election, and their actions would negate the constitutional mandate on the subject," the order stated.
For abolishing any Election Cell/Political Cell in the Presidency or the ISI or the MI or within their formations, the order said, "Any Election Cell/Political Cell in Presidency or ISI or MI or within their formations shall be abolished immediately and any letter/notification to the extent of creating any such Cell/Department (by any name whatsoever, explained herein, shall stand cancelled forthwith".
Appreciating the Armed Forces' sacrifices to repel any external or internal aggression, the order noted that the Armed Forces are deeply respected by the nation, but the ISI, the MI or any other Agency such as the IB have no role to play in the political affairs of the country such as formation or destabilisation of government, or interfering in the holding of honest, free and fair elections by Election Commission of Pakistan.
"Involvement of the officers/members of secret agencies ISI, MI, IB, etc, in unlawful activities, individually or collectively calls for strict action being violative of oath of their offices, and if involved, they are liable to be dealt with under the Constitution and the law," the order maintained.
The order said that the then President, Ishaq Khan, the then army chief, General Aslam Beg and the then ISI chief, Lieutenant General Durrani secured funds from Younus Habib to facilitate a group of politicians to influence the 1990 general election, adding that such act of both the two brought a bad name to Pakistan and its armed forces/secret agencies in the eyes of the nation.
Asghar Khan's attorney Salman Akram Raja told the media that the court specifically named Aslam Beg and Asad Durrani for violating the Constitution and directed authorities to probe all politicians linked to the scandal. However, the ECP could also act against politicians. Commenting over the short verdict of the court, Raja said that it was for the first time in the history of the country that an expressive decision had been made by the apex court against the senior officers of army.
Earlier, during the course of hearing, Attorney General for Pakistan Irfan Qadir argued that a deceased president could not be put on trial. He added that Justice Jawwad S Khawaja observed the previous day that the PPP government had failed to initiate any investigation or a trial against those involved in the rigging of 1990 general election.
"I would take strong exception to these remarks of Justice Jawwad S. Khawaja - the matter remained sub judice for the last more than 15 years in the Supreme Court," the AGP contended. The AGP also accused the judiciary of allowing military interventions and taking oath under the PCO while allowing a General to amend the Constitution, adding that the responsibility of not initiating action in the instant matter was to a great extent on the judges/chief justices of the apex court and not on the present government.
Qadir further said that the apex court on many occasions provided legal cover to extra-constitutional measures and parliament always saved the Supreme Court from embarrassment whereas Supreme Court though its decisions undermined the parliament.
"Every violation of fundamental rights would not attract Article 6 of the Constitution but any attempt to derail democracy will certainly attract Article 6 thereof," AGP said. The Chief Justice observed that Constitution regulated president's office as it is the symbol of the federation, adding that it was not the duty of a president to influence elections. "Only an unbiased president can be a symbol of federation," the Chief Justice remarked.
Concluding his arguments, the AGP submitted: "It has taken sixteen long years and this case is still lingering on - who are the persons responsible for the delay? The matter should be looked into and a commission should be appointed in this regard so that the nation should know as to who were responsible for this delay."
Agencies add: It was a landmark ruling from the Supreme Court 16 years after retired air marshal Asghar Khan filed a case, accusing the Inter-Services Intelligence (ISI) agency of doling out money to a group of politicians. Pakistan has had three bloodless military coups in its history and been ruled by four military rulers.
The late former president Ghulam Ishaq Khan, retired army chief Aslam Beg and retired ISI chief Asad Durrani "acted in violation of the constitution by facilitating a group of politicians and political parties", chief justice Iftikhar Muhammad Chaudhry said. Khan died in 2006. He became president in 1988 upon the mysterious death in a plane crash of military dictator Zia-ul-Haq. Beg retired as army chief in 1991 and Durrani from the ISI in 1993.
The top judge also said that legal proceedings should be initiated against the politicians, who allegedly received donations to spend on the 1990 general election campaign. The identities of the politicians in question were not named in the court order.
Chaudhry ordered Pakistan's Federal Investigation Agency to initiate a "transparent investigation against all of them and that if evidence was sufficient, then that the men should face trial". Analyst Imtiaz Gul said the court order was a step towards doing away with "the impression the judiciary has given so far of being soft towards the military establishment."
"The order underscores the assertiveness of the judiciary which stands determined not to allow what it says is any illegal, unauthorised action by any state organ," he said. It was also not clear how the Supreme Court planned to ensure the military would abide by its decision. It called on the federal government to take necessary steps under the constitution against retired generals named in the case.
Pakistan's government has little sway over generals. The military is one of the biggest in the world and has vast financial might, to the tune of an $11 billion, according to some estimates. Successive Pakistani governments have been too preoccupied by their often strained relationship with the military to tackle a range of challenges plaguing the South Asian nation, from chronic power cuts to poverty to a flawed education system.
AGGRESSIVE PURSUIT Chaudhry has made a name for himself by going after some of the most powerful figures in Pakistan and raising sensitive issues such as the disappearance of political activists and insurgents who have angered the military.
In June, Chaudhry made his boldest move by disqualifying prime minister Yousuf Raza Gilani as punishment for his repeated refusal to obey court orders to re-activate a corruption case against President Asif Ali Zardari. The defiant chief justice is facing a growing backlash from those who fear his aggressiveness could undermine Pakistan's young democracy.
Appointed in 2005, Chaudhry confronted then military leader Pervez Musharraf, who removed him from office after he opposed plans to extend the general's term in office. Zardari's government was forced to reinstate him after an outpouring of street protests by lawyers. Since then, he has portrayed himself as a champion of justice in a country where the elite is seen as self-serving while the military enjoys vast privileges.