A JUDGMENT based on a reading of history inevitably exposes the court to questions of selectivity and partiality. Such judgments are best avoided.
Yet, the Supreme Court of Pakistan has had to assess and judge history each time a democratic government has been terminated, whether through imposition of martial law or the use of the now defunct Article 58(2)(b) of the constitution.
For instance, in Zafar Ali Shah’s case (2000) regarding Gen Musharraf’s coup of 1999, the court was asked to accept the veracity of the version of events presented in support of the coup: that the coup was in fact a counter-coup necessitated by prime minister Nawaz Sharif’s recklessness in dismissing the army chief and diverting the aircraft that carried the chief and hundreds of other passengers from its original route. The overthrow of democratic authority was required to gain control over the aircraft’s flight path and save lives.
In rendering its judgment in support of the coup the court accepted the coup makers’ narration of events thereby creating a judicially sanctioned version of history.
Subsequent revelations and research have increasingly established that in fact the truth was close to the deposed prime minister’s stand that was rejected by the court.
The subversion of the constitutional order was plausibly a planned reaction to the prime minister’s annoyance over Kargil.
Similarly, revelations made during the Asghar Khan case, and material otherwise presented by historians, strongly suggest that the dismissal of the Benazir government in July 1990 had less to do with the breakdown of constitutional governance in the country, as asserted by president Ghulam Ishaq Khan, than the fact that a significant enough number of senior army officials had come to the conclusion that Mohtarma was a ‘security threat’.
It is also now increasingly clear that a major part of this threat perception was on account of her opposition to the Khalistan movement. The version of events accepted by the court in Khawaja Tariq Rahim’s case (2002) in upholding the dismissal of the PPP government now appears to be nothing more than a ruse.
During the course of the Asghar Khan case, and especially in the media since the Oct 19, 2012 order, Gen Aslam Beg (retd) has attempted to invoke an inverted version of history in his defence before the public at large.
He has tried to paint the late president Ghulam Ishaq Khan as a despot bent upon thwarting the constitutional entitlement of the Pakistani people and Benazir Bhutto to form a freely elected government. In his version of history, members of the armed forces, including him, had nothing to do with the political intrigue planned inside the presidency by a cell set up by their supreme commander. So he claims.
Gen Beg’s fable runs counter to the established understanding of Pakistan’s political history, based on historical evidence provided by any number of serious historians.
The idea of the then president, a timid bureaucrat who was a servile confidant of military rulers from Ayub to Zia, independently dictating to the army chief a political strategy against a politician considered a ‘security threat’ is laughable.
It is a historic fact that the funds disbursement operation of 1990 to thwart the PPP was a continuation of a sustained effort that had started when the ISI cobbled together the Islami Jamhoori Ittehad (IJI) prior to the 1988 elections.
Operation Jackal, aimed at pushing through a no-confidence vote against Benazir Bhutto’s government, followed in 1989. ISI operatives were involved. This is what Ms Bhutto was to recount in a later edition of her book, Daughter of the East.
It was after the failure of Operation Jackal that she sought to exercise some control over the ISI by appointing, for the first time in that organisation’s history, a retired rather than a serving general as director general.
Knowledgeable observers from Shuja Nawaz to Stephen Cohen have suggested that Lt Gen Kallu’s (retd) appointment as DG, ISI was resented by those who mattered. This was clearly one of the factors that precipitated the demise of the Bhutto government through deployment of Article 58(2)(b) in September 1990. It was the establishment at ‘work’, not the president alone.
Gen Beg has also mischievously invoked the figure of the late prime minister, Zulfiqar Ali Bhutto, as the person ultimately responsible for the plunder of public deposits placed with Habib Bank, then a nationalised bank, in September and October of 1990 in order to steal that year’s election from the PPP.
Repeated references have been made by Gen Beg to an alleged notification of 1975, never placed before the court over the 16-year hearing, which had created a political cell at Mr Bhutto’s behest within the ISI.
For Gen Beg, the 1975 notification, and none of the individual officers involved in the 1990 operation, was responsible for whatever happened. For him it is irrelevant that there is no basis for assuming that any notification of 1975 in fact sanctioned activity that could have justified the ISI’s institutional involvement, or that of officers acting individually, in the election manipulation of 1990.
Equally unimportant for him is the fact that even if, for the sake of argument, such a mandate was placed with the ISI its discharge would have remained unconstitutional.
Gen Beg’s contortions of history have reiterated the question that Pakistani courts have had to address on several occasions: to what extent should judgments be based on assessment of historical facts? The unavoidable answer appears to be: to the minimum extent necessary.
History can never justify violation of constitutional principle. In accepting one historical narrative over another, the court faces the risk of generating a court-sanctioned history that might come to be at odds with what is ultimately supported by a more complete examination of the facts by professional historians and, more importantly, is accepted by the people.
When this happens the court-accepted version of history, and the judgment based on such a version, assumes the aura of mere rhetoric generated for a particular end.
This is the fate that befell the judgment in Dosso’s case upholding the Ayub martial law and several others. An accumulation of such history-contingent judgments is ultimately inimical to the rule of law project.
The writer represented Air Marshal Asghar Khan (retd) in the Supreme Court of Pakistan.