A FEW minutes before the Supreme Court reassembled to announce its short order in Asghar Khan’s case, Gen Durrani (retd), sitting next to me in the courtroom, muttered audibly, “I didn’t think I would end this way”. He looked ordinary and frail. Was he ever anything more? I wondered.

Gen Durrani then rose from his seat to leave. “I can’t stay any longer, come by one of these days, we’ll talk,” he said to me, the person who had spent months demanding that he and Gen Beg (retd) be prosecuted for subversion of the constitution: they had conspired to usurp the will of the people by stealing the election of 1990.

Throughout these months Gen Durrani had repeatedly said to me during breaks: “We considered our actions sacred. Whatever I did, I did out of conviction not merely because I was ordered by the army chief to do so. Now I will hide nothing.”

A few days earlier, Brig Hamid Saeed (retd), the then MI head in Sindh, who had admitted to personally handing over money to various politicians on instructions received from Gen Durrani, had filed a statement in court in which he had described his reasons for considering Mohtarma Benazir Bhutto a security threat. He remained unrepentant.

In my concluding rebuttal, before Bench One retired to compose its short order, I had asked the court to hand down a judgment that would not allow a future commander of the 111 Brigade, or any other adventurer, to hide behind the defence of having been commanded by a superior to subvert the constitution: “Any commander who surrounds the prime minister’s house or that of the chief justice should be left in no doubt that no notion of the ‘larger national interest’ will ultimately protect him from disgrace and prosecution.”

Air Marshal Asghar Khan (retd) and I had agreed that this was a case primarily about the army officers who had acted with scant regard for their role prescribed by the constitution. The prosecution and conviction of a bunch of politicians could be pursued once the liability of the generals had been determined.

When Bench One reassembled at 1.30pm on Friday, Oct 19, the courtroom was almost empty. Neither Gen Beg nor his counsel had turned up. The attorney general had earlier in the day spent much time arguing against the imposition of any restriction on the president’s political role. In my view this was unwise as it had forced the court into opining about the correctness or otherwise of the attorney general’s argument.

I had earlier argued that the case did not directly raise the issue of the president’s formal political role or authority as the supreme commander of the armed forces since president Ghulam Ishaq Khan could not be said to have exercised any formal authority in allegedly seeking to subvert the general election of 1990.

There was indeed no institutional record of him having issued any orders as the president. A verbal instigation to violate the constitution did not implicate the question of the presidency’s formal political or military role. A clear crime and exercise of authority in the bona fide, but mistaken, belief that the action being taken was within the president’s constitutional power were two entirely different matters.

The attorney general had not returned to hear the order. Air Marshal Asghar Khan, his equally resolute wife and the late Omar Asghar’s son, Mustafa, sat to my left. A small number of journalists sat in the two extremities of the courtroom. One could not help noticing the sharp contrast to the jam-packed courtroom that had awaited the short order in the NRO case, the other ‘historic’ case in which I was involved as the petitioner Dr Mubashir’s counsel.

The issues in Asghar Khan’s case were of far greater structural importance. The NRO case was about parity between different classes of civilians and the recovery from politicians of the proceeds of alleged corruption.

Despite the court’s clear declaration that it did not propose to say anything about the armed forces or the ISI as institutions it was clear that the judgment in Asghar Khan’s case would have profound implications, formal as well as informal, for the civil-military imbalance that has plagued the state throughout its history.

When the court had asked me, some months ago, if I wanted notices issued to the accused politicians I had answered in the negative. This was a well-considered decision made with the air marshal’s concurrence.

The case had already stagnated for 16 years. Involving the politicians would result in delaying the more important judgment regarding the role of the army officers that could be given on the basis of the material already on the file of the court.

However, once it was clear to the media and the political classes that these proceedings would not result in any politician being immediately convicted their interest seemed to wane. Hence the empty courtroom.

Gen Beg and Gen Durrani took stands before the Supreme Court that were divergent in significant aspects. Gen Beg’s position was that the operation to stop the PPP was a matter between the president and the director general ISI, Gen Durrani. His role was one of an onlooker who merely ordered probity in the distribution of funds through the maintenance of meticulous accounts.

Nevertheless, almost Rs80m taken from a nationalised bank remain unaccounted for. I had argued that even if Gen Beg’s version is accepted, it was his responsibility to prevent the participation of his subordinates in the subversion of the constitution. His personal liability arose from the doctrine of ‘command responsibility’. His failure to take action made him culpable.

Gen Durrani, on the other hand, described Gen Beg as the man who actively directed the ‘disgraceful business’. In a statement before the Supreme Court, Gen Durrani stated that while the ISI is formally under the prime minister his real ‘boss’ as the DG was the army chief.

The Supreme Court’s order of Oct 19 has held both of them liable to be acted against under the constitution and the law. None of the defences taken — the operation was commanded by a superior, the army chief was not actively involved and hence could not be held liable or that the action was justified by national interest — has carried any weight.

The writer represented Air Marshal Asghar Khan (retd) in the Supreme Court of Pakistan.