THE revival of the Asghar Khan case, to be taken up by a three-member Supreme Court bench headed by Chief Justice Iftikhar Chaudhry today, has attracted much attention nationally. But while the subject matter may be high-octane and may yield embarrassing headlines for the army and certain politicians, the petition before the SC is unlikely to become a transformative moment in the history of civil-military relations. For one, the petition does not seek any specific punishment against Gen Aslam Beg (retd), Gen Asad Durrani (retd) or Younis Habib.
At best there will be a declaratory judgment along the lines of the one that said the Emergency declared by Gen Musharraf in 2007 was unconstitutional. Those expecting that jail terms or other punishments will be awarded are likely to be disappointed.
For another, the politicians and others implicated of taking money from the army/ISI aren’t respondents in the petition and so direct action against them is unlikely to occur.
Nevertheless, there is an opportunity before the court to underline or lay down important rules in how the business of politics ought to be conducted and how the state is run. At the heart of the ISI-buying-politicians-to-rig-elections story are two issues:
what constitutes a lawful command and how to regulate campaign finance. Aslam Beg’s defence for authorising the doling out of millions of rupees to politicians was that he did so on the orders of then president Ghulam Ishaq Khan. If true, the question really is, when a command is overtly unconstitutional and illegal, ought an officer of the armed forces do what he is commanded and simply hide behind the defence that a superior ordered him to do so? While the chain of command in the armed forces is uniquely sacrosanct, it cannot and must not trump all other principles in every instance. A judgment by the SC elucidating on the boundaries of what an officer is lawfully required to do under instruction from a superior would be unique in Pakistan’s history and would arguably strengthen the armed forces in the performance of their core duty.
what constitutes a lawful command and how to regulate campaign finance. Aslam Beg’s defence for authorising the doling out of millions of rupees to politicians was that he did so on the orders of then president Ghulam Ishaq Khan. If true, the question really is, when a command is overtly unconstitutional and illegal, ought an officer of the armed forces do what he is commanded and simply hide behind the defence that a superior ordered him to do so? While the chain of command in the armed forces is uniquely sacrosanct, it cannot and must not trump all other principles in every instance. A judgment by the SC elucidating on the boundaries of what an officer is lawfully required to do under instruction from a superior would be unique in Pakistan’s history and would arguably strengthen the armed forces in the performance of their core duty.
The other issue at stake is that of campaign finance. With elections scheduled to be held in the next year or so, the SC could use the Asghar Khan case to lay down fresh guidelines on how campaigns are financed. At the moment it’s a bit of a free for fall, despite legal rules and limits, and even Imran Khan, the self-styled ‘clean’ politician, avoids discussing the matter. Ultimately, though, much will depend on how seriously the SC takes up the case.
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