ISLAMABAD: In its detailed verdict in the Asghar Khan case issued on Thursday, the Supreme Court held that unlawful orders by superior military officers or their failure to prevent unlawful actions by their subordinates were culpable.
Although the judgment dwelt at length on the role of the president, it did not specifically point finger at President Asif Ali Zardari.
It rejected a perception that the president could have issued an order to then army chief Gen Aslam Beg or ISI director general Lt-Gen (retd) Asad Durrani to dole out funds among politicians to prevent the PPP from winning the elections in 1990.
The president, the verdict said, did not have any operational authority with respect to the armed forces even after the Eight Amendment.
Similarly, the president has no authority to create an election cell or to manage in any manner or by giving directions to the armed forces or to civilians to make efforts to achieve desired results. “If any such illegal order is transmitted, the same is not worthy to be obeyed.”
In its short order issued on Oct 19, the apex court had directed the federal government to take necessary action under the Constitution and the law against Gen (retd) Aslam Beg and Lt-Gen (retd) Asad Durrani for their role in facilitating a group of politicians and political parties to ensure their success against their rivals in the 1990 elections.
Against the usual practice, the detailed judgment was released to the media by SC Registrar Dr Faqir Hussain himself. The practice, he explained, was to avoid confusion, ambiguity or out of context reporting.
“All officers who obey unlawful commands are individually liable and in the event of failure of the state authorities to take action, the rights of the people of Pakistan are to be upheld by the Supreme Court,” said the 141-page verdict authored by Chief Justice Iftikhar Muhammad Chaudhry.
It explained why the three-judge bench had ruled that the 1990 general elections were polluted by the dishing out of Rs140 million to a particular group of politicians only to deprive the people of being represented by people chosen by them.
“In upholding people’s right, this court can make all necessary directions to functionaries and institutions of the state, including the Election Commission of Pakistan, and the direction to investigate and prosecute,” it said.
Citing the July 31, 2009, Sindh High Court Bar Association case, the court reiterated that military rule was against the dignity, honour and glory of the nation achieved after sacrifices. “It is against the dignity and honour of each and every soldier of the armed forces of Pakistan, who is oath-bound to bear true faith and allegiance to Pakistan and uphold the Constitution,” the verdict said.
Within the prescribed parameters, it said, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war and subject to law, acting in aid of civil power when called upon to do so under the directions of the federal government.
In the course of the discharge of his duty, a soldier was, therefore, obligated to see that the Constitution was upheld, it was not abrogated, not subverted and not mutilated, the judgment said, adding that if a member of the armed forces did any of these he violated his oath and rendered himself liable to action under the Constitution and the law.
The judgment made it clear that vesting the supreme command in the president did not empower him, even after the Eight Amendment, to act in his discretion or upon his discretion. “Consequently, no question of a command arises, let alone a lawful command having been made by the president to make disbursement of money among favoured politicians.”
List of beneficiaries
The verdict also highlighted details and names of the recipients of the money as mentioned by Gen Asad Durrani in his affidavit filed on July 24, 1994:
NWFP (Khyber Pakhtunkhwa): Former chief minister Mir Afzal received Rs10 million.
PUNJAB: Nawaz Sharif received Rs3.5m, Lt-Gen (retd) Rafaqat Rs5.6m (for media), Jamaat-i-Islami Rs5m, Syeda Abida Hussain Rs1m, Altaf Hussain Qureshi and Mustafa Sadiq Rs0.5m and miscellaneous smaller groups Rs3.339m.
SINDH: Jatoi received Rs5m, former chief minister Jam Sadiq Rs5m, (Mohammad Khan) Junejo Rs2.5m, Pagara Rs2m, Maulana Salahuddin Rs0.3m and miscellaneous and smaller groups Rs5.4m.