Of a curious ‘gate’ and the Supreme Court

Originally appeared in Daily Times on Monday March 12, 2012 as my weekly BAAGHI

The Supreme Court of Pakistan, in an unprecedented move, has recently started hearing a long pending case, human rights petition no. HRC 19/1996, Air Marshal Asghar Khan Vs retired chief of army staff General Mirza Muhammad Aslam Beg, the former Inter Services Intelligence chief retired Lt-General Asad Durrani and Younis Habib of Habib Bank (later associated with Mehran Bank fraud scandal). The case was started in 1996, saw few hearings and then was put in the Supreme Court’s case-mortuary for 16 years.

One wonders why they call the scandal ‘Mehrangate’ as Mr Younas Habib, the central character of the case was in Habib Bank back in 1990. Probably because it is too hard to pronounce it as ISI-gate. The story of ISI-gate started on June 11, 1996 when Gen (R) Naseerullah Babar, former Prime Minister Benazir Bhutto’s Minister for Interior, while speaking on the floor of the house in the National Assembly, accused the ISI of defrauding the general elections by distributing money among the right wing politicians to make an election alliance and thus rig the elections to defeat the PPP. He alleged that former chief of army staff Gen (Retd) Mirza Aslam Beg withdrew an amount of Rs.140 million from Mehran Bank, and disbursed the amount through the ISI chief, Lt-General Asad Durrani to a selection of anti-PPP politicians and thus rig the elections in favour of the ISI-tailored IJI and Mian Nawaz Sharif.

Following this, the brave and indefatigable retired air marshal Asghar Khan wrote a letter to the then Chief Justice of Supreme Court, Justice Sajjad Ali Shah, who converted his letter with attached affidavit of Asad Durrani into a human rights petition under section 184(3). The petition was, however, stalled after Justice Shah’s unceremonious ouster in November 1997 when members of Nawaz Sharif’s Muslim League stormed the Supreme Court and later got the CJ ousted with the help of his Brother Judges. His successor, Justice Ajmal Mian remained completely mum over the case. So much so that his book A Judge Speaks Out does not even talk about Asghar Khan or his petition. All eight chief justices that followed him since then, never dared to open the case.

Meanwhile, the indomitable Asghar Khan kept writing letters to almost all of these incoming CJs including the current one, before and after his restoration. All his letters, pertinent to note here, kept going unanswered. The newly ‘freed’ judiciary made itself busy with more important things like NRO, NAB, sugar prices, appointment of grade 21 officers and the prime minister’s alleged contempt, etc. In these 16 years of the ISI-gate resting in the SC’s mortuary, prime witnesses and central characters of the scandal started disappearing. General Naseerullah Babar and Ghulam Ishaq Khan died, while the in-camera statements of General Asad Durrani and Naseerullah Babar given before the court in November 1997 got successfully demolished from the Supreme Court’s record.

Younas Habib, on March 9, categorically stated before the court that he was coerced into ‘arranging’ the money (through bank fraud), by President Ghulam Ishaq Khan and Army Chief Gen Mirza Aslam Beg. Of the Rs 1.48 billion that he ‘arranged’, around Rs 340 million were disbursed to different politicians, while rest of the money was deposited in different bank accounts belonging to ISI, whose numbers were provided by General Aslam Beg. General Beg, who denied the charges against him in Habib’s statement, had earlier submitted a statement in the court in 1997, whereby he had admitted disbursal of money to the politicians. As produced by veteran columnist Ardeshir Cowasjee in his August 19, 2007 column, some excerpts of General Beg’s statement are as follows:

“That in early September [1990], Mr Younis Habib then serving in the Habib Bank Ltd as Zonal Chief had called on the answering respondent [Beg] and informed him that he was under instructions from the President’s [Ghulam Ishaq] Election Cell to make available a sum of Rs.140 million for supporting the elections of 1990. He stated that he will be available to collect this amount through his own efforts from his community as donations and that he was under the instructions of the Election Cell to place this amount at the disposal of the Director-General, Inter Services Intelligence who would handle this amount as per instructions of the President’s Election Cell.”

“…That in 1990 the National Assembly was dissolved and the government of Mrs [Sic] Benazir Bhutto was dismissed. A caretaker government was formed to hold elections within 90 days. The then President, Mr Ghulam Ishaq Khan, had formed an Election Cell directly under him managed by Mr Roedad Khan/Mr Ijlal Haider Zaidi.”

“…That later on, the answering respondent was informed by the Director-General, Inter Services Intelligence that various accounts were opened and the amount of Rs.140 million was deposited in those accounts directly by Mr Younis Habib. Director-General, Inter Services Intelligence made arrangements to distribute these amounts amongst the politicians belonging to various political parties and persons as instructed by the Election Cell…”

“…That in 1975 Mr Zulfikar Ali Bhutto, the then prime minister, created a Political Cell within the ISI organization [Sic]. As a result, the ISI was made responsible to the chief executive, i.e. the prime minister/president for all matters of national and political intelligence…”

Here arise many interesting questions. Under what provision of law did Z. A. Bhutto create this infamous ‘political cell’ of ISI? Does it still operate? Does it have a legal cover? If not, should not the Supreme Court declare it null and void? What made the apex court stay quiet on this extremely important case for so long? Is this not an unconscionable negligence on the part of all pillars of the state including the judiciary? Will the apex court take this opportunity of self-correction? If Waheeda Shah’s “crime was more serious than the Karachi incident of killing a youth by Rangers” and memogate was more serious than all other pressing matters this country was facing, where does the Supreme Court place this case? Even after the resurrection of an ‘independent’ judiciary, why had the case to wait for three long years?

It is probably high time that the superior courts washed the stigma of being under the covert influence of the military establishment. If the judiciary takes this opportunity of mending the civil-military relations through showing the secret agencies (‘intelligence’ would be too much of an accusation against them) their place, defining their role and demarcation of the boundaries of their mandate, it would be writing and righting history. If, however, the judiciary loses this opportunity by giving the ISI a clean chit using the ‘advantage’ of loss of prime witnesses, who have been ‘lost’ due to the judiciary’s own negligence, it will go down in history as one-eyed justice.

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