ISLAMABAD - The Supreme Court judgment in Asghar Khan case on October 19, 2012 is being used by the government as leverage in neutralizing the perceived threat to the democratic dispensation, sources said on Tuesday.
Background discussions and interviews with constitutional experts revealed that the PPP-led ruling coalition which was bound to implement the landmark judgment that involves serious implications, is being used as safety valve to ensure perpetuation of governance system based on democracy.
Knowledgeable sources confided to TheNation that the ruling PPP that represents the federal government was not impregnating the judgment in line with its policy of national recompilation ostensibly with the view to ensure smooth democratic transition in the country through the upcoming general elections.
The sources believed that the federal government was not complying with the apex court directives to initiate inquiry thorough the FIA was delaying it purposely to what the sources in the ruling coalition say was aimed at neutralizing the armed forces by not initiating investigation against the former Chief of Army Staff and former DG ISI.
On the other hand, the sources aware of the legal and constitutional implications of the judgment believed that the federal government either the caretaker one and the future one that would come into being as result of the elections will have to implement it.
“The PPP-led ruling coalition seems petrified from the generals no matter they were serving or retired to implement the judgment,” remarked one of the leading legal brains of the main opposition party PML-N Senator Syed Zafar Ali Shah.
He was surprised why the ruling PPP that claims to be champion of democracy was shying away from ordering the investigation, adding this could be either because of any compromise or fear from the armed forces to take on the retire generals who have been declared guilty.
He was of the view that the complaint party in the case still had the legal option to move to the apex court for contempt of court proceedings against the federal government.
However, when approached the legal counsel of petitioner Asghar Khan, Salman Akram Raja, said that they were waiting for the elections to conclude because they do not want the political forces start blaming them for any attempt aimed at sabotaging the elections.
“I can file contempt of court petition for implementation of the judgment. But I have restrained myself for the elections to be held first”, Asghar Khan’s legal counsel and one of the leading constitutional lawyer of the country, Salman Raja told this scribe.
The federation has filed a review petition against the Asghar Khan judgment but that to the extent of President role in the politics: The 141 detailed judgment describe that President of Pakistan after entering into the office falls under the definition of a person who is in the “Service of Pakistan”, the Supreme Court noted this in the detailed judgment in Asghar Khan case.
The court noted that a President of Pakistan, in Parliamentary system of government, being head of the State represents the unity of the Republic under Article 41 of the Constitution. And as per the oath of his office in all circumstances, he will do right to all manner of people, according to law, without fear or favour, affection or ill will.
Thus, holder of office of President of Pakistan, violates the Constitution, if he fails to treat all manner of people equally and without favouring any set, according to law, and as such, creates/provides an occasion which may lead to an action against him under the Constitution and the Law.
Aslam Beg’s lawyers said that they have filed the review petition. General (retd) Aslam Beg in his petition, filed on November 21, 2012, contended that the findings and observations made against him by the Court are incorrect and his fundamental right to a fair trial as enshrined in Article 10A of the Constitution and right to due process of law has been infringed. The Supreme Court on November 22 returned former Army Chief Mirza Aslam Beg’s review petition.
On the second day (November 22, 2012) the Registrar officer had turned down the petition with objection that number of actual parties of the case has been increased besides change of counsel was also not requested in a proper manner. The court also objected over the quality of the contents of the review petition saying the petitioner has not singed on the annexed affidavit. The court also objected that Barrister Ali Zafar submitted the review petition instead of the actual counsel Akram Sheikh Advocate.
According to Barrister Ali Zafar that they after removing the objections had filed review petition and could be taken up end of this month. Aslam Beg has filed the petition under Article 188 of the Constitution on November 21, praying for expunging the observations and remarks given in the judgment against him regarding his involvement in the matter of furnishing and distributing funds to manipulate 1990 general election or taking instructions from the then President or giving instructions to the then DG ISI.
The apex court judgment announced on October 19, 2012 clearly stated that former President of Pakistan late Ghulam Ishaq Khan, ex-COAS General (retd) Aslam Baig, and ex-DG ISI General (retd) Asad Durrani acted in violation of the Constitution by facilitating a group of politicians and political parties. The FIA was ordered to take action against those politicians, who had taken money from the intelligence agencies during the 1990 elections.