The verdict by a nine-member bench headed by Supreme Court Chief Justice Iftikhar Muhammad Chaudhry that the apex court will investigate the controversial unsigned memo, which Mansoor Ijaz alleges was written by Pakistan’s former ambassador to America, Husain Haqqani, and which is being presented by the petitioner, PML-N chief Nawaz Sharif, as an attempt by the PPP-led government to subvert the military, has raised many eyebrows. The most immediate question that comes to mind is: should the honourable court have accepted the petitions and decided to investigate the matter by setting up a judicial commission of its own given that parliament is already seized of this matter, with a committee constituted for the said purpose? Clearly, many will consider this to be a signal to parliament that it is not the paramount institution in the country and that its authority and sovereignty is limited by situations such as memogate, where the apex court, acting on a petition to investigate the matter, can decide to direct a probe of its own.
One can then wonder that would India’s Supreme Court, or America’s for that matter, step in and take matters in its own hands if a similar situation were to occur in either of these countries? The factual answer to that is that nothing like this has really ever happened in either India or America but if one were to ask hypothetically, as in, what would their Supreme Court do, then the answer would in all likelihood be that the court would let the politicians decide the matter among themselves. Also, the situation in Pakistan is complicated by the fact that the government will now be investigated at the request of an opposition politician, in a case in which the military seems to have, made up its mind — given the affidavits filed by its chief and the head of the ISI, that the memo exists, that its intention was indeed to damage the armed forces and that this is not in the national interest. As the case now continues, and the judicial commission does its work, one can only hope that the various institutions of state will realise the boundaries that the Constitution sets for them and adheres to them. In this, constitutional mandates should be the guiding principle, not populism or a sense that the general public wants to see the government of the day out.
Published in The Express Tribune, December 31st, 2011.