SC verdict on memogate

Published: December 31, 2011
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The verdict in memogate case is a reminder in the constitutional limits of institutions.

The verdict in memogate case is a reminder in the constitutional limits of institutions.

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.

 

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Reader Comments (5)

  • Mirza
    Dec 31, 2011 - 5:16AM

    Thanks for the nice editorial. In the entire history of Pakistan, the SC judges have never gone against the army rule, breaking of constitution and overthrow of elected govts. The current PCO SC is no exception. It has to hop to the Memo scandal as the ISI and army Chief were also rushing to the double agent. The irony is for the right-wingers everything American is bad except the shady, shifty double agent from America! This American has been writing against the ISI, army and Pakistan but that is forgiven and forgotten by the rightwing, army and judges. Nothing is sacred and credible in the US except this double agent. For PCO Chief Justice the decorated US generals in particular are not credible but this lonely star witness is. Last but not the least, there are hardly any examples in the world where all the judges think and decide exactly alike!

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  • Jp
    Dec 31, 2011 - 11:41AM

    This happens only in Pakistan where the armed forces are treated like higher than the masters which has appointed them & sole authority of nationalism/patriotism even though it has failed miserably when it was needed the most. Its policy has brought Baloochistan to the 1971 like situation where people are completely alienated. Now the judiciary is afraid of displeasing this super constitutional body which is neither answerable to the people nor to the constitution of the country

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  • Saleem
    Dec 31, 2011 - 11:33PM

    In your editorial you have suggested that courts should let the politicians decide the matter among themselves is pretty naïve. Before quoting other countries you must know little more about them. For example, Watergate scandal, was not so scandalous and happened in a matured democratic country, USA. When facts came out in open then Nixon, despite having “peoples mandate” resigned in shame. This government has seen many scandals in its tenure but has no shame to react to them and do anything proclaiming that they have people’s mandate. Though memogate is lot more scandalous than Watergate do you still think that if facts come out then this government will resign in shame?

    In your editorial you should have given your opinion whether writing a memo like this to a foreign government for help against one of its own institution is treason or not. Once that is defined then it would establish scope of the problem. Also do you think Pakistani politicians are mature enough to handle scandal of this magnitude when staes are so high?

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  • Javed
    Jan 1, 2012 - 1:24AM

    @Saleem:
    The Watergate scandal was investigated by the US Senate and the House of Representatives and not by the Court. He resigned before he could be impeached by the House of Representatives. The Court entered the fry only to declare that the TAPES had to be handed over to the Govt. Investigators. It was not a part of the impeachment process.

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  • mansoon
    Jan 1, 2012 - 1:47AM

    pakistani courts are again on to their old ways of dancing with the army and dont forget judicial murder of bhutto.
    but hats of to zardari who is fighting it out fully knowing the outcome of these judicial drama.

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