To briefly recap the memogate issues, an article appeared in the foreign press in which one Mansoor Ijaz claimed to have handed over a memo dictated by Husain Haqqani — Pakistan’s then ambassador to the United States — to Admiral Mike Mullen, the then head of the US armed services. Mr Ijaz has further said that the memo was given to him on the basis that it represented the sentiments of Asif Ali Zardari, the president of Pakistan.
The memogate scandal — as this imbroglio has been dubbed — wound up in the Supreme Court courtesy of a petition filed directly by Mian Nawaz Sharif under Article 184(3) of the Constitution seeking an impartial probe into the alleged scandal. The petition was resisted by Husain Haqqani as well as the Federation of Pakistan mainly on the grounds that the Supreme Court lacked jurisdiction. On December 30, 2011, the Supreme Court rejected the maintainability arguments and instead issued a short order directing the formation of a three-member commission composed of the chief justices of the Sindh, Islamabad and Balochistan High Courts to “ascertain the origin, authenticity and purpose of creating/drafting” the alleged memo.
Asma Jahangir’s response to the short order has not held back any punches. According to news reports, she stated that this was one of the darkest days in the history of the judiciary. She further alleged that the nine judges of the Supreme Court were acting under the influence of the security establishment. Finally, she has announced her resignation as counsel for Husain Haqqani on the basis that she lacked all confidence in the judiciary.
Let me first begin by saying that Asma’s views should not be treated as constituting contempt of court. The Supreme Court of Pakistan now occupies a central role in Pakistan’s politics and it cannot both simultaneously seek to hold centre stage and demand that it be immune from all criticism. The standard response to this from the judges is that criticism must be moderate. I disagree; the very essence of criticism is that it must be allowed to be immoderate, otherwise there is too great a danger of it becoming stifled. I obviously disagree with Asma’s views but I certainly believe in her right to express them as freely as she wants.
Having said that, let us now go back to the underlying issue. So far as I understand, the fundamental argument advanced by Asma on behalf of Husain Haqqani was that the matter did not fall within the original jurisdiction of the Supreme Court under Article 184(3) (which provides that the court may directly hear a matter if it is a matter of public importance relating to the enforcement of fundamental rights.)
Let us look at those two requirements separately. So far as the issue of public importance is concerned, it was conceded by Asma that if the memo had actually been delivered on behalf of the president then the president would be liable to be impeached. Self-evidently, the authenticity of a document capable of justifying the impeachment of the president is a matter of public importance.
The tricky part, actually, is the fundamental rights prong. The problem here from Asma’s perspective is that this requirement has become so diluted through judicial activism that it has become essentially meaningless. Major issues of public importance thus regularly bypass normal channels and head directly to the Supreme Court. This is not a legal development which I particularly like. At the same time, it is a fact of life which has been established through any number of cases.
In this particular case, it is important to note two things. The first is that the existence, the contents and the delivery of the memo are not in dispute. Instead, the only dispute is whether Husain Haqqani had anything to do with the preparation of the memo or whether the memo is entirely a figment of Mr Ijaz’s imagination.
The second point is that the Commission set up by the Supreme Court cannot determine the authenticity of the memo. Instead, the most the Commission can do is investigate the authenticity of the memo and give its report. The conclusions in the Commission’s report may form the basis of criminal charges filed against Mr Haqqani, but those charges would still be adjudicated by a competent court after a full trial.
In short, what the Supreme Court has short-circuited is not the trial of Husain Haqqani but the investigation into his alleged crimes. Is this textbook procedure? No. Is it unprecedented? No.
Criticism of the Supreme Court’s order therefore boils down to the question of whether or not the court was justified in taking over investigation of the memo. Given the fact that the memo can realistically form the basis of a presidential impeachment — as conceded by Asma herself — I personally find the Supreme Court’s decision to try and ensure an investigation of the highest possible standards to be prima facie reasonable.
This, in turn, brings me to the final point. Asma Jahangir has summarily dismissed the Commission as not being independent. I do not think that the three honourable members of the commission deserve this treatment. Each of the three is a distinguished jurist with an impeccable reputation. In the absence of any specific, substantiated allegations of bias, they deserve better than to be castigated as establishment stooges merely because Madam Jahangir is unhappy with a particular decision.
Two years ago, when Asma Jahangir ran for president of the Supreme Court Bar, I proudly voted for her. I am still proud of her achievement as the first female president of the SCBA. I am not proud of her recent tantrum. As a senior and eminent lawyer, she owed a duty not only to her client but to the institution of the law. I think she failed that second duty.
Published in The Express Tribune, January 4th, 2012.
COMMENTS (18)
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Clearly the Memogate tussle between the civilian government and the military is political in nature. “National security” is often an all encompassing term applied to whatever happens to be in the military’s interest (and not necessarily what the larger public deems to be in Pakistan’s greater interest). Those that have argued that the Supreme Court can only hear the case if it “is a matter of public importance which relates to the enforcement of any of the fundamental rights ” appear to have a strong and valid argument as there is no issue involving fundamental rights whatsoever in the Memogate affair. It therefore follows that the nine judges have taken upon themselves to ignore the clear direction of Article 184(3) of the Constitution. On the strict basis of the law, which the courts themselves are legally bound to follow, it would appear that they have exceeded their authority. If one avoids falling into the trap emotional partisanship, it is clear that Asma Jahangir has just cause to take umbrage at the Supreme Court’s behavior.
The use word tantrum is sexist. I have heard Babar Awan mouth off at the courts and no one has ever said he's throwing a tantrum. It is dismissive of Asma Jehangir and suggests she lacks substance. No woman I have spoken to considers this to be gender neutral.
While writer has been quite elaborate in analyzing and giving his opinion on various aspects of the case but the details with which other points have been discussed appear lacking while justifying enforcement of fundamental rights in memo issue. Justice would demand that a clear and convincing case is made out for enforcement of fundamental right through invoking SC’s jurisdiction. Argument that because in other issues of public importance normal channels get bypassed regularly, memo case should also meet same treatment is terse to say the least. Conceding that normal hierarchy of judicial forum might not be followed for adjudication on other cases of public importance but memo case is not any other case. Political contours and motives are too apparent to be ignored, slightest of misjudgment would have strong fall out, casting aspersions on the prestige and moral authority of the supreme court, hence “political question doctrine” so appropriately cited by Asma Jahangir in her appeal.
Question is about precedence of fundamental right of due process and violation of fundamental right of life due to perceived threat to nation security over one or other. Question worth reflecting upon is whether Short-circuiting the investigation will have implication for possible trial or not. With the history that we have, we know that judges have toed political agendas and some people rightly fear existence of political agenda behind entire memo scandal. In this context, Asma Jahangir rightly points out difficulty of getting a fair trial if investigation is done by Supreme Court since an adverse opinion can be taken as message by lower judiciary. Conceding it as matter of public importance, she has demanded inquiry as will be done in any other case of ordinary individual; in case of criminal complaint through registration of FIR and trial in sessions courts and in case of civil case invoking parliaments power to impeach the president which will reveal if her client was complicit in any conspiracy.
At the end of the day justice should appear to be done which in memo scandal appears not to be the case.
In its zeal to visit retribution on wrongdoers from a particular political part the SC is not transparent in its adherence to the Law and Constitution. The decision is in a gray area and it is curious that nine SC judges had a unanimous view, as a layman I look forward to reading nine individually reasoned judgments. The damage a court can do to itself and to the state institutions by appearing to show bias or by over stepping the Law is not commensurate with the advantage of catching an individual felon.
I think CJ is correct but I can't Ignore Asma Jahangir criticism. She has valid points regarding fundamental rights violation in the name of national security. That is a burning issue people. Furthermore, respect of judiciary is not absolute. it is not like the respect for almighty. everybody has a right to criticize it and if one feels that the judgement passed was influenced in any way, one can certainly say so.
The Supreme Court of Pakistan now occupies a central role in Pakistan’s politics......How can this be justified in any sensible society...if an institution like this is involved in politics when army already is....then 'tantrums' of Ms Asma are in order I guess
Charges leveled by Asma Sahiba accuse the judiciary of being influenced by establishment, thus her resignation. Provided this is true and she strongly believes in her position then her resignation does make good, ethical sense. From her clients perspective her resignation and public denouncement puts the commission and judiciary in the spot light, may be it doesn't make any difference but at least she has created that element of doubt.
This was her opportunity to prove her chops as a lawyer and yet she fell back to make tired allegations instead of making a solid case for the acquittal of her client. I think, at the point, he is most capable for making an argument for his innocence. He is certainly a sharp and eloquent man if nothing else.
In the past the Supreme Court was described as impotent against corruption and now it is leaning to the right against it. You cannot please eveyone all the time. But you can DO WHAT IS RIGHT ALL THE TIME !
Abandoning your client at this junction is an act not worthy of Asma Jehangir. No matter how high the odds you fight on and try to provide the best advice given the circumstances.
She was just exercising her professional right to defend her client..even though client may be on the wrong side of law. As far as duty towards institution of law goes, chief justice did not set any high standards in that regard when he publicly castigated the president for not replying to the notice. He should have atleast respected the institution of president before making such comments. If CJP has stooped low , public will follow and asma is no different.
PPP jiyalas will go to any length to support their masters. If they can murder people on this basis, this is much easier.
The Supreme Court of Pakistan now occupies a central role in Pakistan’s politics...... thanks for writing this.... and now can appoint PMs and CMs. authority given to judges to appoint judges means that supreme court will have same thought process. it will be never diverse and judges will always have same opinion ......
Is this textbook procedure? yes. if case is against PPP.
Liked the way you explained it and though I know very little about the law I do feel that Asma Jahangir 'over did it', with her statements after the Superior courts ruling.
I agree with you. She is a superb human rights activist and I salute to her courage and persistence against all odds. But one never mixes their political activation with their profession. That was my first and gut reaction when I read her statement in this newspaper.