Purely legally speaking, she is wrong. Politically, she is right. That’s the dilemma. What she asked the Court to do is to look at the issue beyond the strictly legal. The Court wants to remain grounded in the legal. There is a memo, prima facie; its contents are quite explosive; it was also delivered. There is no dispute on these counts. The issues of contention are who wrote this memo, or on whose direction it was written and whether it was delivered to a foreign government for the purposes for which it was created/drafted.
The SC thinks it is important to “ascertain the origin, authenticity and purpose” of this memo because if it is accepted that its origin from the presidency, given the contents, could plausibly lead to impeachment proceedings against the president then the petition before the SC is not only maintainable but the Court is right in ordering the formation of a three-member commission to get to the bottom of this.
The problem is that if this memo can actually be traced back to the presidency then that is a major setback to the civilians. Those who do not like President Asif Ali Zardari may find that satisfying but the problem with that approach is that this issue goes beyond personal likes and dislikes. If he gets nailed, the civilians lose. None of us should want that.
Ms Jahangir, in her criticism of the SC, has taken no prisoners. But she has asked the Court to do something more than legal, which it cannot. The SC knows that the other party, the military, is relying on the legal — so far. Of course that is not because the military is suddenly headed by Mother Teresa but because it realises the limitations of exercising the nuclear option. Even so, its no-first-use policy doesn’t mean it cannot ride out a first strike and launch its own second strike.
So, if the military is relying on the legal, the Court shall stick to the legal too instead of going up the escalation ladder as Ms Jahangir clearly wanted the judges to do. The petition was not filed by the military but the government’s political opposition, and while the government is agitated, the military says the issue is sub judice and it is satisfied with the legal-constitutional route.
The question at this stage is: if the memo is the product of Mansoor Ijaz’s heat-oppressed brain, why should the government be so nervous about the formation of this commission? In fact, far from opposing the decision, it should welcome it so the issue can be rested.
But what if the memo did happen in the way that Mr Ijaz says it did and the judicial commission ends up corroborating his account?
Then we have a problem. And the problem is not just that this government would be tarnished but we will have the bigger problem of the civilians losing out to the military without the latter having mounted a coup.
Not only that, and this is where the biggest irony of this issue resides, the initiator of all this, through his petition, would have been Mian Nawaz Sharif, the man who opposed the military to the point where the military deemed him a bigger threat and opted for holding its nose and working with the current government. Mian Sahib, in trying to pull his political opponent down, will have ended up strengthening the very organisation that he never tires of holding responsible for derailing democracy. His assertion that he will oppose with all his might any extra-constitutional attempt by the military is naive because the military has no plans of doing that.
That civilians are superior is the normative belief. But while civilians have the absolute right to be wrong, they don’t have the right to be stupid. Reality never overlaps a normative belief. How superior the civilians are depends on how effective they are and effectiveness is a function of taking responsibility, not Byzantine intrigue.
And the military? One waits for the day when they will begin to think strategically — i.e., that the biggest threat to Pakistan is the civil-military fault line. That while they may bludgeon this government with the memo hammer, their victory will lead to strategic defeat for this country. They need to find out ‘why’ this has happened (if it did), not who did it. And the why will lead them to themselves.
Published in The Express Tribune, January 4th, 2012.
COMMENTS (28)
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..........suppose the memo is true and the govt is booted out! would this act reduce it's vote bank in sindh and south punjab? or after the govt is booted out would the political importance of sindh and balochistan get reduced? i think the ppp will get more entrenched in the south of the country and the memo in essence would again deprive the country of any chance of strategic understanding bw north and south of the country, or bw the civilian and the military sides of the game! in that eventuality, the country will continue to be mired in political instability, as in the last 64 years, which when combined to the tensions on our borders, will deprive us of any remote chance of economic prosperity in future. we will continue to be hobbled in our tracks without moving forward or backward till the gun of the time is placed against our temple down the road, say after 10 years!
It should not be construed to a civilian defeat if the law prevails. The same law and the institutions upholding the constitution should be able to strike balance between other state institutions. People need to become mature enough to side by what is just. Military needs to understand it has a legal recourse to things and so does the political setup to prevent any unforeseen.
@Ali Tanoli
dont have guts or we are slave minded peoples????
Why select one, when you can be both.
@Abhi I agreed its a sad and shame for all three countries Syria, Iran, & Turkey how they treat Kurd peoples and even in iraq also they were butchered and its sad indeed and i all ways wonder why we still following those british lines when they created these so called countries why we dont have some one brave and intelegent enough who can solve these problems like kurdistan (which was made it because Salahudin was kurd and gives freedom to holy land palestine) so it was punishmint for kurd peoples by british) and also kashmir we indians dont have guts or we are slave minded peoples????
In the first place once the parliamentary commission was appointed, the petition that enquiry should be held became infractuous. Secondly, two commissions for a same inquiry will create confusion. Thirdly, ever since judges have been restored we have seen nobody dares to disagree on the bench headed by him. This is regimental discipline. Judges are supposed to be not only independent and impartial from the executive but from the judicature hierarchy and the military establishment also. Fourthly, COAs and ISI chief are part of the government their reply should be through the proper channel. Going by their track record there is little hope that judicial commission will act independent of the CJs mood and impartial of the so-called custodians of national security. So far the judiciary has been selectively judicious.
The most disappointing piece by EH in a long while. Asma Jahangir's argument that national security must not be linked to fundamental rights is the crux of the matter as far as Nawaz Sharif's petition is concerned. It is disingenuous of Mr. EH to see AJ’s "public riposte to SC decision ... not in legal but political terms." He has not shed light on why AJ's above argument is not maintainable, and to say that the SC "wants to remain grounded in the legal" really takes the cake!
Excellent conclusion, "They need to find out ‘why’ this has happened (if it did), not who did it. And the why will lead them to themselves."
@Tanoli Few days back there was a news of Turkey choppers hitting a civilian gathering in north kurdistan, which resulted in death of 35 people including children. I wonder how is Erdogen different from Bush or Obama.
Good insight, but i still dont understand how the civil rule is undermined. It was never a battle between the military and the civil rule, rather a battle between constitutional and extra-constitutional. Whoever ends up winning is secondary. The military is showing maturity by taking the legal route.
@Babloo: agreed with you 100 percent. regardless of who wrote it, the contents of the memo were on the dot. military is responsible for the woes confronting our country. it's not the corrupt politicians.... because the current political setup is also a product of establishment's wheeling dealing. but mr. Ijaz points out correctly that military should not be emroiled in whodunnit.... rather why it was written in the first place. the irony is they know why it was written, they just dont care.
In democracy, governments fail and succeed, but that does not mean that democracy has failed. Democracy is the ONLY way of government. "Deep state" should not consider it as the default government, waiting in the wings to take over the government if a person in the civilian government is found corrupt or incapable.
Well said Haq Nawaz
"while civilians have the absolute right to be wrong, they don’t have the right to be stupid."
Yes, in a democracy the civilians have the right to be stupid. If you want to change that you have to engage in democratic competition for leadership, not be the sort of intellectual who endorses coups in exchange for rewards from dictators.
Definitely fishy. The SC takes hold of a supposedly copy of an unsigned letter (unsigned letters are not legal - right?). Actually it is a supposedly copy of the original. It is not a notarized copy. The original has not yet been revealed. SC has not seen the original unsigned copy. A 9 member bench - Why 9 members? Is this a constitutional matter? ALL agree - ALL? - Ever even heard 3 member bench having the same opinion? ALL of same opinion - reminds me of doctrine of necessity. Then the commission is given to those persons who are next in line for promotion to the SC. (In short the unsaid is - we the 9 Honorable Judges of the SC think there is something in this. You better come out with something - needless to say your promotion is in our hands). I am across the border. Disregarding all the frills this is what I see. The conclusion is drawn. The gaps are being filled.
@Ali Tanoli: Tayyeb Ardogan, had a history of holding political offices, he was fully trained into running the business of the state from being a mayor to a minister and than the top slot, and therefore he was able to deliver. mustafa Kamal looks more like a Pakistani version of Ardogan, who has actually run Karachi, successfully, supposedly the mini Pakistan with perhaps, much more complex dynamics. IK is upright and honest but has no experienxce with running public offices and touching 60, a bit old to get the hang of it all in one go, without any foundation, I think it is expecting too much out of him, my best wishes, but I dont think he has it in him
the most important question that everyone is trying not to answer is why did Zardari had to actually write this memo. why is no one putting this question to pakistan militry. i think it is the army which need to do some tough explanation.
all these paid and holier than thou analysists and experts are conveniently overlooking this issue.
The question is , are the assertions in the memo, that ISI/Army are complicit in terrorism against India and OBL sanctuary and other acts of terrorism , true or false. The confessions of Headley in Chicago court allege that ISI/Amy are directly complicit in terrorism. If that be the case the SC should take action against the establsihment that carries the gun and as per the memo is in collusion with terrorists. Thats what needs to be investigated. The facts of the contents of the memo are the issue not who wrote it.
Question: Why would the civilians or civil rule lose if Zardari is impeached? This is a parliamentary system of Government; pick another and move on?
"If he gets nailed, the civilians lose." What a twisted logic this article presents! If this memo was indeed drafted at the request of Ambassador Haqqani with instructions from President Zardari, both of them should be held accountable as per the law. Why the criminal behavior of the president should be construed as defeat of "civilians." I am a 'bloody civilian' in case you are wondering. If Haqqni and Zardari are guilty as charged, I want them punished to the full extent of the law. This would strengthen the rule of law and democracy in Pak and not weaken either. It is about time we booted and jailed errent high-level public officials as they do in better organized societies.
Mr Ejaz Haider writes "His assertion that he will oppose with all his might any extra-constitutional attempt by the military is naive because the military has no plans of doing that."
How does Mr Ejaz Haider know, what the military plans to do ? Is he the official spokeaman of the military ? Besides, can anyone point to me what's not correct in the memo ? I find every word of it to be correct that implicates the establishment with 26/11, OBL sanctuary and other acts of terrorism. Please clarify.
I agree with you and thank you for a very professional analysis. Political ambitions and commitment to one's profession are two separate domains. These should never entangle with each other. I have always respected Ms. Jahangir and that goes back to 1960s when she was Ms. Jillani. My respect for her stands on human rights and restraining the state will never fade away but at the professional front she has flunked. Legal fraternity should upheld the laws and decorum of the courts and not make politically sensitive public pronouncements.
Waiting for Teyyeb Ardogan of pakistan means imran khan to come and solve the problem of land of pure.