Memogate redux

For me crux is Asma’s concession that allegations against Haqqani constitute a crime, president liable to...

I’m not generally a fan of sequels but my column from a week ago regarding the Supreme Court’s ruling on memogate has raised enough queries (and hackles) that a second shot is in order.

My previous column has been criticised [especially by Asad Jamal, “Not a tantrum, sir”, January 6] on two main grounds: first, that my legal analysis was flawed; and, second, that in our current circumstances, focusing on legal issues was like missing the forest for the trees.

Let me start with the legal issues.

I have been criticised for arguing that the fundamental rights prong of Article 184(3) has been diluted beyond redemption on the basis that the Supreme Court has no jurisdiction to ignore express provisions. Secondly, it has been argued that the memo deals with non-justiciable issues of national security and foreign affairs. Finally, people have argued that the Supreme Court cannot appoint a judicial commission when a separate Parliamentary Commission has also been set up.

To begin with, it needs to be understood that no text — and especially no constitutional text — exists in a vacuum: instead, such texts exist and hold meaning within a larger body of interpretive works.

For example, Article 199 says that a writ petition will only be maintainable if “no other adequate remedy” is available. This requirement has never been interpreted literally but has been broadly interpreted over the past few decades so that the superior judiciary can intervene essentially whenever it feels like it.

The same process of judicial interpretation has happened in the context of Article 184(3) so that what constitutes “enforcement of fundamental rights” has become more and more broadly interpreted. Since 2005 — i.e. when the current Chief Justice took office — this expansion of public interest litigation has reached new bounds. As my learned friend Asad Jamal has noted, I am not a big fan of this development. But as a lawyer, I do not have the option of turning a blind eye to twenty plus years of consistent jurisprudence.

The other law points are easier to deal with. Take, for example, the issue of non-justiciability. So far as I can see, the memogate ruling does not decide any question of national security or foreign relations: the Court only directed the formation of a commission to investigate a possible crime. Had Asma Jahangir taken the position that no crime had been committed even if the memo was genuine, the position would have been different. But in this case, she expressly conceded that “if the involvement of her client in writing the memo was proved, it constituted a criminal case against him”.

The final law point relates to the overlap between the judiciary and parliament. The simple answer here is that parliament and the judiciary have mutually exclusive jurisdictional realms. Parliament is the only body that can decide whether a president should be impeached. But the judiciary is the only body that can decide whether a person is to be convicted. If the judiciary was claiming the right to impeach the president, I might understand the criticism. But at present, it seems as if the PPP’s lawyers are claiming that only the parliament can investigate any crime if it is related to a potential impeachment: at least from my perspective, that claim seems invalid.

A more practical criticism is that if the judicial commission comes to the conclusion that Husain Haqqani has committed a crime, it will be very difficult for any subordinate judge to disagree. Asma’s view is, therefore, that the executive branch should carry out the investigation as part of its regular duties.

I think that there is some validity to this line of argument. However, the problem here is that not only does this case involve extremely sensitive issues but it also implicates the head of the executive branch. In such circumstances, asking the executive to handle the investigation means asking the executive to investigate itself. The standard option — at least in the US — is to have such investigations handled via an independent counsel, as was done in the Watergate case (for Nixon) and in the case of the Whitewater scandal (for Bill Clinton).

Leaving aside theory, let me ask a simple question: given the stakes, how is it contrary to the national interest for the memogate investigation to be handled by three sitting, extremely well-respected judges of the superior courts as opposed to some random low-grade police official? Saying that everybody is equal before the law misses the point. Some cases are clearly more important than others and they do need to be treated more carefully.

I come now to the non-legal criticism. The argument here is that the memogate ruling should be seen not just in legal isolation but in a political context. More specifically, it should be seen in a political context where Pakistan’s ever-resilient establishment is trying once again to undermine the growth of democracy by removing a popularly elected government. The complaint thus is that by intervening in the memogate scandal, the judiciary has sided with the establishment in “a slow motion coup”.

The short answer to this argument is that correlation is not causation. Yes, the establishment does not like Zardari and yes, the judiciary is not too fond of him either; but this does not mean that the judiciary dislikes him because the establishment hates him or even that the judiciary is willing to act as an accomplice in his extra-judicial removal. If anything, the Supreme Court has gone well out of its way to squelch rumours that it is prepared to welcome a military coup. One may also note that there is more to democracy in Pakistan than just the PPP.

For me, at least, the crux of the matter is Asma’s concession that if true, not only did the allegations against Husain Haqqani constitute a crime but that the president was also liable to be impeached.

If the allegations against Husain Haqqani can constitute a crime, then it follows that they must be investigated. If that investigation has the potential to compromise a sitting president, then it follows further that the investigation must meet the highest standards. A commission headed by three sitting high court chief justices may or may not meet those standards. But it certainly has a better chance of doing so than an investigation supervised by our current interior minister.

Published in The Express Tribune, January 10^th, 2012.