Daily Times

The issues surrounding the alleged memo, apparently written by a US citizen Mansoor Ijaz, sent via another US citizen General (retd) James Jones, to a third US citizen Admiral Mike Mullen, have now been taken up by the Supreme Court (SC) of Pakistan to adjudicate. The Pakistani apex court had been moved via multiple petitions filed by Mian Muhammad Nawaz Sharif and others.

That the so-called Memogate is a political problem and will have a political resolution has been abundantly clear from the outset. I noted last month that the idea behind what looked like a sting operation had been to get not just Ambassador Husain Haqqani but to also net President Asif Zardari, whose removal through any constitutional means seems extremely difficult, if not impossible.

In this context the political response by the Pakistan People’s Party (PPP) is understandable. By going to the people and not seeking or receiving overt help from other quarters, the party has sent a strong message to all the major players, including the US. The party’s young co-chairman Bilawal Bhutto-Zardari entering the political scene will certainly energise its base. But with the superior judiciary taking up the memo issue, a new legal dimension was added to the saga fit for a low intensity spy thriller.

Mian Nawaz Sharif’s theatrics in the SC’s courtroom one may have made the late movie star Muhammad Ali envious. He came prepared with a black jacket, a matching necktie and all. Perhaps missing was the wig — no pun intended — and the robe a la Queen’s Counsel. The respected lawyer Justice (retd) Fakhruddin G Ebrahim was supposed to represent him. But Justice (retd) Ebrahim called in sick that day, ceding centre-stage to Mian sahib. Interestingly, Justice (retd) Ebrahim sounded quite well on an hour-long television show with anchor Hamid Mir the same evening. The speed of his recovery was matched only by the swiftness with which the SC delivered what has been dubbed a judgement, not an interim order, by the redoubtable human rights campaigner Asma Jahangir who is representing Husain Haqqani.

Asma Jahangir has filed challenges to the initial court verdict, which were subsequently dismissed. But she raised some very pertinent questions on behalf of her client, both in writing to the court and through the media. One issue pertains directly to the ‘political question’ doctrine and if such a matter falls under the purview of the judiciary, especially when the other state institutions, including the executive and parliament, are not just functional but proactively pursuing the matter.

The SC itself has alluded to a similar concern. It recognised that the one-man commission appointed by the court would essentially run an inquiry parallel to the probe by the Parliamentary Committee on National Security announced by Prime Minister Yousaf Raza Gilani. The court then drew a parallel with the simultaneous inquiry of the Watergate scandal by the US Senate and the court-appointed special prosecutor in the US vs Richard Nixon case.

The court, however, has effectively ignored the stark contrast that exists between the conduct of President Nixon and his administration and the current PPP government. While Nixon had obstructed justice every step of the way, the PPP government has opened every door to a transparent inquiry. Indeed, it is a matter of public record now that Husain Haqqani had offered his resignation way before anyone asked for it. And not just that, he flew back to Pakistan to face an inquiry. In somewhat similar past situations many brave souls had actually flown the coop!

In the US, discussion about the ‘political question’ doctrine has been part of the decades-old debate on judicial activism. It would be interesting to see how an assertive Pakistani judiciary now defines what may or may not actually be its province. Asma Jahangir perhaps was referring to the 1962 Baker vs Carr case, where the US Supreme Court had noted:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

In its December 1, 2011 order, the SC has not specified what exactly is the “judicially discoverable” material that it seeks to get through commissioning a former civil servant (who has since recused himself from the required service). But by making references to Articles 5 and 6 of the Pakistani constitution, which deal directly with the loyalty to and treason against the state, respectively, the court itself appears to have shown that a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department’ exists now where none was present ab initio.

Simply put, the courts are not the venue envisaged by the Pakistani constitution to adjudicate any citizen’s loyalty or treason. While the petitioners did not raise these issues, by including them in its order, the SC has apparently committed itself to decide now whether or not it will accord due respect to the coordinate branch of the government –parliament in this case — under whose purview such matters fall. It is precisely such a situation where the “potentiality of embarrassment from multifarious pronouncements by various departments on one question” exists. In a country where the courts have historically been the venue of impugning politicians’ loyalty be it the Rawalpindi, Agartala, Malakand or the Hyderabad conspiracy case, the atmosphere of mistrust could not only embarrass institutions but fast-track them to a mutually assured destruction.

The author of the monograph, ‘More Supreme than the Court’, Professor Rachel Barkow had lamented that the erosion of the political question doctrine in the US had raised serious concerns because “the doctrine forces the court to confront (and acknowledge) the institutional strengths of the political branches — and the court’s weaknesses in resolving constitutional questions”. Asma Jahangir by invoking the political question doctrine has provided the SC an opportunity to send a clear message that in many instances the authority to answer constitutional questions is the prerogative of parliament — a body more supreme than the court.

Postscript: The SC has now admitted for hearing, former Ambassador Husain Haqqani’s plea against the court’s interim order.

The writer can be reached at mazdaki@me.com. He tweets at http://twitter.com/mazdaki