Daily Times

Where judicial activism has admirably exposed the executive’s excesses and transgressions, it has also spurred the politicians to conveniently bring matters to the Supreme Court (SC) that are political and best suited to be taken up in parliament. As a result, the SC is becoming more of a political arena than the apex court of law. The so-called Memogate petition filed by Mian Nawaz Sharif yet again illustrates this point.

The whole case rests on this question: whether Ambassador Haqqani, on his own initiative or at the behest of President Zardari, sent the memo to Admiral Mike Mullen, and committed a treacherous act? On the face of it, it involves determination of facts rather than interpretation of law. Hence, a one-man commission has been instituted by the court to collect evidence. Therefore, many a legal expert, among them Asma Jahangir and Yaseen Azad, the former and the current presidents of the Supreme Court Bar Association (SCBA), has shown reservations on the petition being entertained by the SC.

Let alone resolving the controversy, even the collection of ‘evidence’ per se is problematic. The star witness, Mansoor Ijaz, and the recipient of the memo, Admiral Mullen are foreign nationals and out of local jurisdiction. Moreover, Mansoor Ijaz’s credibility as a bona fide witness belies both his past adverse views about Pakistan and its military and intelligence apparatuses. And he may decline to appear before the court or subject himself to cross-examination by the defence.

The ‘evidence’ collected by the ISI on the Memogate affair would also raise the question of credibility, for the agencies are also the ‘aggrieved’ party as the memo purportedly sought US support to upstage the existing military and intelligence leaderships. Indeed, the army chief reportedly took up the Memogate scandal with the president only after the ISI chief had met Mansoor Ijaz in London and gathered the ‘incriminating’ evidence.

Moreover, Mr Haqqani would also be better placed to rebut the allegations that are based on a series of tenuously circumstantial, anecdotal and figurative electronic communications that took place between him and Mansoor Ijaz. The latter’s changing statements as regards the role of President Zardari in the memo affair may also reinforce Haqqani’s position.

No wonder, anticipating both the complexities involved in the collection of evidence and fathoming the controversial nature of the whole issue, Mr Tariq Khosa, who was to head the commission, has politely declined to accept the responsibility.

In any case, the track record of such commissions has been rather dismal. Hardly any commission instituted by the executive or the judiciary to look into matters impinging upon national security, human rights, dereliction of duty, violation of rules, and so on has proven helpful. Deplorably, we did not learn any lessons from the two most important commissions — the Court of Inquiry formed under Justice Munir to look into the roots of religious conflict in the early 1950s and the Hamood-ur-Rehman Commission, which inquired into the “circumstances in which the Commander, Eastern Command, surrendered”.

More intriguingly, the petition was filed in the SC when a parliamentary committee is already seized of the matter. Given the politically explosive nature of the Memogate scandal, a contradiction between the findings of the one-member commission and that of the parliamentary committee may very well develop. In that case, it would be extremely difficult for the court to rely on the commission and ignore the committee’s findings, knowing that the fates of the petition, the accused, and the current dispensation, may hinge on its decision.

Leaving aside the political turmoil that may erupt following the court’s decision, let’s presume the SC finds Mr Haqqani guilty of committing a ‘treasonous act’ and that too at the behest of President Zardari. Let’s also assume that Mr Haqqani is tried, at worst, under Article 6 of the constitution, and the president, if he is lucky to escape the same charge under the same Article, is forced out a la President Nixon. What would be the political and legal fallout of such developments?

First, the current political setup, devoid of President Zardari, who is also the co-chairman of the PPP, could crumble. What follows then? New elections? Or, as the speculations rife in some quarters of the media, a ‘Bangladesh-like’ caretaker setup under the aegis of the establishment or/and the judiciary? Obviously, it would be unconstitutional. In that case, would the alibi of across-the-board accountability be employed to justify the unconstitutional arrangement? If yes, then would this ‘gloriously independent’ judiciary not be compelled to exhume the doctrine of necessity and bury its own independence and legitimacy?

Secondly, let’s also presume the court does not allow any unconstitutional arrangement and new elections are called. Would the establishment not influence the elections? Would it never cross its constitutional limits, as it does, dominating the security and foreign policies? And if it did, would heads roll in Rawalpindi on similar constitutional petitions as the one that would have sent the existing government home? In short, would the SC guarantee that the principle of civilian supremacy as envisaged in parliamentary democracy would be henceforth enforced?

If, however, the civil and military power-construct remained decisively tilted in favour of the latter, notwithstanding the fact the SC has sent the ‘culprits’ of Memogate to the gallows, then the court would be stigmatised for being an ‘instrument’ of legitimising autocracy in all its garbs. And that would be tragic for it, for the people who struggled for its ‘restoration’ in their legitimate expectations that it would protect constitutionalism wherein subsist their natural and civil rights and liberties. And that would also be tragic for the federation as yet again a political party, the PML-N, representing mainly Punjab, would have instrumentalised the apex court, a guardian of federal equity and fairness, in prematurely sending home a coalition government that enjoyed a country-wide parliamentary representation. It would also set a wrong precedent that political controversies, rather than constitutional questions, could still be outsourced to the court to bring down an elected government.

And such a precedent would fly in the face of the current judicial activism, though it would be in sync with Pakistan’s history, which is infested with US interventions sought both by civil and military leaders. The petitioner, Nawaz Sharif, also committed more or less the same ‘treachery’ in 1999 when he dispatched Shahbaz Sharif and a general to Washington to solicit support against the then military leadership. Likewise, the Banopartist generals always looked to the US before and after staging coup d’états.

Indeed, it is the traditionally lopsided civil-military construct and inept and corrupt governance that bring in external meddling, sometime as an ‘honest’ broker, but often as a co-conspirator. Unless the power-construct is changed in favour of the civilian leadership and the latter is efficient, upright and committed to and supported by the electorate, the fountainhead of power, such ‘treacherous acts’ are inevitable.

The writer is a lawyer and academic. He can be reached at shahabusto@hotmail.com