Of memogate and precedence – By Waris Husain

As Habib Jalib said, “How can this desert be called a rose garden? How can I write a silver lining of this cloud? We have inherited this grief from the past, how can I write this grief anew?”

Critics argue that the Supreme Court’s decision to continue its probe of Memogate is a replay of past judgments which legitimised the will of the military over the people’s civilian government. Others contend that the will of the people demands that Zardari and his cohorts be punished in any manner for corruption, and the Supreme Court’s decision is one step in that political fight.

Though the Supreme Court judges and the Lawyer’s Movement acted as a political force to remove Musharraf, they should reexamine their roles in the battle for constitutional supremacy today. The Court has a valid interest in applying the rule of law equally to all, including Presidents and former Ambassadors, but they must also recognise the context of that judgment. The law, unlike politics, is powerful only when it follows precedent, and the precedent being set by the court today is quite a dangerous one for the future of civilian-military relations.

The Supreme Court’s order calls for a three judge panel to collect evidence and present findings within one month. In the Order, the Supreme Court stated that it was protecting fundamental rights recognised in Articles 9, 14, and 19A of the Constitution. These articles protect the right to due process, dignity of man, right to information of matters of public importance.

Asma Jahangir, counsel for Husain Haqqani, repeatedly asked how these fundamental rights were violated, even if one were to presume the allegations about the contents and source of the memo are accurate. The implicit argument by the petitioners could be that if the US had acted on the memo and stopped a military coup from taking place, Pakistan’s generals and military personnel would be subject to death or illegal detention at the hands of the US. This hypothetical series of events was enough to satisfy the Court to continue its probe in order to protect the fundamental rights of the military.

Ms. Jahangir responded to the Court’s hearings by stating that “National security has been given priority over human rights…the military authority is superior to the civilian authority.” The unanimous decision by the Court seems to give greater weight to the prospective violations of the Army’s rights over Hussain Haqqani’s fundamental rights, which are presently under threat.

Several of Haqqani’s rights have not been formally recognised by the court, including the right to information. Though the petitioners raised the same right against Haqqani, Article 19 of the Constitution states that “every citizen shall have the right to have access to information in all matters of public importance.” Though Haqqani is a private citizen afforded this right, the Court has applied the Article 19 right almost exclusively in favor of the petitioners. As such, they have requested verification of messages exchanged between Haqqani and his American liason, Mansoor Ijaz from RIM, the company owning Blackberry phones. However, one should ask what of Haqqani’s right to information from the military?

If the Court were acting to protect fundamental rights, as it argues, the order from the Court should have also allowed Haqqani to ask for any information from the military. Article 10A of the Constitution protects the right to fair trial and due process, which generally includes the right to face one’s accusers and cross-examine them before the court. The Chief of the Army and ISI Chief have submitted affidavits in this case, but the military’s historical pattern of behavior has been to withhold information from the Court to avoid legal ramifications for their own wrongdoings. Therefore it is baffling to see a unanimous Supreme Court decision which relies so heavily on the evidence presented by military officers.

For arguments sake, let us assume that the allegations against Haqqani are proven to be true. In order to determine whether he committed treason under Article 6 by “abrogate[ing] or subvert[ing] or suspend[ing]…the Constitution” one must judge whether or not the military was actually attempting a coup. If the military were attempting a coup, a plea to outside powers to help protect the parliamentary governance instead of dictatorship would preserve, not subvert, the Constitution. The case becomes damming for Haqqani if the Army Generals are found to be innocent of said allegations. Either way, the Court should ask for all communications exchanged by Generals Pasha and Kayani in relation to a potential coup, if they wish to accurately assess which party committed treason.

Though the Court has yet to decide who will face charges, they have exclusively put Haqqani on the control list, leaving off the military generals who stand behind the petition. The military leadership not only retains its right to travel, but it was launching international investigations into Memogate before being given the right to do so. The matter most certainly should have been investigated, but the manner and source of an investigation are paramount to a court of law. The information from the military affidavits should be examined critically rather than being accepted as prima facia evidence against Haqqani.

Some of the petitioners in the case belong to the political opposition, and are hoping to weaken Zardari’s government in order to increase their own power. However, Ms. Jahangir aptly warned these politicians should mind the long-term impact of their short-sighted goals to take power in the country. The precedence set by this case will allow for the military to lodge a complaint against any non-compliant democratic regime, present its own version of the evidence, and subject the civilian government to unconstitutional influence by the military. As the court has placed the fundamental rights of the military over civilians, the door is open for interventions on elected governments by the military.

There is certainly an empowering quality to the branches of Pakistani government working as a check on one another, and the Supreme Court taking notice of this issue is a message to show that no one is above the rule of law in the nation. However, the Court is unlike political characters because its power relies on precedence. The Supreme Court’s decision to value military rights over civilian rights is a frightening precedence when one remembers the history of military intervention in civilian politics, but in many ways, it is just another episode in Pakistan’s recurrent history.

As Habib Jalib said, “How can this desert be called a rose garden? How can I write a silver lining of this cloud? We have inherited this grief from the past, how can I write this grief anew?”

Courtesy: Wichaar.com

http://www.wichaar.com/news/294/ARTICLE/27990/2012-01-08.html

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