Judicial circus on memo

Legal solution to a political question

Whichever way one looks at it, the beginning and end of the ‘memogate’ controversy is political, as there is no constitutional issue to be resolved.

Ultimately, Asma Jahangir’s stance on the Supreme Court Order is exactly right

By Maryam Khan

The ‘memogate’ controversy is a political question, which means it is a question for political resolution between the political branches of government (the executive and the legislature) and other State institutions, like the military and the intelligence, which are subordinate to the government. The controversy requires political resolution because it has a direct nexus with structural issues relating to civil-military relations. To put it bluntly, the Supreme Court, in principle, has no role to play in this controversy. Let us see why.

The Supreme Court, in addition to its appellate jurisdiction, has what is known as “original jurisdiction” to admit and hear cases directly — that is to say, it can assume jurisdiction over a certain category of cases that need not go through the usual hierarchical appellate route before reaching the Supreme Court for ultimate resolution. This category of cases is constitutionally circumscribed for obvious reasons. If it weren’t so circumscribed, litigants would flock directly to the Supreme Court for expedited disposal, creating massive demands on the Court that would be impossible to sustain over time. Not only that, if the Constitution allowed the Supreme Court unlimited jurisdiction over constitutional matters, every dispute, whatever its nature, could potentially turn into a “legal issue.” Put another way, there would be no boundary between executive/legislative powers on the one hand, and judicial powers on the other. That would be a recipe for constitutional disaster as it would render meaningless the philosophy of “separation of powers” or “trichotomy of powers” which is the fundamental feature of all modern constitutional governments.

Those who have some appreciation of history — even of our own limited political history of the past few decades — would know that combining executive, legislative and judicial powers in one institution, or even combining two of them in a single office, is synonymous with tyranny. Separation of powers minimises the risk of tyrannical government.

Article 184(3) of our Constitution, which spells out the original jurisdiction of the Supreme Court, recognizes these two critical principles of constitutional dispute resolution: firstly, that the Supreme Court is, as a general matter, a court of last resort, except where there is an important constitutional issue at stake; and secondly, that even where an important constitutional issue is at stake, the Supreme Court must not arbitrarily assume jurisdiction over it if it encroaches upon the political powers and functions of the executive/ legislature. Article 184(3) says:

“…the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights…is involved, have the power to make an order…” [emphasis added]

The above provision provides formidable judicial review powers to the Supreme Court to keep in check executive and legislative excesses. But the two elements of “public importance” and enforcement of “Fundamental Rights” are not discretionary. They are essential threshold requirements. Without independently establishing both elements, the Supreme Court cannot exercise its original jurisdiction. If it does, it is doing something as unconstitutional as, for instance, the prime minister of Pakistan taking on a judicial role and convicting a person accused of a crime. Only a deeply misconceived notion of judicial independence can lead one to support the former as constitutional, and dismiss the latter as illegal.

Let us now subject the memogate controversy to the two-pronged test in Article 184(3). The Supreme Court’s Order of December 30, 2011 (henceforth SC Order) holds that the memo petition is maintainable under Article 184(3). Although the SC Order does not contain the reasons for this decision (as the full text of the Order is yet to be written), one may attempt to explain the rationale for maintainability based on the facts of the controversy, the replies and affidavits filed by the parties, and the judges’ comments during the hearings.

General Kayani (COAS) has stated in his reply that the there is sufficient evidence to establish the existence of the memo and that its contents have “an impact on national security and…attempts to lower the morale of Pakistan Army.” He bases this conclusion on information provided to him by General Pasha (DG-ISI) who recently met with Mansoor Ijaz personally in London. Nawaz Sharif and other petitioners have presented a similar ground, and one petitioner has even gone so far as to say that “each and every Pakistani is at security threat due to present government” which is “collaborating with Pakistan’s enemies”.

Presumably, it is on the basis of these articulations of “national security” that the Court has held the memo to be a matter of “public importance.” In effect, what is being alleged is that because the civilian government solicited the assistance of a foreign ally to prevent a likely military takeover in the aftermath of the raid on Osama Bin Laden, it undermined the military’s political power and supremacy over the country and thereby damaged its morale. Indeed, even if one were to concede the existence of the memo, it is now a matter many months past and has not accomplished anything by way of implementing such a threat. Thus, the entire matter, though amenable to political discussion and investigation, is a moot point in terms of the current judicial inquiry. In any case, if the Supreme Court was genuinely interested in upholding and protecting “national security,” the multiple provisions in the Constitution that unequivocally make the military and intelligence services subordinate and accountable to elected representatives could not have gone so brazenly unnoticed.

Whichever way one looks at it, the beginning and end of the controversy is political, as there is no “constitutional” issue to be resolved.

As far as the second threshold requirement of “Fundamental Rights” is concerned, the SC Order mentions cryptically the rights to life, dignity, and information. While the latter is a new and untested addition to the Constitution, the former two Fundamental Rights have been a regular feature of the highly thoughtless Article 184(3) jurisprudence emanating from Chief Justice Iftikhar Chaudhry’s Court since 2005 under the garb of “judicial activism”. Any number of activities and policies, ranging from wedding meals and kite flying to development projects and oil pricing mechanisms, have fallen prey to the Court’s intervention through the “right to life” (article 9) and the principle of “inviolability of dignity of man” (article 14). It appears that we are now expected to add a highly ill-defined and military-centric notion of “national security” to this inexhaustible and unbounded jurisprudence.

The fact that the Court did not even deign to raise the issue of maintainability of the memo issue when it first came to the Court indicates how trigger-happy our judges have become in encroaching upon the representative branches of government. This is judicial tyranny — not to be confused with judicial independence.

Quite apart from the question of maintainability, one must ask, what is likely to happen if the memo does indeed exist along with its alleged contents? Could Mr Haqqani be criminally charged with high treason under Article 6 of the Constitution? High treason is established where an individual “abrogates or subverts or suspends or holds in abeyance” the Constitution (or attempts or conspires to do so) “by use of force or show of force or by any other unconstitutional means.” Clearly, this is an offence against the mutilation and subversion of the Constitution, not against lowering the morale of the security forces.

It is ironic that Article 6 makes one think instantly of Ayub Khan, Zia-ul-Haq and Pervez Musharraf — as well as the Supreme Court that validated the subversion of the Constitution many times over. And if Mansoor Ijaz’s allegations are to be believed in totality, one may add General Pasha to this list, given his anti-State overtures to Arab allies to overthrow a constitutional president. Husain Haqqani seems to be quite a lightweight compared to this veritable military-judicial complex. Yet, as if the memo weren’t enough, the chief justice of the Lahore High Court has promptly admitted a petition alleging high treason against Prime Minister Gilani on the basis of non-conformance with the Supreme Court’s orders.

Ultimately, Asma Jahangir’s stance on the SC Order is exactly right. Even before the 3-member judicial commission initiated its investigation, the Supreme Court unwittingly exposed its bias against Haqqani and, more broadly, civilian representatives of the Federation.

Consider how the Court readily lent credence to the claims of an individual as dubious as Mansoor Ijaz simply because the COAS and DG-ISI affirmed the existence of the memo, but at the same time discredited the affidavit of James Jones (former National Security Advisor) that forcefully contradicts Ijaz’s version of the facts. Consider why the SC Order is conspicuously silent about Ijaz’s other “revealed facts” that directly implicate General Pasha in high treason. Consider why the Court dismissed out of hand Haqqani’s pleas regarding the unauthorised meeting between General Pasha and Ijaz in October 2011 as “technical flaws,” refusing to recognize the obvious unconstitutionality of this backdoor rendezvous. Consider what prompted the Court to immediately and unthinkingly admit as a petition under Article 184(3) a random letter written to the Chief Justice by a Canadian national of Pakistani origin alleging that the present government was a threat to national security, while at the same time ignoring another petition urging the Court to subject to equal scrutiny Ijaz’s allegations against General Pasha.

If these are not sufficient grounds for raising doubts about the judiciary’s impartiality, consider the fact that the judicial commission has already enlisted the assistance of the ISI — an interested party — in authenticating the “forensic evidence” pertaining to the alleged BBM communication between Mansoor Ijaz and Husain Haqqani (para 7 of the Commission Order dated Jan 2, 2011). Should serving judges need constant reminders to guard against obvious conflicts of interest?

All said and done, the citizens of this country have available to them two important constitutional routes to oust the government of the day through their elected representatives. One is impeachment of the president, the other is a parliamentary no-confidence move against the prime minister. But the memo petitioners lack both the numerical strength and the gumption to do things the constitutional way. And true to its historical legacy, the Supreme Court seems to be exercising its unbridled powers — with the support of the security establishment — to again facilitate the ouster of a civilian government. Who needs martial law or the 8th Amendment when we have the Supreme Court to do the lynching?

The writer is an Assistant Professor at the Department of Law & Policy at LUMS. Her areas of teaching and research include comparative constitutional law and theory, federalism and ethnic politics, and the criminalization of civil wrongs in Pakistan. The writer may be reached at maryamk@lums.edu.pk

Courtesy: The News


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