Supreme memo

Published January 5, 2012

ALL the elements of high judicial drama were in place. A case instituted by a former prime minister and the foremost opposition leader today, regarding an allegedly treasonous memo involving the Americans; a memo co-authored by an American supposedly with our ambassador in America, allegedly with the consent of our president, involving a conflict between our de jure civilian rulers and our de facto military rulers; replies submitted in the Supreme Court by our army and intelligence chiefs without the consent of their civilian constitutional superiors.

With such formidable facts, was Asma Jahangir — former counsel for Husain Haqqani — really serious when she argued that the SC should not hear and decide this case?

Although the apex court is yet to give detailed reasons for its Dec 30, 2011, short order and the main memo-related cases are still pending, let us tentatively analyse the order's context, determinations and implications.

The memo case involved two main conflicts and three main players — Nawaz Sharif, the Pakistan People's Party and the army — with different motives and strategies in requesting, or avoiding, a judicial inquiry and adjudication. This context is critical in understanding the order.

Mr Sharif has three interconnected purposes: to stay popular, to avoid a military-backed government and to form the next federal government by winning the upcoming elections. The memo case initiated by him provided a platform for starter solutions to these problems: it was a popular move, the petition took the initiative on the issue away from the military, and it provided an opportunity to either force or negotiate an early election with the PPP government before the purported 'tsunami' of the Pakistan Tehreek-i-Insaf. In essence, the SC was called upon to conduct an adjudication of a political conflict involving constitutional issues.

From the elite to the common man, it is an open secret that the de jure, constitutional PPP rulers share power with the de facto, unconstitutional military co-rulers in Pakistan. Regardless of the truth about the memo, the case provided a golden opportunity for the military establishment to further its policy of increasing its de facto power through political destabilisation. What better way to continue to remain a military-dominated security state than by accusing a civilian government of treason?

In another time the military establishment would have imposed a coup (1958, 1969, 1977, 1999) or a soft coup using the presidency (1990, 1993, 1996), but history, society and the international context have moved on. So the SC was called upon to conduct an adjudication of an intra-state, inter-branch conflict involving constitutional issues. Unlike the hard and soft military-coup SC cases of the past, the military in this case was not asking for legitimacy from the courts for unconstitutional actions already performed but was instead seeking to increase its de facto power by using the judicial forum.

It is in the above context that a deconstruction of the memo order leads to the determinations and implications that follow.

To no one's surprise, the SC decided to hear and decide the memo case. Fragmentation, or infighting, amongst political and state actors breeds judicial independence. This case was a high point in judicial independence because the political and state elites were seeking the SC's intervention in resolving their conflicts. From Latin America to South Asia, judiciaries have adjudicated upon political and inter-branch conflicts. Therefore, there were no jurisprudential surprises here.

The task of the SC was helped by the fact that even the federation of Pakistan had not denied the existence of the memo and only “the origin, authenticity and purpose of creating/drafting of the memo” had to be ascertained.

The high-level judicial inquiry commission formed for this purpose comprises three chief justices of the high courts for the obvious reason that it will be very difficult to question it. These judges are not only persons of high judicial calibre but have made professional and personal sacrifices during the lawyers' movement against unconstitutional military interventions.

There are two more points to note. The SC has noted that “no separate reply has been filed by the President of Pakistan”: one hopes the president's legal advisors have told him about this part of the order, which has unpredictable connotations. Secondly, by holding that “prima facie these communications form the most important piece of evidence”, the SC has attached a presumption of authenticity to the so-called evidence of Blackberry Messenger conversations, e-mails and telephone calls relied upon by Mansoor Ijaz and ISI chief Shuja Pasha.

But the petitions in the case are still pending and will be “fixed by the office after receipt of the report from the Commission”. Therefore, after the submission of the judicial commission inquiry report within four weeks, it is the apex court which will decide these conflicts. In other words, the order is only a preview and the judicial drama is yet to be enacted.

If only the PPP had adopted a legal rather than a political strategy in this case; if only Ms Jahangir and the government had not fought with the SC and claimed bias and had instead adopted a different strategy: to accept the court's jurisdiction to decide this issue and to request it to form a more broad-based commission made up of judges, politicians, former bureaucrats and civil society persons to allay the perception of alleged judicial bias.

But the moment has passed, and history is not a taxi one can stop at one's own convenience. For the PPP to now survive before the courts, Babar Awan's martyrdom has to be abandoned as a failed legal strategy.

The writer is a lawyer.

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