ULTIMATELY, the disagreement over the Supreme Court's decision to hold the memo case maintainable turns on different conceptions about the interplay between national security and fundamental rights.

One view holds that the security of the Pakistani people is the basic fundamental right. It is only if this security is guaranteed that any meaningful other rights can be granted. Therefore, preserving national security is an essential part of the right to life. Indeed, this is the view that seems to have held sway in the SC.

Yet, this argument fails to appreciate that history has already taught us that the greatest threats to fundamental rights stem from the desire of putting a collective interest before an individual right. It is not difficult to understand the argument that national security can itself be the biggest threat to fundamental rights.

Consider the Patriot Act in the US after 9/11. In the guise of national security, it paved the way to compromise the right of speech, assembly, fair trial and even liberty of people within and outside the US.

Guantanamo Bay, which we all routinely condemn for keeping people indefinitely detained without any hope of trial, and the endorsement of torture as an investigative technique are born of the very idea that national security is the core right, and all other rights stem from it. You see, the argument becomes self-defeating. Once it is agreed that threats to national security come within the right to life, one can justify torture on the grounds thatit is necessary to do so in the name of national security and therefore to protect the right to life. The right to life then becomes not a tool to enhance other rights but in fact a toolto compromise them.

It is not difficult to envisage a day where the freedom of speech (to criticise our armed forces,orsay ageneral in uniform) and freedom of information guaranteed to ourpeople can be brushed aside on the groundsthat the information or speech, being harmful to the morale of our armed forces, threatens our national security and thereforeiscontrary to the right to life.

By accepting this argument therefore, the court has set a precedent where the fundamental rights will work against each other, and the 'right' to life becomes a threat to the other rights enshrined in the constitution.

Already we have seen the court brush aside potential violations of Husain Haqqani's rights. If the judicial commission finds that Mr Haqqani did dictate the memo, is it plausible that any lower court trying him under Article 6 (if it comes to that) will be uninfluenced by that finding? Will his trial not be prejudged? Worse, will any appeal to the higher courts not already be prejudged by the SC? Will he then have the chance to put up a full and unimpeded defence? The argument that he can defend himself before the commission is not good enough. The commission puts him in the unenviable position of being afforded none of the protections offered to an accused in our system but tobe treated like one for all intents and purposes. For example, in a trial he would have the right not to incriminate himself, but in these proceedings it is only arguable that he has the right to not cooperate with the commission without being in contempt of court.

These contentions are not made with a fealty to Mr Haqqani in mind. They are made with a fealty to the constitutional protections guaranteed to the people that we have contracted with the Almighty to afford even to the least of us. They are made with fealty to the ideal of justice, and to the integrity of this very court, that no one should be able to claim that the justice meted out to him did not give an adequate opportunity to prove innocence.

Yet, for all the weight behind Asma Jahangir's contentions, ultimately she is let down not by the SC but by the government in whose favour she spoke out.

Many, including Ms Jahangir, have suggested that this court is no longer independent, or that some unholy alliance between the security establishment and willing judges has been re-formed against the civil-democratic institutions. Yet, to believe that is to ignore the context in which this court has operated and in which the memo case arose.

No matter how much we pretend otherwise, judges do not act in a world of law that is divorced from reality. The law is a social tool, designed to govern relations between individuals and institutions for the real world. It can only function in the context in which it exists.

The context here is a government that is guilty of a disingenuous game of cat and mouse with the court. This government has consistently made a mockery of implementing SC judgments to protect selected individuals. In the NRO verdict it has made the choice that one man is more important than thecredibility of the civilian government, the institution of the SC, and the constitutional duty of the executive to implement SC judgments.

This was even more apparent in the government's blatant attempts to stall investigation into the NICL scam once again to protect individual thievery and interest.

In effect, it has been apparent to all and sundry that there exists not a single independent investigative authority in the country that will be allowed to do its work. It is in that context that the court's readiness to assume jurisdiction has to be seen, and not some secret alliance with the military.

Therefore, while Ms Jahangir was probably right on the legal argument and bravely so she was wrong that a bias in the SC is to be blamed for it. The fundamental cause of this constitutional conundrum is not a biased court. It is a duplicitous executive that has deliberately undertaken the strategy of protecting individuals over institutions contrary to its stated creed.

The writer is a Lahore-based lawyer.

skhosa.rma@gmail.com

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