‘Memogate’ commission should examine existing evidence, not create new evidence

The equation as it should be: Army following policies set by the civilian elected government, not the other way round. (Reuters file photo)

What is ‘Memogate’? The ‘memo’ in question is a letter allegedly written at the behest of Pakistan’s President by the Ambassador to Washington Husain Haqqani, asking USA to prevent a possible military coup in Pakistan after US Navy Seals killed Osama bin Laden in Abbottabad, Pakistan on May 2, 2011. Haqqani denied the allegations, sent in a letter offering to resign in order to facilitate an impartial inquiry, and returned to Pakistan to clear his name. Instead, he found his resignation letter accepted. The Supreme Court barred his exit from Pakistan. He has been forced for his own safety to confine himself first to the Presidency and then to the Prime Minister House. On Dec 30, 2011, The Supreme Court in response to a petition against the ‘memo’ formed a three-member judicial commission to look into the matter that the media has dubbed as ‘memogate’.

Asma Jahangir, counsel for Husain Haqqani and former Supreme Court Bar Association President, has refused to appear before the commission saying that she does not trust the judiciary. She has said that instead of forming a commission to create or produce new evidence the Supreme Court should have looked into the evidence placed before it to decide whether there was a prima facie case and whether the court could proceed to enforce any fundamental rights by making a binding order.

"When did the army ever leave (power) that it should come back?" asked Asma Jahangir

The entire affair appears to be geared towards undermining the democratic political process in Pakistan – specifically at targeting President Asif Ali Zardari, using Husain Haqqani as a vehicle. Asma Jahangir has unequivocally termed the Supreme Court’s judgment as a victory for the military that has run affairs in Pakistan for decades and is obviously still all-powerful behind the scenes.

Asma Jahangir has argued that the Supreme Court had no right to bar Haqqani’s travel abroad. Nor does Supreme Court or the judicial commission set up, have the right to demand Blackberry (RIM) data without due process of law. No server (BU or RIM) should share data with Commission, which is essentially pursuing a political dispute, not criminal charges. The judiciary seems to be ruling on the basis of national security ideology instead of constitution and law.

In the first place, the Supreme Court was not competent in the first place to uphold the petition as maintainable, given that no fundamental right had been violated as a result of the memo and its alleged conspiracy. Secondly, the memo had in any case failed to achieve its alleged aim – according to its recipient (then Chairman of the Joint Chiefs of Staff U.S. Admiral Mike Mullen) as well as the Pakistan Army Chief.

“Article 184(3) empowers the Supreme Court to make an order in matters of public importance guaranteed in Chapter I of Part II of the Constitution in which violation of any fundamental rights has taken place. In this case, no violation of fundamental rights has taken place, a most essential question, without an answer to which the court should not have proceeded to make an order of this nature,” comments advocate Asad Jamal in his informative article of Dec 4, 2011 (Deconstructing the SC order on the memo).

The existing evidence is not sufficient to determine whether there was some conspiracy or threat to the security or sovereignty of Pakistan. The evidence placed before the court by the DG ISI and Mansoor Ijaz shows that there was no conspiracy or threat to the security or sovereignty of Pakistan.

In fact there are several contradictions in Mansoor Ijaz’s claim. For one thing, his email dated 10 May, 2011 (annexed with Mansoor Ijaz’s affidavit before the SC) addressed to Gen (Retd.) James Jones, former US national security adviser who handed the ‘memo’ to Admiral Mullen, states that the so-called memorandum had been prepared by three persons. Moreover, Gen. Jones in his affidavit has said that Mansoor Ijaz never mentioned Husain Haqqani’s name in his communication with him, implying that Husain Haqqani was never involved in drafting it or in asking for its delivery to Mike Mullen.

The court says it will not go into the facts of the case, but is clearly influenced by the DG ISI’s statement that he went and met Mansoor Ijaz on October 22, 2011, examined his evidence and believed that what he was told was correct. If the DG ISI has evidence about the case, given that he went all the way to London to meet Pakistan origin US citizen Mansoor Ijaz, why has he not presented it in the court to facilitate the evidence collection?

Husain Haqqani: Scape-goated?

Mansoor Ijaz’s Blackberry messages (BBMs) contain nothing from Husain Haqqani about the supposed memo.  Going by the transcript, assuming it is genuine, it was Mansoor Ijaz who offered to fly down to meet Husain Haqqani in 90 minutes – it was not Haqqani who invited him. There are other obvious problems with the existing evidence, including discrepancies in the BBM transcript attached with Mansoor Ijaz’s reply and that published in The News. Then, Mansoor Ijaz in his covering email to Gen (Retd.) James Jones, former US national security adviser who handed the ‘memo’ to Admiral Mullen, writes that the attached ‘memo’ was drafted by three ex-officers related to national security. Gen. Jones in his affidavit testified that Mansoor Ijaz never mentioned Husain Haqqani.

“Article 184 (3) is not an automatic trigger that gets pulled with the filing of a petition; a petitioner has to make out a proper case,” notes advocate Jamal. “When there is no violation, what fundamental right will the SC maintain? The commission appointed by the SC is to conduct an inquiry but its findings will not be binding on any court of law, the government or the Parliament. So what fundamental rights will be enforced?”

The argument so far was restricted to the maintainability of petitions but by appointing a commission, the court went a step further, granting the entire relief (and more) in one go without hearing the arguments, or discussing the commission’s terms of reference. Then, after assuming that the memorandum’s “issuance, prima facie, seems to be established”, the court suggested that the offence (the nature of which is yet to be determined) may invoke Article 6 of the Constitution, i.e. the offence of treason, notes Jamal.

He points out that: “The petitioners have, intriguingly, arrayed the President of Pakistan as a respondent, to which no objection was raised by the Court.” This lends credence to the widespread perception that the real target in this case is the President – an allegation that Asma Jahangir also levelled in her interview with Matiullah Jan of DawnNews TV, Dec .31, 2011.

Many lawyers privately agree with this view but balk at expressing their opinions publicly, afraid of antagonising the courts on which they depend for their living. “They have to plead before these same courts for relief for their clients,” says Asad Jamal. “No one wants to risk getting their backs up.”

The court’s attitude to Asma Jahangir was downright hostile, he observes. “She stood for three hours before they let her speak, and she barely said a few words when they cut in, they basically didn’t let her speak”.

Regarding Asma Jahangir’s refusal to appear before the Commission, Asad Jamal notes that for one thing, she had expressed her distrust of the Commission, and secondly, its proceedings are expected along the lines of a criminal case, which is not her area of expertise.

Last but not least, it is a matter of grave concern that Husain Haqqani, his lawyer Asma Jahangir, the columnist Marvi Sirmed and others who have taken a stand in this issue that counters the view propagated by the security establishment, find themselves at serious risk in Pakistan.They regularly receive threats to their lives. A highly dangerous situation in the current climate in Pakistan, where rule of law leaves much to be desired.

(ends)

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6 Responses

  1. “Army following policies set by the civilian elected government, not the other way round.” That would be an ideal situation but in order to make that equation work, both ends need to be corrupt free and accountable. If 2 people are left lawless, the powerful one will naturally subdue the other.

    IMHO, we never had a true democratic government which was corrupt free and held accountable.

  2. Rule of law does not mean that one has right to block the revelation of truth on the basis of technitalities of law. Commission is holding proceedings in open court and it comprises of the chief justices of the high courts which ensures due process of law. Moreover, it is settled law that technicalities should not be allowed to obstruct the way of justice. In my view, important point to appreciate for objective analysis is that the Commission is not producing, creating or framing new evidence but it is unearthing the existing evidence which has not been disclosed. If one has done any thing one should justify and defend it but insisting on a supposed right to hide and conceal things from public, courts and paliament is difficult to jsutify on the touchstone of reason and lojic. Public has right to be informed of the true facts which is also called freedom/ right of information. The above view is not meant to offend the worthy lawyers, intelectuals and writers who may have a different view.

  3. [...] By Beena Sarwar [...]

  4. [...] ‘Memogate’ commission should examine existing evidence, not create new evidence [...]

  5. Why not invoke Art. 6 of the Constitution against the culprits who are suspected of planning to go against it. But the problem is the enforceable part of the Constitution against the mighty is only a ‘Fatwa’ and that very Fatwa is based on the principle of ‘Might is Right’.

  6. Attacking judiciary is a fad. Right to Information is a fundamental right which the petitioner is entitled to enforce. Some people want to write judgement themselves and lower the image of the judiciary in order to become martyrs. I see nothing legal in this so-called deconstructing the memogate put forward by Asma Jehamgir. There is a clique that have

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