Memogate: the quality of justice is not strained

Appeared in Daily Times on Monday March 26, 2012 as weekly BAAGHI


After more than five months since a preposterous ‘memogate’ was disclosed, Pakistan’s media and honourable Supreme Court are still struggling to make headway in a conspicuously tilted case. After an October 10, 2011 article by one Mansoor Ijaz, some in Pakistan considered it as an opportunity to take the sitting government to task. These included sections of media, political parties and military establishment. From what was too obvious to ignore, it clearly looked like an agenda driven home-grown ‘gate’ from the outset.

What was most unfortunate was that the superior court allowed itself to be dragged into this agenda-politiking. During its hearing in the Supreme Court, a far-sighted Asma Jahangir had warned the judiciary to not ‘grope for the jurisdiction’ under the public interest litigation window just to drag itself into this highly political case. What appeared as a trap for the incumbent civilian government is now proving to be a vise around the necks of those who tried to use it.

In an 83-page statement, Mr. Husain Haqqani, former Pakistani Ambassador to the United States, has detailed his response denying the allegations levelled against him by Ijaz. The statement, which was submitted to the court on March 22 for its hearing today, Monday March 26, explains Haqqani’s response in 85 points. After the denial of Ijaz’s claims, Haqqani continues that he “waited until now to submit a detailed statement before the commission to ensure that the purported evidence supporting Mr. Ijaz’s claim is first on the record before I respond to it”.

From the affidavits to the apex court submitted by General Kayani and General Pasha, then DG Inter-Services Intelligence, it is clear that the latter made a visit to London in order to ‘investigate’ the memo. Ijaz had claimed in his October 10 article to have drafted a memo allegedly on behalf of Haqqani and delivered the same to General Mullen, then Chairman Joint Chiefs of Staff. In the said affidavits, both the generals had claimed that Ijaz had ‘enough corroborative material’ and had been examined by General Pasha. According to Pasha, his meeting with Ijaz took place on October 22, while he reported back to the president on November 18. In his affidavit General Kayani said that he had urged the prime minister to take action urgently as time was of the essence and “the sooner we found out the facts the better it would be”. But it was quite strange that both the generals had wasted around 22 days — three weeks — that were ‘of the essence’, in doing no one knows what, before they could report back to the prime minister on November 13 and the president on November 18.

Even after both the generals, one of whom was leading the ‘intelligence’ of the country, submitted their affidavits to the court, they forgot to submit the ‘enough corroborative evidence’ that they claimed to have ‘examined’. It was this failure and a terrible collective oversight on the part of sections of the memo-euphoric media, the petitioners and probably the judiciary as well, who did not ask the generals to provide the evidence they had so blindly trusted against the country’s hardworking and committed ambassador having no history of betraying the nation’s interest. Even five months after the fishy ‘memogate’ emerged, every one of us is still waiting for the mythical Gul-e-Bakawli of the Arabian Nights that comatosed the brilliance of the good general. But we are not that naïve otherwise. Remember the recent re-emergence of the so-called ‘Mehrangate’? Referring to the affidavits submitted by General Asad Durrani and others, one of the judges on the bench passed an appropriate remark that mere affidavits could not be taken as evidence. But on guesses, the appropriateness of such arguments has to be applied with careful selection.

It not only sends chills down the spine of an ordinary Pakistani to even imagine that our collective security has been in such simple (if not wily!) hands but also rots much of the meat from most of the assertions made in the past by the ‘intelligence’ leadership, e.g., foreign hand in Balochistan etc, which obviously goes without any presentable evidence.

Now when all sides have failed to present any evidence to prove the claims made by Ijaz, it is sort of embarrassing for not only the military establishment, the media, the petitioners but also for the apex court, who in a departure from all judicial precedent, allowed this ‘star witness’ to record his statement outside the country. This would probably be the first and the only case in Pakistan’s judicial history when not only the counsels but secretary to the Judicial Commission (which is part of the judiciary), goes abroad to hear a witness who has an established track record of spreading venom against Pakistan on many occasions. As reported in newspapers on Saturday, Haqqani has requested the court to record his statement on video just as it did in the case of Ijaz. It is going to be a difficult ride for the apex court if it decides to deny Haqqani’s request.

The independent judiciary that we sacrificed so much for has to stand its ground. No matter who the petitioner is, no matter who submits the affidavit, no matter what the media screams, the judiciary will not let its independence be compromised. That is one thing that all of us have been led to believe. If the standards of justice are made subjective and selective, it will have far-reaching effects on judicial freedom. The media should resist the urge to become a power player, just as the judiciary should refuse to become a tool to serve the political purposes of various contenders for power. In this particular case, the judiciary could not appear as objective as it should have been. Right from accepting the petition and failing to reject it on very strong technical grounds, to facilitating Ijaz unprecedentedly, one could not see the norms of equality and justice being followed by all parties. This is one more test juncture of this case.

It might not affect Haqqani too much if he records his statement in London, Paris, NewYork or Islamabad. But if the commission fails to establish itself as a forum of justice, blind to all kinds of subjectivity, the effects will be on the judiciary. As a humble part of the movement for the restoration of the judiciary, the writer is nervously waiting with fingers crossed to see who wins — the judiciary or the egocentric politics of a few who are using the judiciary for their own selfish motives.