As appeared in Daily Times on January 9, 2012 as BAAGHI, my weekly column.
Asma Jahangir took many by surprise when she refused to appear for Husain Haqqani in the memo case before the judicial commission made by the Supreme Court (SC). More surprising were her blunt statements about the judiciary privileging the ‘establishment’ (a less risky term for our all-powerful military).
The hurriedly drafted short order of December 1, 2011 by the SC raises many questions in an ordinary mind, which the judicature must address. When decades pass by without even having a hearing of extremely important petitions such as the one by Asghar Khan, the speed with which the memo case was heard by the newfound ‘free judiciary’ leaves one concerned and worried. So hasty and so factually wrong the draft of the first order was that one was pushed to think that the ‘doctrine of necessity’ has been replaced by survivor tactics. The notorious doctrine of necessity, as the newborn lordships declared soon after they got their jobs back after civil society’s movement purportedly for the independence of judiciary, had been buried for all times to come.
The theory of ‘Avagon’ seems to be operating here and the buried doctrine of necessity appears to have taken a new birth. When no one has any spine to confront the two most powerful men in this country, including the civilian government, why should the judiciary be expected to do so? When these two most powerful offices say that they think Mr Haqqani has some link with the memo, who would dare to differ? Who would dare to pass a judgement against the royal will?
When the two short orders of December 1 and 30 bore glaring spelling and factual mistakes, it embarrassed the judiciary. While getting the dictation on the drafts of both short orders, someone (the stenographer that is) did not even get the time to check the spellings of the name of General (retd) James Jones, neither was he given enough time to put the facts with accuracy. The December 1 order says Mansoor Ijaz said that the memo “was handed over to him by Husain Haqqani”. Mansoor Ijaz said no such thing. In fact, in his affidavit to the SC, he denied meeting Mr Haqqani and said he had only communicated with him electronically. The December 30 judgement says: “The text of the memo was published in the Financial Times on October 10.” It was not. Mansoor Ijaz’s op-ed was published that day — that is all. Not only that, but Blackberry Messenger (BBM) messages were repeatedly referred to as SMS in the first order. The ISI’s knowledge about electronic communication seems limited or dated.
The haste with which the honourable court heard the case and spurted out these short orders should also be used as a role model for thousands of cases that remain pending in the apex court to date. Their pendency might be attributed to their ‘non-sensitive’ nature or maybe because they do not guarantee ‘breaking news’ treatment. But in all that rush, what got compromised was the court’s own credibility. When being an appellate court, you insist on becoming an investigative agency, you must realise that this throws the judiciary at risk of becoming controversial.
We got an order for a one-man investigative forum comprising a former FIA official who eventually refused to be a part of this investigation. One wonders what changed in the preceding one month that on December 30 the same bench decided to try another forum manned by the chief justices of three higher courts. Or is it that one FIA man is equivalent to three higher court chief justices? One also wonders why the apex court did not trust the Parliamentary Committee for the preliminary probe in this case. While admitting that nothing implicates Mr Haqqani so far, he was still barred from travelling abroad without prior permission; the court failed to give similar treatment to the spy chief who is clearly implicated by name in the said BBM conversation as the one who got permission from the Arab states to subvert the constitution — a clear cut case of Article 6 of the constitution.
Alright, we understand it is difficult — impossible — to bar anyone from the mother of all institutions to travel abroad, but what stopped the honourable court from asking for the ‘investigation’ report that the spy chief claims to have prepared after his unauthorised visit to London to see Mansoor Ijaz? No one, including the chief executive of this country, appears to have seen this report, yet both the army chief and the DG ISI have been insisting on linking Mr Haqqani with the so-called ‘treasonous’ memo. The report was not even shared with the chief justice of Pakistan. To an ordinary flag-bearer of the supremacy of law and independence of judiciary, this looks a bit like contempt of the highest judicial authority.
Considering all the problems the judiciary might be having in confronting an arrogant institution and stopping it from usurping the authority of constitutional democratic government, one feels sympathetic to the current judicature. But then why must we call it a free one? Why do we not help it become independent and free of all influences, not in cosmetics but in reality? But when the judiciary drags itself so faithfully into a thoroughly political case, who could help? All we can do is, recite four Quls and stay silent like we have been since the last 64 years.