Whatever else it does, Memogate does this: it points to one of the most fundamental issues that our country has faced in its 64 year history. This issue is at the root of so many challenges that our nation is facing that, perhaps, it should be the only topic of intellectual discourse with a view to having it clearly articulated and understood. In my mind, this fundamental issue is the balance of power between civilian and military leadership.
From what I have read and heard, there is very little debate that the memo affair needs to be investigated, the truth uncovered and individuals who have broken the law be punished. Where there is debate, however, is: (a) the process that ought to be followed to conduct this enquiry; and (b) whether other allegations by Mansoor Ijaz, particularly those related to the DG ISI’s Middle Eastern tour, should be included in the enquiry.
What we hear on television and read in the newspapers are questions about whether the Supreme Court is under some kind of political or military influence, and about why other, perhaps more important, cases that are pending with the Court are not progressing at the speed with which the memogate matter seems to be moving. We hear about why, when Hussain Haqqani resigned as a result of the allegations, Lt. Gen. Pasha did not. There are also questions about whether the Chief Justice has some kind of personal vendetta against President Zardari. Once you finish throwing in words like “treason”, asking questions about Musharraf’s deals with America, talking about the Mehran base attack and the Abbottabad incident, demanding the death penalty and describing how all civilian rulers made deals with the establishment to come into power, the waters, that were already muddy to start with, become completely impenetrable.
At its foundation, memogate is about a power struggle between the civilian government and the military. I am sure that no one will argue that the balance of power in Pakistan needs to be adjusted away from the military establishment and in favour of the elected civilian leadership. Democracy has had a patchy past and has never really had a chance to evolve and mature, with various military dictators, hand in glove with their US puppet-masters, deciding that they were the panacea that the country needed to solve all its troubles. And when a democratic government was given a chance, the elected leadership entered into compromises with and sought the help of the military to come to power. And after they did, they focused their efforts on increasing their own personal wealth, leaving behind a legacy of incompetence, cronyism and corruption. Which led to strengthening the hand of the establishment, allowing them even more leverage. Whenever civilian leaders tried to increase their sphere of influence, the military stepped in and took over.
This balance needs to change. Pakistan now needs credible civilian leaders, backed by a popular majority, who can have a mature dialogue with the military and establish, once and for all, that the Chief of Army Staff and the Director General of the ISI report to the Ministry of Defence and the Prime Minister, not the other way around. At the same time, the military needs to understand and accept the limitations that the constitution imposes upon it. I see this has already started to happen. Imran Khan has emerged as an alternative, a democratic “third force”, whose vision (however immature and flawed it may be) seeks to end corruption, establish civilian control over policy and work to build institutions in accordance with their constitutional roles.
On the other hand, while the military leadership understands that martial law, whether overt or the Musharraf model, will no longer be accepted by the people of Pakistan, they still wield significant control, directly and indirectly. Using “cloak and dagger” techniques of influence and intrigue, is something the establishment has been very good at historically, and these techniques have served them well in the past. Now, increasingly, these techniques are coming back to bite them in the backside. Admiral Mike Mullen’s blunt statement about ISI’s relationship with the Haqqani network, the May 2nd raid in Abbottabad that saw the world’s most wanted man in Pakistan’s military backyard, claims in Mansoor Ijaz’s memo that Lt. Gen. Pasha was visiting Middle Eastern leaders to gain support for a military takeover, the uproar over the death of Saleem Shahzad and recent revelations by prominent journalists in of threats from security agencies are all indicators that old techniques can now no longer be employed with impunity.
This civil-military struggle in Pakistan has led to a very serious side-effect: the sanctity of the constitution has been diluted. On many an occasion, the constitution has been amended, violated, suspended, blatantly ignored and treated with disrespect. It has come to be seen as a law, like any other law, to be bent and broken by the powerful and the influential, and used by them to serve their purposes. If someone were to disrespect the Pakistan flag or not stand up when the national anthem plays, that is seen as disrespect, but people do not understand the importance of the constitution and the respect that it deserves.
The constitution is the foundation of government and all laws and regulations in force in the country need to be based on the principles laid out in the constitution. It acts like a contract between the government, whose officials (including the armed forces) swear an oath to support and protect it, and the people. It limits the behavior of those in office so that they cannot misuse and abuse the powers that vest in them by virtue of the positions they hold and it guarantees each citizen certain fundamental rights that no one should be able take away or violate. It should be seen as truly sacred, and the people, government and military should consider it their fundamental duty to support and defend it.
The petition that the Supreme Court has been hearing has been filed under Article 184(3) of the Constitution of Pakistan, which says:
184. Original jurisdiction of Supreme Court.-(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
Explanation.-In this clause, “Governments” means the Federal Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.
The position that Asma Jahangir, as Hussain Haqqani’s lawyer, had taken was that the petition was not maintainable and should not be heard by the Supreme Court at all because Article 184(3) requires someone’s fundamental rights to have been violated, which was not the case and that, as the issue is so deeply political in nature, a parliamentary committee would be a more appropriate enquiry forum for it. In its ruling yesterday, however, the Supreme Court set aside arguments that it could not interfere in matters involving deep political questions and that a violation of a fundamental right was a must to invoke its jurisdiction. Asma Jahangir has bitterly criticised this, calling it a “black day” and said, “This is the most disappointing judgment. National security has been given priority over human rights.”
This is one of the issues that are being debated. If fundamental rights are going to be subservient to national security and if this judgment of the Supreme Court in some way furthers this idea, it is indeed worrying. If the constitution is sacred, at its core are the fundamental rights of all citizens that are guaranteed by it, and these need to be protected from all attempts at making them secondary to anything else. In addition, the process being adopted to institute the memogate enquiry appears to be rather unusual. For someone under suspicion of an illegal act, the usual process would be to register a case, for the police or FIA to conduct an investigation, prosecute the individual and bring the case to the lower courts and to prove his or her guilt. Until they are proven guilty, through this process, they are deemed to be innocent, and even after lower courts pronounce their verdict, they have the opportunity to appeal to higher courts until, ultimately, the Supreme Court has the final say, usually on matters of law, matters of fact having been established already in the lower courts.
In this case, however, the Supreme Court has set up an enquiry to establish facts. What happens next is unclear to me. If the enquiry determines that Haqqani was involved, he cannot be deemed to be guilty at that stage, as that can only happen after a court announces that verdict after giving him an opportunity to defend himself, with the burden of proof being on the prosecution. So, an FIR will need to be registered and a trial will need to take place to establish his guilt and the prosecution will need to take place through the lower courts, the process of appeals will need to be exhausted and only then can a verdict be finally delivered.
When any institution starts to interfere with the operation of the law, considering itself to be the “saviour” in some way, whether it is the army or the judiciary, alarm bells need to start ringing. Nobody is above the law and nobody should be allowed the right to supersede it no matter what the circumstances. Even if it is expeditious to do so, even if an immediate issue can be satisfactorily resolved by taking such steps, the temptation has to be resisted. Because, in the long run, such acts undermine the constitution, reduce the importance of following the law and allow individuals room to go on ego trips that violate fundamental rights of Pakistani citizens.
This drama, I feel, will keep us occupied for a while, and prevent us from focusing on the core issue, which is the need to find credible, honest civilian leaders who can establish the rule of law and the supremacy of the constitution, including over the military. Unfortunately, this is a part of the evolution we must go through to become a mature democracy and the lessons we learn from memogate will ultimately help the nation gain its awakening and will be driver of positive change in Pakistan.