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WOULD THE SUPREME COURT EXERCISE JUDICIAL RESTRAINT IN MEMO CONTROVERSY?

Mohammad Akram Sheikh
Friday, November 25, 2011

The outcome of the Haqqani Memorandum of 10th of May has travelled far beyond its intended destination. While the Ambassador Hussain Haqqani had to be summoned to appear for a probe before the Trioka and answer their questions, one of the most outstanding features of this episode was that on 22nd October, 2011, General Pasha undertook a visit to London for personally collecting evidence from Ejaz Mansoor, rather than deputing one of his deputies to do this.

The involvement of President Asif Ali Zardari will only depend on the testimony of Ambassador Haqqani and attendant circumstances, although there is no denying the fact that the incumbent President has been indirectly trying to achieve what has been directly set out in the Memo of the 10th of May.

Ambassador Haqqani who had catalogued various news items of the Press and termed them as his creative contribution in his book “Mullah and the Military Alliance”, been canvassing for a while in U.S. that he was available to act against Pakistan Army, and that his choice as Ambassador by the elected Pakistan People’s Party Government was also calculated to give advantage of his peculiar position cast to the U.S. Administration and the think tanks around.

Unfortunately, he became the first casualty after the article of Mr. Ejaz Mansoor in the “Financial Times”.

Pakistan Muslim League (N) Qaid Mian Mohammad Nawaz Sharif and two stalwarts of his party, Senator Mohammad Ishaq Dar and Khawaja Muhammad Asif have also filed petitions in the Supreme Court demanding of the Apex body to carry out a probe by itself and unravel the Memo conspiracy. The petition is quoted to have prayed in the name of Pakistan, in the name of those who founded it with their sweat and blood and in the name of those who are still sacrificing their lives for its glory”, that “the ones responsible or involved in initiating the process leading to the secret memorandum, authoring the same; providing any assistance whatsoever in the process and the ones blessing or approving the act, be graciously identified by the Supreme Court.” That those responsible for “the dreadful conspiracy to domonise, ridicule, malign and consequently demoralize and terrorise and resultantly to destroy the invaluable and valiant Armed Forces of Pakistan; to trade away the sovereignty of Pakistan and to barter away the very existence and the future of Pakistan which also amounts to waging a war against Pakistan, should be unearthed”.

“The culprits exhibiting grave disloyalty to the state and the people of Pakistan and who are found guilty of the crimes should be brought to book.”

“The memo controversy is not a trifling matter as some in the government and the Ambassador has tried to make it out to be the truth in this matter can reach the Presidency and, who knows, many others.

Contents of the memo, the petition said, were designed only to demoralize and cow down the armed forces.

“The memo has threatened the very foundation and the future of Pakistan by trading away its sovereignty for petty personal gains. The act in question of the ones who initiated the memo; the ones who rendered any help or assistance in the matter and those who blessed or approved of it are culpable for acts of high treason against the state and the Constitution.

“They are also culpable under other relevant laws of the land, besides being guilty of disloyalty to the state contravening the relevant constitutional command,” the petition contended.  

It is incumbent on the Supreme Court to carry out the burden of such investigation and award the consequential relief prayed for. The question is looking at the constitution, whether such an exercise is possible except through an investigation by the Supreme Court?

It has not been denied by a stalwart jurist in PPP that President or any one committing an offence of a heinous nature is not immune from accountability and could be tried like President Bill Clinton or President Nixon. Ch. Aitezaz Ehsan, the Member of CEC and a long standing member of the party has publically said before the electronic media that the President Zardari could be investigated though he could not be prosecuted for offence as of now.  

But can any other agency under the control of the Federal Government be expected to investigate highly placed individuals, and make genuine attempts to unravel the truth?  

It cannot be denied that in Pakistan there is no institution like “An Independent Counsel” in the U.S. The challenge to the appointment of Mr. Fasih Bukhari as Chairman, NAB and even otherwise the NAB having been rendered a tooth-less body by the incumbent regime after the notorious NRO and before that a biased persecution/ which hunting agency against opposition by Gen. Musharraf.  

Looking at the investigation by FIA of cases like NICL and others, the fate of investigation in to the controversial Memo is not difficult to imagine, therefore, the only way possible to reach the truth rests in the exercise of the authority by the Supreme Court under Article 184 of the Constitution read with Order XXXII, Rule (9) and Order 33 of the Supreme Court Rules, 1980. While Order XXXII, Rule (9) empowers the Supreme Court to order local investigation by a Commissioner or Commission appointed by the Supreme Court, Rule 33 removes all fetters on the powers of the Supreme Court to issue any direction in matters of practice and procedure for a just and fair inquiry. The Supreme Court could appoint former Chief Justices, Judges, former Presidents, Prime Ministers or men of impeccable integrity as Members of this Commission to carry out the probe and report its finding to the Hon’ble Supreme Court and if as a consequence of such probe it finds out that any person including President Zardari has been instrumental in The crafting and transmission the Memo of 10th of May in any manner whatsoever, then Supreme Court has undoubted jurisdiction to pass any consequential order to the Federation for any consequential action that it may consider proper. The Federation is reputed to have been very reluctant executioner of the Supreme Court’s judgments and Supreme Court is conscious of this defiant behavior.

The Apex Court has also been reluctant to pass an order picking up a direct clash with this Government despite its deliberate defiance of SC orders and because of its commitment to constitutional governance. But suppose the President Zardari is found, to have conspired in the issuance of this Memo which straightaway throws out the country’s sovereignty and undermines its institutional integrity, would the Supreme Court still continue to exercise caution and “judicial restraint”???