Memogate: Stop Insulting Our Honourable Judges

The News International
Thursday, January 05, 2012

Once again, Husain Haqqani has outdone himself. He has sold himself, within a matter of weeks, to liberal sections of Pakistan media and legal community as a man who spent all his life fighting for liberal values, human rights, and supremacy of democratic institutions over military establishment. A man who, only because of his liberal beliefs, is the target of an ISI conspiracy, a conspiracy that is being implemented by the opposition leader and by the Supreme Court judges on the directions of General Pasha.

From the level of passion that is being expressed by Asma Jahangir and other prominent liberal lawyers and journalists, it seems that if, God forbid, Haqqani is found to have lied about requesting Mansoor Ijaz to convey a message to Mike Mullen, it will cause such a fatal blow to the Parliament and democracy in Pakistan that it will directly lead to martial law and the forces for ‘security state’ will stand victorious and the dream of converting Pakistan into a welfare state will stand torn to bits. All just because Husain Haqqani will have been found to have lied on oath.

The object of this piece is just to indicate the need for a pause and reconsideration.

Is Haqqani another Asma Jahangir?

Just a few days after the military takeover of 12 October 1999, Husain Haqqani, known to me from his times and adventures in the Nawaz Sharif camp, visited my office in Islamabad. After N League, he was now enjoying a cozy relation with the new military junta. According to him, he had come to ask me to represent and defend the military takeover in Supreme Court.

Just before the military takeover, in my capacity as Supreme Court Bar President, I had sided with Chief Justice Sajjad Ali Shah in his clash with the government, of (N) Muslim League and as a consequence, had to suffer a lot, including a physical assault, leaving a scar on my right temple and plenty of blood on my white shirt, a part of my Court Dress, within the SC premises.

No one remembers those days because those were not the times of live round-the-clock news channels.

Knowing the above background, I was not surprised in being perceived as a ripe picking for defending the military takeover that ousted Nawaz Sharif government. Obviously, in his usual articulate manner, Haqqani justified his belief as to why military takeover had been necessary to save the country.

Let me remind the readers that this incident took place only about ten years ago.

Before giving my response, I called a friend of mine who carries credibility and respect for his integrity amongst liberal circles. When I refused Haqqani’s request, my friend, in the presence of Haqqani, asked me the reasons of my refusal. I said ‘it is a life long stigma for a lawyer to carry the brief of a general who has just broken the Constitution. The legal community never forgets such a thing and when I did not do any such thing during Zia’s Government, I certainly do not wish to start doing it now.’

It was during that meeting that Husain Haqqani, in his typical chatty and intriguing manner, started narrating how, in the days after the military coup, one of the senior-most lawyers in the country and he [Haqqani] had come to an understanding for their interviews with the Army team that was headed by Lt General Aziz These interviews were aimed at choosing suitable candidates to fill ministerial slots in the new military government. According to Haqqani, the senior lawyer agreed with Haqqani that during ‘his interview’, he would try to persuade the generals to induct Haqqani as Information Minister, provided he (Haqqani), during ‘his’ interview, pushed the generals to induct that lawyer as Foreign Minister. Haqqani complained that in the end, he discovered that that lawyer did not stand by his commitment and that he (Haqqani) was not chosen for the position of Information Minister, while that lawyer ultimately became an advisor to General Musharraf.

A few years later, I met Haqqani at a dinner that was attended by foreign diplomats and that I had arranged for the outgoing Political Secretary of the US Embassy. Sometime later, I learnt that he had gone to Washington, where he had set about developing a career as a lobbyist and a scholar.

Obviously, no wannabe lobbyist and scholar could earn credibility and acceptability in Washington by selling martial laws. Out came the book ‘Pakistan: Between Mosque and Military’, introducing a new Haqqani to Washington, a man who was not only a specialist on Pakistan affairs but who was also a die-hard supporter of civilian rule and democracy in Pakistan. With the enthusiasm of a convert, he had just discovered the evil side of military governments in Pakistan.

Not knowing his past, Americans embraced him and even Benazir Bhutto Shaheed too, ignoring his barbs from Nawaz Sharif camp, bought into the new Haqqani makeover. The ‘ideological’ journey from N League to the Army and then from the Army to PPP was thus completed within a few years.

Had the Army given him a chance, I wonder which book Information Minister Haqqani would have written about the great achievements of Musharraf era. ‘The Great Decade’? He certainly would have given a far better and more imaginative spin to the justification of Musharraf’s incarceration of Chief Justice of Pakistan.

It is in the above background that it is sad to see how Asma and liberal sections amongst lawyers and journalists are allowing themselves to be used to block and discredit any kind of an enquiry for determining whether Haqqani is telling the truth.

How dare Nawaz approaches our ‘independent’ judiciary for holding an inquiry into the matter. Nawaz could only have done it on the ‘farmaish’ of the Army and he is bound to regret it one day. And if nine honourable judges have decided to order an inquiry to determine certain fact, the only possible explanation is that all of them are taking instructions from Pasha!

By ordering an inquiry to see whether Mansoor Ijaz sent the memo to Mullen on Haqqani’s request (as claimed by Mansoor Ijaz) or did he send it without any such request by Haqqani (as claimed by Haqqani), how can Supreme Court be said to have delivered a serious setback to our struggle for a welfare state?

Imagine what if Mansoor Ijaz had made the same claim about the Indian Ambassador in Washington, a claim that would later have been confirmed as correct by senior officials of the US government. If later on, the Indian PM was to obtain resignation from that Ambassador and then treated the whole matter as closed, would the BJP leaders have allowed that to happen? And if on a petition of BJP, Indian SC had ordered an inquiry into the matter, could anyone have said that Indian SC had done so only because it was told to do so by Indian Army?

For the last two weeks, senior people in the government have been telling their close friends that their only weapon in the memo matter will be Asma Jahangir, who will not only attack the Army but will also make SC and thus the whole inquiry controversial.

It was thus that the government got Asma Jahangir, in her capacity as former ambassador’s counsel, first to place before the highest court of the land her own personal views about the role of military establishment and ISI in the history of this country and then to condemn SC as being under the control of our military and TV show lack of confidence in the integrity and bona fides of chief justices of three high courts. It was most reckless and unfair of Asma to do this, that too without any evidence to back her claim. By doing this, she has done more damage to the judicial organ than this government has been able to do in the last three years.

What Asma said in SC should have been said by the PM in the Parliament. And she wanted Parliament to do things, i.e. determine facts through a formal inquiry, that could more appropriately be done through a formal judicial inquiry.

It seems that praising Asma for her courage and begging for her help through tears, dropping odd verses of Faiz Ahmad Faiz on Twitter, and thanking individual journalists from PM House, is all it takes to get all these sincere and intelligent people to start questioning the integrity of nine judges of SC?

And because of Asma, several senior journalists with liberal approach, and many prominent lawyers with national standing have all joined the campaign against the judiciary, without realizing that we are trampling on the very edifice that we ourselves built from the ruins that were left by General Musharraf, that too without feeling the need to back such allegations with proof. While the present judiciary is still far from being perfect, we are, albeit slowly, indeed getting there.

A courageous liberal journalist asked in her show exactly what was wrong with the contents of the memo. Nothing, except that it was purportedly being sent to a foreign government and that too, as part of a bargain. As head of an elected government, the current PM was and is within his rights to announce a new security policy for Pakistan, and to make changes in the current security establishment, the way that his government thinks fit and, to do so after an open debate in the Parliament.

And one of the leading and most respectable journalists found ground to appreciate what Asma has said about the ‘bias’ of SC judges and about chief justices of high courts. What grounds? Is it not being realised that unlike the brute physical force of the military, civilian institutions draw their power from a voluntarily practiced fiction of power? There is no courage in insulting an unarmed judge or unarmed speaker of the National Assembly. Otherwise, a dozen national assembly members can assault a speaker and a dozen lawyers can abuse any judge of the Supreme Court.

Perhaps many will appreciate the fact that the Supreme Court has no objective powers and no weapons whatsoever. Whatever power it has, comes from voluntary and conscious deference of us lawyers and journalists, forcing the rest of the state functionaries and ordinary citizens to submit to this fiction of court’s powers.

It is from this fictional powers that our expectation of establishing a law-abiding society draws credence and possibility. If Asma Jahangir was so keen for supremacy of civilian institutions over the military, she should try to promote the fiction that civilian institutions are very powerful, instead of holding them to ridicule.

On the other hand, instead of maligning our judiciary, why did we fail to appreciate that it was another great achievement of our movement that the generals heading and controlling our nuclear Army had to request the SC to inquire into the facts of the matter? What more can demonstrate the supremacy of a civilian institution?

Just because Asma was not pleased with the order of SC, it was not appropriate for her to trample over the most prestigious of civilian institutions. Is it not physical power that gets stronger when civilian institutions get weaker? And what is the end objective? To completely destroy the standing of courts and to replace them with what? Martial law and military courts?

Improving ratings of TV programs by encouraging hawks to condemn and ridicule the judiciary flies in the face of our desire to have a law-abiding society. If the present British government decides to ridicule and insult their judges, who can stop them? No one, except collective national condemnation, obviously led by legal community and journalists.

And since when has it become ethically acceptable to claim that other people’s decisions and actions are led by ulterior motives? Can Asma accuse any senior lawyer of the kind of dishonesty that she has found it appropriate for the senior-most judges of the land? And in a land where she is willing to insult judges of SC if they decide against her, she complains that people do not have respect for human rights.

Why our vibrant and independent intellectuals and mediamen have failed to question as to how, all of a sudden, Justice Iftikhar Mohammad Chaudhry, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Jawwad S.Khwaja, Justice Tariq Pervez, Justice Mian Saqib Nisar, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry, Justice Muhammad Ather Saeed, all have started taking directions from the Army?

In fact, all these allegations are absurd to the level of being comical. And what about Justice Qazi Faez Isa? And what about the son of Justice Hamoodur Rahman? The burden is on her to produce evidence to show how all of them are taking dictation from the Army. Otherwise, she should openly withdraw her allegations and, like any responsible lawyer and citizen, she should tell her client to prove that Memo was indeed nothing more than a piece of paper. And she should do it before, ‘Honourable’ Husain Haqqani also expresses lack of confidence in the due process of our ‘civilian’ courts.

The writer is a senior Supreme Court Advocate and former president of the Supreme Court Bar Association.