Obsession with ends

Events of the last week have reaffirmed that our national consciousness still remains singularly obsessed with ends with little regard for the means elected to pursue them. We are not curious about discovering facts and interested in deciphering the truth if it doesn’t hurt those we wish to put to rout. We show no fidelity to principles if giving them effect won’t produce the outcomes we desire. And we are not concerned about strengthening state institutions or supporting norms and conventions that encourage them to stay within the four corners of their rightful domain, if such institutional development and behaviour militates against the immediate-term political results we crave.
The outrage witnessed in the aftermath of Memogate and the Nato attacks is not just directed at the United States. Citizens of Pakistan are equally angry with their own rulers – civilian and military – for complying with foreign diktat and selling out the interests of this country and its people to entrench themselves in power. Our right-wing crazies would have us believe that the civilians rulers are a security risk and can never be trusted with national security that they keep conspiring to undermine. They won’t say a word about the generals, who willingly surrendered our security interests at the slightest persuasion by the Americans or the need to hold them accountable.
And our liberal fundamentalists deride those who get upset at the idea that our envoy in Washington might have been engaged in monkey business inviting the Americans to appoint a national security team in Pakistan of their liking and expand their military footprint within our country. They feel no need for the country and its people to find out whether or not our ambassador, either acting alone or with our government’s support, made the illicit offer. They make two conflicted arguments. One, if the civilian government had the authority to do what the memo offered, no wrongdoing can be claimed. And

two, even if there was a conspiracy, there is no further diligence required, as it didn’t work.
What they conveniently ignore is this. One, a conspiracy is a crime whether or not it succeeds. And two, if the argument is that the civilian government had the authority to sack the existing national security team and replace it with one more amenable to US interests, let the government come out and say so. And let people decide how they feel about a government that offers to exercise the sovereign authority it is vested with in accordance with US instruction in return for being protected against its own military. Why should we have to wait till the US declassifies its official archives in a few decades to discover the truth about the interaction of the Musharraf and Zardari regimes with the US?
It is in this backdrop that the Supreme Court’s cognizance of Memogate needs to be critiqued. The arguments on whether or not the apex court should have gotten involved are focused on the outcome and apprehensions regarding the consequences of an inquiry into the matter, and not on principles and institutional competence. The Supreme Court’s decision to hear the Memogate petitions and its interim order has attracted three sets of criticism. One, that the court has no business engaging with Memogate, especially when a parliamentary committee is seized of the matter. Two, the interim order was passed in indecent haste and compromises due process.
And three, (more in the nature of an apprehension) that the Supreme Court might become the agent of regime change. Let us analyse these sequentially. The first criticism is devoid of merit. The Memogate investigation has two aspects to it: determination of verifiable facts; and whether such facts attract any legal consequences. Determination of facts ordinarily falls within the domain of the executive. Given that there is an allegation here that the executive, at the highest level, might be complicit in the Memogate conspiracy, it makes sense for another coordinate institution to conduct the factual inquiry.
Now factual inquiries don’t fall within the exclusive domain of parliament or the judiciary. Further, neither of these institutions has the means or the expertise to undertake a technical investigation and both would need to seek expert assistance. Courts order and oversee investigations all the time and parliament and its committees also have the mandate to order and superintend investigations. The report of a parliamentary investigation is expected to be bipartisan and one supervised by the court nonpartisan. There are advantages of both. If the objects of an investigation were to solicit policy recommendations or conceive new legislative proposals, the court would be ill suited to oversee it.
But if the purpose is to determine whether alleged actions are in breach of the law, as it exists, the involvement of a parliamentary committee can conceivably add little value. Interpretation of the law falls within the province of the judiciary. It is ultimately for the court and not parliament to determine whether the memo, if found to be true, amounted to abuse of public authority and contravened provisions of the constitution and the rights of Pakistanis. And further whether such alleged contraventions fall within the scope of Article 6 of the constitution.
The argument that the Supreme Court shouldn’t have allowed hearing of the Memogate petitions without first determining their maintainability raises the chicken-and-egg problem. If facts establish that the memo was genuine, conceived by former ambassador Haqqani and the court finds that it amounted to breach of the law and fundamental rights of citizens under the constitution, the Supreme Court would have jurisdiction. If not the Supreme Court could rule that this isn’t a case fit for the court to exercise authority under Article 184(3). But to make such determination either way the court would have to hear the matter.
The Supreme Court’s interim order in the Memogate case, however, is not without infirmities. One, the court ought to have issued formal notice to the respondents and passed the interim order in their presence as this wasn’t a case where injunctive relief was required to pre-empt any irreparable loss. Two, whether or not conceiving and sending the memo, if verified as alleged, is “tantamount to compromising the sovereignty, security and independence of Pakistan” requires judicial determination, and can’t thus be outsourced to the commission appointed, as proposed in the interim order.
And finally, restraining Husain Haqqani’s freedom of movement by placing him on the exit control list, without holding that he is a flight risk or affording him a right to be heard seems to compromise due process of the law.
Interim orders are not final rulings or binding precedents and can be modified during the adjudication process in the interest of justice. But the weaknesses of the interim order in the Memogate case and the haste that accompanied its passage has provided the judiciary’s detractors within Zardari & Co., with additional talking points to castigate the Supreme Court as a proactive agent of regime change. If this impression gains traction, it will be the most devastating blow to the independence of judiciary and rule of law in Pakistan that this country has fought hard to preserve since 2007.
Our judiciary has done a tremendous job over the last few years in entrenching constitutionalism and expanding the scope of fundamental rights by transforming the right to life, dignity, equality and freedom of business and trade into meaningful endowments. But so long as these rights are selectively enforced only against blundering civilians and not against the khakis, it will be impossible to expect people to see rule of law as a true shield for the weak.

Email: sattar@post.harvard.edu