Asma Jahangir’s Stance Legally Untenable

Asma Jahangir has a redoubtable and well-earned reputation as a champion of human rights. Most recently, she has garnered much praise for her criticism of the Supreme Court’s decision to set up a commission on memogate. I yield to no one in my admiration of Madam Jahangir’s courage; but she is wrong in this case.

To briefly recap the memogate issues, an article appeared in the foreign press in which one Mansoor Ijaz claimed to have handed over a memo dictated by Husain Haqqani —Pakistan’s then ambassador to theUnited States — to Admiral Mike Mullen, the then head of theUS armed services. Mr Ijaz has further said that the memo was given to him on the basis that it represented the sentiments of Asif Ali Zardari, the president of Pakistan.

The memogate scandal — as this imbroglio has been dubbed — wound up in the Supreme Court courtesy of a petition filed directly by Mian Nawaz Sharif under Article 184(3) of the Constitution seeking an impartial probe into the alleged scandal. The petition was resisted by Husain Haqqani as well as the Federation of Pakistan mainly on the grounds that the Supreme Court lacked jurisdiction.

On December 30, 2011, the Supreme Court rejected the maintainability arguments and instead issued a short order directing the formation of a three-member commission composed of the chief justices of the Sindh, Islamabad and Balochistan High Courts to “ascertain the origin, authenticity and purpose of creating/drafting” the alleged memo.

Asma Jahangir’s response to the short order has not held back any punches. According to news reports, she stated that this was one of the darkest days in the history of the judiciary. She further alleged that the nine judges of the Supreme Court were acting under the influence of the security establishment. Finally, she has announced her resignation as counsel for Husain Haqqani on the basis that she lacked all confidence in the judiciary.

Let me first begin by saying that Asma’s views should not be treated as constituting contempt of court. The Supreme Court of Pakistan now occupies a central role inPakistan’s politics and it cannot both simultaneously seek to hold centre stage and demand that it be immune from all criticism. The standard response to this from the judges is that criticism must be moderate. I disagree; the very essence of criticism is that it must be allowed to be immoderate, otherwise there is too great a danger of it becoming stifled. I obviously disagree with Asma’s views but I certainly believe in her right to express them as freely as she wants.

Having said that, let us now go back to the underlying issue. So far as I understand, the fundamental argument advanced by Asma on behalf of Husain Haqqani was that the matter did not fall within the original jurisdiction of the Supreme Court under Article 184(3) (which provides that the court may directly hear a matter if it is a matter of public importance relating to the enforcement of fundamental rights.)

Let us look at those two requirements separately. So far as the issue of public importance is concerned, it was conceded by Asma that if the memo had actually been delivered on behalf of the president then the president would be liable to be impeached. Self-evidently, the authenticity of a document capable of justifying the impeachment of the president is a matter of public importance.

The tricky part, actually, is the fundamental rights prong. The problem here from Asma’s perspective is that this requirement has become so diluted through judicial activism that it has become essentially meaningless. Major issues of public importance thus regularly bypass normal channels and head directly to the Supreme Court. This is not a legal development which I particularly like. At the same time, it is a fact of life which has been established through any number of cases.

In this particular case, it is important to note two things. The first is that the existence, the contents and the delivery of the memo are not in dispute. Instead, the only dispute is whether Husain Haqqani had anything to do with the preparation of the memo or whether the memo is entirely a figment of Mr Ijaz’s imagination.

The second point is that the Commission set up by the Supreme Court cannot determine the authenticity of the memo. Instead, the most the Commission can do is investigate the authenticity of the memo and give its report. The conclusions in the Commission’s report may form the basis of criminal charges filed against Mr Haqqani, but those charges would still be adjudicated by a competent court after a full trial.

In short, what the Supreme Court has short-circuited is not the trial of Husain Haqqani but the investigation into his alleged crimes. Is this textbook procedure? No. Is it unprecedented? No.

Criticism of the Supreme Court’s order therefore boils down to the question of whether or not the court was justified in taking over investigation of the memo. Given the fact that the memo can realistically form the basis of a presidential impeachment — as conceded by Asma herself — I personally find the Supreme Court’s decision to try and ensure an investigation of the highest possible standards to be prima facie reasonable.

This, in turn, brings me to the final point. Asma Jahangir has summarily dismissed the Commission as not being independent. I do not think that the three honourable members of the commission deserve this treatment. Each of the three is a distinguished jurist with an impeccable reputation. In the absence of any specific, substantiated allegations of bias, they deserve better than to be castigated as establishment stooges merely because Madam Jahangir is unhappy with a particular decision.

Two years ago, when Asma Jahangir ran for president of the Supreme Court Bar, I proudly voted for her. I am still proud of her achievement as the first female president of the SCBA. I am not proud of her recent tantrum. As a senior and eminent lawyer, she owed a duty not only to her client but to the institution of the law. I think she failed that second duty.

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