Asma Jahangir’s resignation as Husain Haqqani’s lawyer in the memo case surprised quite a few people. She had originally taken the case as a matter of principle based in her experience as a respected human rights lawyer. She reviewed the facts of the case, looked at the way it was proceeding, and immediately became concerned about the precedent that was being set. From the beginning until the end, she said her concern was not specific to her client but to the greater principles of constitutional law. Ironically, what has not been discussed much in the endless analysis of the memo case are not the facts – who was involved, who knew what and when did they know it – but the principles of the case.
Please allow me to clear up one apparent misconception about this case: There has been no proven evidence of anyone’s involvement except for three people, all Americans: Mansoor Ijaz, Gen Jim Jones and Adm Mike Mullen. That is supposedly why the Supreme Court has set up a commission – to investigate for evidence. If the evidence was already proven, there would not be need for an inquiry commission, would there? But let us assume for the sake of this post that some genie will present to the court fool proof evidence that someone from the federal government was involved in the memo. Many people are suggesting that it constitutes treason under Article 6. Is this true?
According to Article 6 of the Constitution of Pakistan, “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.”
So we must ask which Article of the Constitution could have been ‘abrogated or subverted or suspended or held in abeyance’. The common answer is that the memo sought to put the nation’s national security under a foreign power. This is a serious charge, and as such we should take a moment to consider the facts.
Without defending what was in the memo, let’s consider what it said. It said President of Pakistan will order an independent inquiry into the allegations that Pakistan harbored and offered assistance to Osama bin Laden, that the findings would be made public, and that any officers or officials discovered to have helped Osama bin Laden would be fired.
Next, it said that the federal government will implement a policy of either handing over those left in the leadership of Al Qaeda or other affiliated terrorist groups who are still on Pakistani soil, or allow US military forces to capture or kill them.
As far as nuclear weapons, the memo said that the federal government would reinstate the policy originated under the Musharraf regime to bring Pakistan’s nuclear assets under a more verifiable, transparent regime.
Finally, the memo said that the government would eliminate a section of ISI that maintains links with jihadi militant groups and hand over anyone responsible for 26/11 to the government of India.
Now, anyone might agree or disagree with any one or even all of these items as matters of policy. But there is one undeniable fact – each and every one of them falls under the Constitutional powers of the federal government.
Article 142(a) grants that [Majlis-e-Shoora (Parliament)] shall have exclusive power to make laws with respect to any matter in the Federal Legislative List.
The Federal Legislative List is found in Fourth Schedule. Part I, Number 1 gives parliament the sole power to make laws with respect to any matter of
“The defence of the Federation or any part thereof in peace or war; the military, naval and air forces of the Federation and any other armed forces raised or maintained by the Federation; any armed forces which are not forces of the Federation but are attached to or operating with any of the Armed Forces of the Federation including civil armed forces; Federal Intelligence Bureau; preventive detention for reasons of State connected with defence, external affairs, or the security of Pakistan or any part thereof; person subjected to such detention; industries declared by Federal law to be necessary for the purpose of defence or for the prosecution of war.”
Part I, Number 57 gives parliament the sole power to make laws with respect to any matter of “Inquiries and statistics for the purposes of any of the matters in this Part”.
Therefore, the federal government has the authority to order an independent inquiry into the allegations that Pakistan harbored and offered assistance to Osama bin Laden.
Article 243 says, “The Federal Government shall have control and command of the Armed Forces”.
Therefore, the federal government has the authority to remove officers and officials that helped Osama bin Laden.
Article 243 further says, “Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President”, and Article 245 says, “The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any court”.
Therefore, the federal government has the authority to order the military to hand over those left in the leadership of Al Qaeda or other affiliated terrorist groups who are still on Pakistani soil. And the Supreme Court has no authority to question this.
But wait, what about allowing American forces to carry out operations on Pakistani soil to capture or kill terrorists? Isn’t that subverting our sovereignty? Not according to the Constitution.
Remember the very first item in the Fourth Schedule? It gives the federal government full authority to allow “any armed forces which are not forces of the Federation but are attached to or operating with any of the Armed Forces of the Federation including civil armed forces”. Additionally, the Federal Legislative List is found in Fourth Schedule. Part I Number 3 gives parliament the sole power to make laws with respect to any matter of “External affairs; the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan.”
What about nukes? The memo says that the federal government will would reinstate the policy originated under the Musharraf regime to bring Pakistan’s nuclear assets under a more verifiable, transparent regime. Nuclear weapons are under the command of the military, though, right?
Wrong. Nuclear weapons are under control of the National Command Authority. In 2009, parliament passed the National Command Authority Bill, further establishing civilian command over the nuclear assets and putting them under control of the Prime Minister.
Therefore, the federal government has the authority to reinstate the policy originated under the Musharraf regime to bring Pakistan’s nuclear assets under a more verifiable, transparent regime.
What about eliminating sections of the ISI, or handing over 26/11 terrorists to India? This authority also rests with the federal government under the Fourth Schedule, Part I, Number 1.
We should ask ourselves whether the national institutions are following the Constitution. Let us stop lying to ourselves, shall we? The Supreme Court has just abandoned the Constitution of Pakistan. The principles of law and justice have been distorted, and more and more it appears that the outcome has already been determined, and the process is simply going through motions.
Asma Jahangir saw this all too clearly. If this was a legitimate legal process, she asked, how could the Court issue an order when the accused had no representation and had not been given the right to speak? How can his lawyer be warned by the Chief Justice not to question the statements of military generals? Speaking to reporters at the Supreme Court building, she declared that the judiciary has effectively put civilian authority under the military. In other words, the Constitution has been turned on its head.
You and I may not like what was in the memo, but there can be no doubt that the federal government would have the constitutional authority to do any of it. It might be bad policy. It might be politically stupid. But the fact remains that the federal government has the authority to do all of it. You and I may not like that fact, but it is a fact even so. And if we want to change that fact, we have to change the constitution. Otherwise, punishing the federal government for something that was within its constitutional authority, no matter how stupid, is an attempt to abrogate or subvert or suspend or hold in abeyance the Constitution of Pakistan. And that actually is treason under Article 6.
Just a gentle reminder to my dear readers: Before some clever soul tries to say that I am suggesting the government had anything to do with the memo, or that I approve the memo contents, or anything else that is not stated in this post – I am not. This is purely a hypothetical examination of the Constitution as it actually reads and not as TV anchors and political operatives try to pretend it does.