If Chief Justice Iftikhar Chaudhry was having a bad week when he found his son dragged before the Court and his own name dragged through the mud of media talk shows, things only got worse when he was handed a sealed envelope containing the report of the judicial commission formed to investigate the memogate scandal. The Justices appointed to the commission failed in a big and serious way. They stepped so far outside their authority that they poisoned any future proceedings, basically ensuring that Husain Haqqani could not possibly receive a fair trial in Pakistan. And the Chief Justice knows it.
Here’s what happened. In Constitution Petitions No.77 to 85 and 89 of 2011, the Supreme Court constituted a Commission with a very specific and narrow mandate:
…to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen…
That’s it. Three findings of fact: The (1) origin, (2) authenticity, and (3) purpose of the memo. That’s all the Commission was formed and authorised to investigate. Now, it was never going to be an easy job. Unwinding the constantly changing story of Mansoor Ijaz – not to mention regularly changing the rules to accommodate his whims – was no small task. But when they sealed the envelope containing their report, these three Justices also sealed the fate of the entire controversy.
In their findings, the Justices wrote that “the Memorandum was authentic”, “Mr Haqqani was the originator”, and “Mr Haqqani…wanted to create a niche for himself making himself forever indispensable to the Americans…” This was the extent of their mandate, and should have been the extent of their findings. But the Justices couldn’t help themselves, and they went on…
…He lost sight of the fact that he is a Pakistani Citizen and Pakistan’s Ambassador to the United States of America, and therefore his loyalty could only be to Pakistan.
(3) Mr. Haqqani’s by offering his services as part of a proposed ‘national security team’ to a foreign government, voicing the ‘great fears’ that ‘Pakistan’s nuclear assets are now legitimate targets’ and thus seeking to bring ‘Pakistan’s nuclear assets under a more verifiable, transparent regime,’ stating that ISI maintains ‘relations to the Taliban’ and offering to ‘eliminate Section S of the ISI and to help ‘ pigeon – hole the forces lined up against your interests’ created fissures in the body politic and were acts of disloyalty to Pakistan, that contravened the Constitution of Pakistan.
That’s not an answer to any of the three questions the Commission was authorised to report on. It’s not even a finding of fact – it’s an application of the law. The Commission not only exceeded their authority, they usurped the authority of the Court by finding facts and then applying the law without filing charges or holding a proper trial.
The Commission later says that Husain Haqqani “has to answer about the findings so recorded by the Commission”, but because they have already pronounced him guilty of “acts of disloyalty to Pakistan, that contravened the Constitution”, how can he possibly answer? He has been convicted in absentia with no access to due process.
Whether or not the factual findings of the Commission are accurate, by casting judgment against Husain Haqqani absent any charges or trial, they have undermined the judicial process completely and ensured that any outcome will be forever tainted. If Haqqani is acquitted by the Supreme Court, the Chief Justice will be undermining the credibility of not one but three High Courts. If Haqqani is convicted, though, it will be stained with the appearance of a ‘Kangaroo Court’ that persecuted a man who found himself on the wrong-side of a powerful military intelligence agency for writing a book critical of their ties to religious militants.
As the Chief Justice desperately tries to convince the nation that he is presiding over a legitimate court of justice and not a political tribunal that protects its favourites while relentlessly hounding its enemies, he is handed a sealed envelope containing one of the greatest judicial mistakes the Court has seen since, perhaps, a Supreme Court Justice gave legitimacy to Gen. Musharraf’s military coup by giving his oath under the dictator’s 1999 Provisional Constitutional Order (PCO)…