Memo saga heads in different direction

Syed Yahya HussainyAlthough the anti-PPP publicists have renewed their claims about Mansoor Ijaz’s version of events about the memo saga looking very believable, the ruling party remains confident that this will be just another example of over-enthusiastic PPP haters celebrating the government’s difficulties while using the shoulder of the judiciary.

“Already, what started out as an issue expected to bring down the Zardari government has been reduced to a ‘get Husain Haqqani’ campaign,” said one observer.

Instead of the facts about writing of the memo, the conduct of Pakistan’s former ambassador to the US, Husain Haqqani, and the memo commission’s insistence that he return to Pakistan instead of being allowed to record his statement by videoconference have now become the main topics of discussion.

Mansoor Ijaz has so far not handed over his BlackBerry handset for forensic examination, Haqqani’s illness has given him an additional reason besides personal security concerns to say he cannot return to Pakistan right now. And the issue of equal treatment for the two witnesses before the commission has yet to be settled by the Supreme Court.

Even the claim by anti-PPP hardliners that Haqqani’s missing BlackBerry handsets could pose a national security threat indirectly supports Haqqani’s position that his handsets could not be handed over even if found.

PPP supporters say that even after the subdued appearance of former ISI chief Lt General (r) Ahmed Shuja Pasha before the memo commission and the critical remarks by commission members about Haqqani, there is just not enough evidence to substantiate the story that is believed by few people other than those who have persisted with supporting Mansoor Ijaz’s stupendous claims.

The memo saga started unfolding in October last year, with some forces making it a high stakes game for the government. It slowed down in the middle and now towards its conclusion seems set to witness another twist with stakes rising for the other side and possibly Haqqani, government supporters say.

Haqqani has now thrown the ball in the court of the highest esteem, asking it to provide him equal treatment when it comes to deposing before the memo commission and facilitate him to do so through a video link from London or Washington. Sources say this move has the backing of the top PPP leadership, which wants to create a new issue that can be used in its long-running battle with the judiciary.

While on the face of it, the memo commission is asking questions about Haqqani’s alleged non-compliance with its orders, it has to be prepared for questions that might be asked about its impartiality, especially at the international level. The memo commission was tasked by the Supreme Court to collect evidence and it gave the facility of recording statement by video link to Mansoor Ijaz on grounds that his life would be threatened by travelling to Pakistan.

Now Haqqani has taken the same position, asking the Supreme Court to consider threats to his life equally seriously to the threats claimed by Mansoor Ijaz, a US national.

The Supreme Court will most likely hear Haqqani’s petition when his lawyer Asma Jahangir returns on April 16 from her travels abroad. Until then, the memo commission will most likely continue to push Haqqani’s lawyers to ask him to appear before the commission and demand other actions from Haqqani. The former ambassador, however, will seek protection of the age-old principle that the onus of proving guilt lies with the accusers and if guilt has not been proved and no legal criminal proceedings initiated against Haqqani, the memo commission’s findings have little significance except to generate media headlines.

In any case, legal experts point out that the commission is a fact-finding probe and not a court conducting a trial. Its job is to find out what may have happened and not to ascribe guilt or innocence as no FIR has been registered, no charges have been filed and it is not even clear if any law has been violated by anyone. After PPP Chairman Bilawal Bhutto Zardari’s emotional speech on his grandfather’s death anniversary reminding everyone that Zulfikar Ali Bhutto was sentenced to death as a result of a wrong decision by the judiciary, the PPP is willing to engage in a legal-political battle with the judges of the superior courts.

It is in that background that Haqqani had written a letter to the chief justice, which has been kept confidential, though the court said that such letters should not be directly written to the court.

At the beginning of the memo case, a letter by a Pakistani-Canadian had been turned into a petition by the court. The ruling party plans on highlighting every incident where the judiciary’s attitude towards the PPP is different from that towards other parties, sources say.

Haqqani’s lawyers assert that the media trial against him even without any charges being filed or proof being put on record has created an extremely hostile environment for him in Pakistan. Hostility towards the former ambassador can be found among extremist groups as well as in the ranks of the state machinery, which would be expected to protect him. The then ISI DG, they say, rushed to judgement based on only one meeting with Mansoor Ijaz showing how vulnerable Haqqani might be upon immediate return to Pakistan.

Even during his statement, General Pasha did not go beyond reiterating what he had already said in his affidavit before the Supreme Court in January.

He offered no evidence independent of Mansoor Ijaz’s claims, which he says he believed.

He agreed with Haqqani’s lawyer during cross-examination that Mansoor Ijaz was anti-Pakistan and anti-ISI. While some may find comfort in Pasha appearing before the commission as a sign of the case building up against Haqqani, his statement added little to the claims of Mansoor Ijaz in terms of proving anything.

According to Haqqani’s lawyers, the memo commission has a huge issue at hand, which cannot be dealt with by making remarks about Haqqani’s refusal to appear in person or raising questions about his health. Contrary to the perceptions built up over the months, Mansoor Ijaz’s statement that was seen as the key to the whole issue had proved very weak and uncorroborated in terms of the law of evidence.

Mansoor Ijaz admitted that he had no email or BBM message from Haqqani regarding the memo and his entire claim rests on linking BBM messages to telephone conversations. In his own written statement, Haqqani has given a totally different account of the same phone calls, which he says were just a small part of hundreds of phone calls he made in May 2011.

General Pasha said in his cross-examination that while Mansoor Ijaz showed him BBM screen shots, he refused to hand over to him any evidence.

Several of Mansoor Ijaz’s statements before the commission have been challenged by people not directly connected to the memo affair, raising questions about whether memogate’s star witness has a habit of exaggerating and manipulating communication.

Former US president Bush’s adviser, David Frum, wrote an article in Newsweek and The Daily Beast saying Mansoor Ijaz had “lied” before the commission about sending him a legal notice over his criticism against the American businessman of Pakistani origin.

Haqqani’s lawyers say that the commission also has to decide if it can rely on the testimony of a witness who made some laughable claims during the proceedings. Many of such claims even the commission had to reject as unverified and unreliable. Take for example the transcripts of communication between US helicopters and Pakistani ATC on May 2, 2011, as well as claimed communication between two high offices in Pakistan. General Pasha effectively supported Haqqani’s written statement when he said that there was no likelihood of a coup in May 2011, contrary to the claims of Mansoor Ijaz.

It is also now becoming apparent that the commission might not go ahead with the idea of expensive forensics examination of Mansoor Ijaz’s BlackBerry handset. The head of the commission commented at one hearing that forensics examination is not required at this stage. Sources say most experts in London approached by the commission’s secretary expressed inability to verify the data as suggested by Mansoor Ijaz and widely believed by his supporters.

This is the reason that the commission is once again relying on putting pressure on Haqqani to voluntarily write to Research in Motion (RIM) to secure verification of Mansoor Ijaz’s data.

A valid question that arises from this demand is how anyone can order someone to do something that is meant to be voluntary and would RIM treat as voluntary a letter that is written under orders.

The memo commission had started its proceedings by targeting BlackBerry manufacturers, RIM, to provide it with data.

Mansoor Ijaz and his lawyer had claimed that RIM could provide all the records but it was discovered later that RIM does not maintain records of communications beyond three months. It seems on the issue of forensics too, the presumptions of those who wanted to hang Haqqani, and even President Asif Zardari, on the basis of examination of BlackBerry handsets are discovering that it might not be easy to prove Mansoor Ijaz’s claims through forensics either.

Meanwhile, Haqqani has submitted complete and unedited detailed itemised telephone bills for both his BlackBerry handsets for the entire year of 2011.

Lawyers say, these records prove his assertion that Mansoor Ijaz was a “peripheral” acquaintance and not a friend. For example, in May 2011, Haqqani’s phone bills show 875 incoming and outgoing phone calls on his two telephone numbers, only four of which are to or from Mansoor Ijaz’s number.

Similarly, there are 1,321 text and data items on the bills for May 2011, when Ijaz says he sent the disputed memo, and his number represents a miniscule part of these exchanges.

From the PPP’s point of view, Haqqani is just the right person to create negative perceptions about the judiciary at the international level. The former ambassador is widely supported in the US and western countries even though he has been criticised at home. The Supreme Court’s decision to bar him from travelling abroad was criticised by Haqqani’s international supporters, including the International Commission of Jurists.

Even if Haqqani fails to get the Supreme Court to support his request for recording statement by video link, the PPP leadership will be able to exploit this in creating negative perceptions about the judiciary internationally, sources claim.

On the face of it, Haqqani has simply sought legal redress by approaching the Supreme Court. The opportunity for him to seek the intervention of the Supreme Court was provided by the memo commission. In its proceedings on March 18, when Haqqani was present in London and had requested that his statement be recorded there and then, the commission had taken a position that it was the Supreme Court that had bound Haqqani to be present in Islamabad, and that the commission did not have the competence to undo that.

Thus the commission opened the gate for seeking further interpretation of the Supreme Court order of January 30, 2012. Haqqani might gain most by closing the chapter of memogate even if it entails coming to Pakistan and recording his statement. But the PPP leadership is relishing the opportunity of showing how its opponents rushed to judgement and involved the judiciary in the matter. The memo commission’s adverse remarks about Haqqani, his supporters say, will only benefit him in proving that the commission was predisposed negatively towards him.

Ironically, it is now the PPP leaders who want memogate to drag on so that there are more and more negative international comments about the judiciary and alleged violations of Haqqani’s rights are made an international issue to embarrass the party’s opponents.

This piece was published in Daily Times on 11 April 2012.

Memo commission goes on wild goose chase

Syed Yahya HussainyDespite glaring contradictions and absurdities in the testimony of Mansoor Ijaz, the man who instigated the memo issue, the judicial commission of inquiry appointed by the Supreme Court continues to take him seriously. The international media has stopped even covering the memo issue and within the Pakistani media only an English language newspaper edited by a US-based friend of Mansoor Ijaz reports on him as if he were a serious witness.

Starting off with claims of delivering an unsigned memo under instructions of former ambassador to the United States, Husain Haqqani, the testimony of Mansoor Ijaz ended with claims of intelligence services from four countries – whom he is unwilling to name – confirming to him that there was a serious threat of a military coup in Pakistan after the May 2, 2011 US raid that killed Osama bin Laden in Abbottabad. The commission did not ask the obvious question:

Why would intelligence agencies from four countries report to Mansoor Ijaz? What is he, M from James Bond movies?

The commission was created as a fact-finding body, not as a court trying anyone for a crime. It cannot, therefore, be content with allowing witnesses to make statements and be cross-examined by counsel of various petitioners who brought the case to the Supreme Court or respondents who were named in the original petition. It should get into ascertaining the facts itself. But so far Mansoor Ijaz, who is testifying from London because he lives at an unidentified address in Europe, has been allowed to get away with giving his family’s address in the United States (2236 Archer Road, Shawsville, Virginia 24073) as his address even though he has not lived there for years.

With characteristic flair and flamboyance, Mansoor Ijaz claimed that he had access to transcripts of conversations between President Zardari and General Kayani right after the bin Laden raid. He also had an email, once again from someone whom he cannot name, about the conversation between Pakistan’s Air Traffic Control and the US helicopters undertaking the raid in Abbottabad to get Osama bin Laden. He won’t tell us how he got these “documents” and the “documents” have no markings to indicate their origin or authorship. Now all we need is another petition before the Supreme Court and another commission to delve into the origin, authenticity and purpose of all the anonymous documents produced by Mansoor Ijaz.

The Washington Post not long ago described Mansoor Ijaz as the “Quixotic character in a spy novel that he had written himself.” His testimony proves that description as apt. Interestingly, the non-descript email address used by Mansoor Ijaz to send the draft of the memo to Husain Haqqani, by his own claim, was Talk about wanting to be a spy, just like the movies. No wonder Haqqani did not take the email seriously or didn’t bother reading or replying to it.

During cross-examination, Mansoor Ijaz spoke about how ISI Director General Lt General Ahmed Shuja Pasha travelled to several countries, trying to secure support for a military coup. If he knew that from May and believed it, how does Ijaz square that with his willingness to trust Pasha in October with details of his May mission of delivering a memo on behalf of the civilians he wanted saved from the coup? General Pasha must also be regretting meeting Ijaz and giving him credence but that is another subject altogether.

Mansoor Ijaz makes a big deal of the fact that he has submitted his BlackBerry handsets and phone bills to the commission while Husain Haqqani has not. The commission’s head appears fascinated by this technical data. But the phone bills only confirm who called whom and at what time for what duration. How can this piece of ‘evidence’ shed any light on what was said during those telephone conversations?

The newspaper that still wants Ijaz’s testimony to somehow bring the elected government down claimed recently that the telephone bills submitted by Ijaz ‘confirmed’ that US General James Jones, who forwarded Ijaz’s memo and is the only former US official with whom Ijaz was directly in contact about his memo, lied when he claimed Ijaz had spoken to him a few days before May 9, 2011 – the day Ijaz first spoke to Haqqani. In fact, that is not the case. Ijaz’s telephone bills confirm he spoke to General Jones on May 9 but there is no way of confirming if the two spoke earlier as well or not. Ijaz could have called Jones from another phone number just as he says Haqqani called him from an “unidentified phone number” once. No one’s life revolves just around their BlackBerry or a single phone line.

Ijaz admits that he stopped using the particular BlackBerry set he used to communicate with Haqqani in May on July 4, 2011. This should point to changing of handsets being normal, just as Haqqani changed his BlackBerry sets later in the year. But for Ijaz, the man who deals with two dozen intelligence agencies around the world, his changing handsets is normal while someone else doing the same amounts to attempting to conceal evidence. What evidence? The well laid out story linking telephone conversations whose content cannot be proved with BlackBerry messages that make no mention of the memo or its subject. In fact, the only BBM messages that talk about the coup went from Ijaz to Haqqani by Ijaz’s own account.

In his statement before the commission, Mansoor Ijaz claimed that he never told Haqqani that he was transmitting the message he claims originated from Haqqani through General Jones. According to Ijaz, he “made modifications to the body text of the email to ensure that nothing could be traced to General Jones. This was done so that Haqqani does not find out who I was writing to and who was my contact.” Talk about acting out spy fantasies.

But the man he was protecting even from Haqqani according to his claim came out denying Ijaz’s account. If General Jones is or was closer to Haqqani than Ijaz, what was the need for the whole cloak and dagger operation in the first place? Other than Mansoor Ijaz’s vain desire to be part of something important and to be a character in his own spy novel?

Another interesting part of Mansoor Ijaz’s testimony is where he says of his contact with Haqqani after May. “On June 3, 2011 an article written by me was published in the weekly magazine Newsweek which is owned by the organisation The Daily Beast. Upon publication of the said article Haqqani contacted me and commented about its contents. We remained in contact till June 22, 2011 and I did not hear nor contact him again till early September 2011, when I received a message from him which I no longer retain, stating that he was intending to leave his office and was reaching out to his friends for their support.”

Why, one may ask, is this particular exchange of messages from September not retained by Mansoor Ijaz who has retained so many messages, including ‘Ping’ and ‘Okay’ from May on his BlackBerry handset and its backup on his computer? Was retaining the exchanges from May deliberate so that they could serve the purpose of weaving a story around them while the latter messages are being revealed verbally only because critics, like me, have asked why Ijaz did not stay in touch with Haqqani after undertaking such an important “mission” on his behalf in May? Apparently, a “crucial” PIN message from Ijaz to Haqqani is also missing according to Ijaz’s statement.

If saving PIN and BBM messages (which, by the way, is the only function of the BlackBerry handset for which the set’s PIN No is relevant) is subjective and if data can be altered or deleted then how does the Commission expect to resolve the question of how the memo was written based solely on BlackBerry handset data? It is true that a witness sitting in London and talking to judges through video link can be impressive, especially when he shows how he has technical means such as a BlackBerry handset to “confirm” what he claims. But given that our judiciary is not always technology savvy it should be careful in deferring to experts, preferably not ones proposed by one of the parties.

During the memo commission’s hearing on Friday, the commission asked its secretary to approach forensics experts named by Mustafa Ramday, counsel for Mian Nawaz Sharif. If the commission was to identify totally independent experts it would learn that alteration of BlackBerry handset data over time as well as in retrieving it from a computer back up is a definite possibility. In fact, one of the expert witnesses from FIA who testified before the commission on January 9 tried to explain that to the commission but was scolded by the commission’s head because he was explaining things too technically.

Haqqani’s lawyers will probably grill Mansoor Ijaz during cross-examination but knowing Ijaz, he will have a story to further his original story. After all, here is a man who managed to borrow money from a San Marino bank by telling them he had an Indian family’s backing of $50 million without ever naming the family. Ijaz recently threatened to “deal” with newspapers and blogs that “slandered” him but has not denied the substance of articles that say he may have exaggerated his fortune to claim uber-wealthy status without really being that wealthy. His claims about unnamed US officials threatening him about testifying before the memo commission is as ludicrous as his claim about getting information from unnamed intelligence officials in four unnamed countries.

Just as Mansoor Ijaz’s investors are unnamed so are his sources in his art-time occupation of super-spy. In 2003, journalist Richard Miniter, in a book titled “Losing Bin Laden: How Bill Clinton’s Failures Unleashed Global Terror,” quoted Clinton administration officials who did not take Ijaz up on any of his offers to help get Osama bin Laden out of Sudan between August 1996 and 1998 because they viewed him as “a Walter Mitty living out a personal fantasy.” The US 9/11 Commission, which interviewed Ijaz, concluded that were was no “credible evidence” that the Sudanese had made any offer to hand over bin Laden.

According to Wikipedia, Walter Mitty is a fictional character in James Thurber’s short story “The Secret Life of Walter Mitty,” first published in the New Yorker on March 18, 1939, and in book form in My World and Welcome to It in 1942. It was made into a film in 1947. Mitty is a meek, mild man with a vivid fantasy life: in a few dozen paragraphs he imagines himself a wartime pilot, an emergency-room surgeon, and a devil-may-care killer. The character’s name has come into more general use to refer to an ineffectual dreamer, appearing in several dictionaries. The American Heritage Dictionary defines a Walter Mitty as “an ordinary, often ineffectual person who indulges in fantastic daydreams of personal triumphs.”

Mansoor Ijaz has had many incarnations as Walter Mitty. In a 2004 interview with Fox News, Ijaz made the sensational claim: Chemical warheads were being smuggled into Iraq for a potentially catastrophic attack against American troops. He claimed that the whole plan was given the green light by hardline Iranian mullahs. According to CNN analyst Peter Bergen, “The story had everything to attract attention – Mad mullahs! WMD on the loose in Iraq! (At last!) And the threat of thousands of potential American casualties.”

Ijaz told Fox in 2003 that “eyewitness sources” placed Osama bin Laden and his deputy, Ayman al-Zawahiri, in Iran. When host Brit Hume asked about the source of the claim, Ijaz replied, “I can just tell you that the source is unimpeachable. It is from inside Iran. These are eyewitness accounts.”

By 2006, Mansoor “Walter Mitty” Ijaz had adopted the description of a “US nuclear proliferation and terrorism expert.” In that capacity he told Gulf News newspaper that Iran not only had a nuclear bomb, it was seeking to “duplicate them in large numbers before revealing their existence to the world.” Six years later, Iran’s possession of a nuclear weapon has still not materialised.

Tasked by the Pakistan Supreme Court to determine the origins, authenticity and purpose of Mansoor Ijaz’s memo to US Admiral Michael Mullen, the memo commission has bent over backwards to secure Ijaz’s testimony. But shouldn’t the commission look into the antecedents of the man before continuing a wild goose chase based on his phone bills, web of BlackBerry messages and emails, most of which either conceal the source or have unidentifiable intelligence agencies as sources.

With only Mansoor Ijaz as the explainer-in-chief, the memo story has already caused Husain Haqqani’s resignation and the army’s humiliation as a failed coup-maker. Let us hope it does not make our honourable judges look like people easily swayed by a fictional spy thriller just because it contained a lot of technical mumbo jumbo.

This piece was originally published by Daily Times on 4th March 2012.

Judiciary frustrated by rule of law

An article in The News caught my attention yesterday when I read that the head of the Judicial Commission probing the memogate scandal is frustrated with inaction on the part of the government. According to the article,

Justice Qazi Faiz Esa on Thursday expressed anger at the Foreign Office’s inability to pursue the matter of the record of Blackberry messages between Husain Haqqani and Mansoor Ijaz with the Canadian High Commission in Pakistan.

This struck me as odd for a couple of reasons. First of all, the Foreign Office actually did pursue the matter of the record of Blackberry messages between Husain Haqqani and Mansoor Ijaz with the Canadian High Commission in Pakistan. The Canadian High Commission, being familiar with Canadian privacy law, told the FO that there was nothing they could do.

Justice Faiz Esa thinks the FO is “hampering the inquiry” because they haven’t created an international incident over the issue. The commission went on to complain that the Blackberry company, being a Canadian company, is following Canadian law. According to the judicial commission, “The Blackberry company is operating in Pakistan and they also have some obligations here for smooth functioning”. It is not hard to read such a statement as a threat – either provide us with the data or we will block your access to operate in Pakistan.

But even if the Canadian High Commission decided to become rogue and force a company to violate the law, what would be the point? Even Mansoor Ijaz himself says that Blackberry doesn’t have anything new data.

The reality is that what we found out from BlackBerry was not that; literally the data didn’t exist that we thought existed. Meaning, the chat, the actual lines of the chat exchanges is not stored by BlackBerry on their servers. What they store to some extent is, like a telephone log, here is the PIN number that communicated with another PIN number and here is the date and time which they did that.

The most anyone could prove is that Husain Haqqani had BBM chats with Mansoor Ijaz – something he has never denied. But none of the chat transcripts that Mansoor Ijaz has submitted say anything about a memo. The only way to read those chats as suggesting Haqqani had anything to do with Mansoor Ijaz’s memo is if someone has already told you how to interpret them before hand.

In many ways, the memogate case is similar to another case that is causing frustration to Our Lords on the bench. The Supreme Court continues to distract the government from real issues like poverty,

In the Swiss case, the Swiss have also said that they cannot reopen the case even if asked because the law says that the president benefits from immunity while in office.

A Swiss prosecutor said Wednesday that it would be impossible to reopen a money laundering case in Switzerland against Pakistani President Asif Ali Zardari since he benefits from immunity as a head of state.

Nevermind what the constitution or the Swiss themselves clearly say, the Supreme Court has threatened the Prime Minister with jail if he does not write a letter requesting the Swiss to open cases against the president.

And even if everyone decided to ignore the law, what would be the point? The Swiss prosecutor said four years ago when the case was closed that there was not enough evidence to bring Zardari to trial.

On August 26, 2008, Swiss judicial authorities closed the money-laundering case against Zardari and released $60 million frozen in Swiss accounts over the past decade.

Daniel Zappelli, Geneva’s chief prosecutor, said he had no evidence to bring Zardari to trial.

Foreign respect for the notion of ‘rule of law’ seems to have thoroughly confused and frustrated Our Lords. Rather than taking up any of the other countless cases that affect the lives of ordinary Pakistanis, the judiciary continues to waste the national treasury on what increasingly look like witch hunts. Perhaps the judges believe that these cases are giving them more respect and power. But what would really give the court the respect of the people would be to address the issues that affect everyday Pakistanis and leave political vendettas to the politicians.

Memogate: Another contradiction? Time to wrap it up…

I would not dare to term Mansoor Ijaz as a bald faced liar. Mr Ijaz is an ultra-wealthy international businessman represented by attorney Akram Shiekh and the special guest of the Army for an appearance before the Supreme Court. That is not a hornets nest I want to find myself in the middle of. So let me be clear: I am not at all suggesting that Mansoor Ijaz is a bald faced liar. I just think he happens to be prone to a lot of ‘mistakes’ when it comes to things like ‘facts’, and that the things he say seem to be ‘misunderstood’ quite a bit.

Most recently, Mansoor Ijaz gave an interview to Geo where he told a reporter that he had a conference call with the US State Department who assured him of the US’s support for his trip to Pakistan next Tuesday.

“I had a conference call with the US State Department a couple of days ago. The US government will provide the support that they always do for US citizens,” Ijaz said in the interview in London.

“They (the US government) made their official position very clear and I made my reasons for going very clear. They understand it’s a high profile case and they understand I am a reasonably high-profile American citizen,” he added.

“And I think If, god forbid, anything goes wrong they will certainly be there to help my family make sure that things got sorted out. I am absolutely confident that the American government will do the right thing if something went wrong,” he said without elaborating what could possibly go wrong.

The next day, though, the US Embassy offered a different story.

US embassy in Islamabad said on Saturday that no security has been assured to Pakistani-American businessman Mansoor Ijaz during his visit to Pakistan where he is due to appear before a commission formed to investigate the memogate case on January 24, Geo News reported.

US embassy spokesman was speaking to Geo News and told that Ijaz would be visiting Pakistan as a common US national and would be entitled to avail all the facilities that other Americans get here.

The spokesman made it clear that Ijaz has not been committed any security during his visit

Actually, this is only the latest in a series of ‘mistakes’ or ‘misunderstandings’ that seem to go back to the beginning of the entire case. First there were the statements of Mansoor Ijaz’s good friend Gen Jim Jones who contradicted Ijaz’s claims. Then there was Mansoor Ijaz clearly accusing DG ISI of plotting a coup, only to turn around and claim that he was simply misunderstood. Then there’s the problem with Mansoor Ijaz’s sworn affidavit to the Supreme Court which claims that the memo was written not by Husain Haqqani or Asif Zardari but by “senior active and former Pakistan government officials, some of whom served at the highest levels of the military-intelligence directorates in recent years, and as senior political officers of the civilian government”. The only constant in Mansoor Ijaz’s story seems to be that it will change.

So what are we to make of this Mansoor Ijaz who can’t seem to get his facts right? Who accuses everyone of everything under the sun? Maybe he’s too distracted by the sordid details of his time with ‘Nasty Nancy’ to remember the details of any conversations. Maybe he’s just invented the whole thing out of some bizarre scheme to get famous. Maybe next week we’ll see him and Veena Malik parading around together. Who knows?

What we do know is that we’re spending an immense amount of resources on a case based on the word of this guy.

Mansoor Ijaz

How much is it costing the Supreme Court to waste its time on this case? How much is it costing the Army? And not only in terms of Rupees, but in terms of opportunity costs. In other words, don’t the Supreme Court and the Army have better things to do?

Mansoor Ijaz is supposed to appear in the Court next week. Ironically, he is set to appear under the special protection of the military and ISI. His own country seems to have abandoned him. I don’t know if he will appear or not. He hasn’t shown up a few times already, though he was ready with a quick excuse as always. I just hope this whole drama gets wrapped up soon. At this point it has become predictable and boring.

Is the Judiciary really Independent?

Justice iftikhar Chaudhry with Military

One of the bedrocks of a democracy is the existence of an independent judiciary. Article 25 of the Constitution guarantees that “All citizens are equal before law and are entitled to equal protection of law”. But is this actually the case? Or are some citizens given special preference, while others are treated as suspect before they are ever even charged with a crime? Unfortunately, several recent events point to a troubling possibility – that not all citizens are equal before the law, and even if the judiciary is independent of the elected government, it is not independent of certain unelected institutions.

When Mansoor Ijaz’s revealed his famous memo back in October, the nation understandably wanted to know the facts of the case. Parliament initiated an inquiry, but the judiciary stepped in and set up their own commission claiming to be an independent institution. When Asma Jahangir appeared before the Supreme Court in defence of Husain Haqqani, however, she received a reprimand from the Chief Justice for daring to present evidence that contradicted the opinions of military generals.

The chief justice said: “Instead of giving importance to our own people (COAS and ISI DG) why should we consider the James’ affidavit more credible. Asma said army chief’s team brought the memo issue to his knowledge and on that basis he submitted his affidavit. The chief justice said armed forces have rendered lot of sacrifices for the defence of the country and they have respect for Chief of Army Staff (COAS).

The judiciary argued that it was the best venue for investigating the ‘memogate’ as it is independent of the political parties. But the elected government is not the only institution involved in the issue. Also involved are the unelected institutions of military agencies. If military officers are given preference by the Chief Justice, can the court truly be considered independent?

There are other questions related to the judiciary’s handling of the case that seem very problematic. Under what code of ethics, for example, is it okay for a lawyer representing one side of a case to publish an article in a major newspaper consisting of personal attacks against the character of the accused and his lawyer? And yet this obviously unethical act resulted in no response from the Chief Justice, no reprimand for the lawyer, no warning not to treat the case as sub judice. Does a veteran public servant not deserve the same basic respect as a military officer in the eyes of the court?

What about the fact that the entire ‘memogate’ case rests on the word of a man who also told a British newspaper that DG ISI was plotting a coup? The Supreme Court justified its commission to investigate claims about the memo based on Article 19A of the Constitution which guarantees “every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. Is the possibility that military officers were plotting a coup not “a matter of public importance” to the Supreme Court? Writing in Dawn, attorney Waris Husain asks why evidence is only being gathered against one side of the case and not all institutions equally?

For arguments sake, let us assume that the allegations against Haqqani are proven to be true. In order to determine whether he committed treason under Article 6 by “abrogate[ing] or subvert[ing] or suspend[ing]…the Constitution” one must judge whether or not the military was actually attempting a coup. If the military were attempting a coup, a plea to outside powers to help protect the parliamentary governance instead of dictatorship would preserve, not subvert, the Constitution. The case becomes damming for Haqqani if the Army Generals are found to be innocent of said allegations. Either way, the Court should ask for all communications exchanged by Generals Pasha and Kayani in relation to a potential coup, if they wish to accurately assess which party committed treason.

Though the Court has yet to decide who will face charges, they have exclusively put Haqqani on the control list, leaving off the military generals who stand behind the petition. The military leadership not only retains its right to travel, but it was launching international investigations into Memogate before being given the right to do so. The matter most certainly should have been investigated, but the manner and source of an investigation are paramount to a court of law. The information from the military affidavits should be examined critically rather than being accepted as prima facia evidence against Haqqani.

This question becomes even more important when one reads what is actually in the Affadavit submitted by Mansoor Ijaz himself.

Page 78 of Ijaz’s affidavit makes an interesting read as it speaks of Pakistani government officials “who served at the highest levels of the military-intelligence directorates in recent years and senior political officers of the civilian government.” These words were part of Mansoor Ijaz’s email to Gen. James Jones, stating: “I am attaching herewith a document that has been prepared by senior active and former Pakistani government officials ….” Here, Ijaz speaks of government and intelligence officials and not of a diplomat (Haqqani).

If Mansoor Ijaz claimed that the memo was written by recent senior military-intelligence officials, should the court not also request the submission of communications between intelligence officers and Mansoor Ijaz?

According to page 17 of Mansoor Ijaz’s affidavit, he received a phone call from Husain Haqqani “about 5 or 6 days before I met with Gen Shuja Pasha in London” asking Ijaz why he was meeting with the DG ISI. Mansoor Ijaz’s op-ed was published on 10th October, and his meeting with Gen Pasha was on 22nd October. If Husain Haqqani learned about the meeting 6 days before it happened, that means that it had to have been scheduled even earlier than that. This means that Mansoor Ijaz and Gen Pasha had to be communicating almost immediately after the op-ed was published, if not before. Is the fact that DG ISI was having discussions with Mansoor Ijaz so early not relevant to the Supreme Court? Does the judiciary only have the authority to demand the phones, computers and passports of civilians? Is there another law for military officers? If so, is it written law? Or danda law?

Let us move away from the ‘memogate’ case and compare the ‘independent judiciary’ handled another case. In the case of murdered journalist Saleem Shahzad, reports from human rights organizations and international media also cast suspicion on the involvement of unelected agencies. A high-level judicial commission headed by Supreme Court judge Justice Saqib Nisar took up the question of who tortured and murdered Saleem Shahzad. Six months later, the judicial commission reported that they found…nothing.

The Saleem Shahzad Commission was asked to submit its report within six weeks of its formation. Six months down the line however, its final findings show little. The report, presented to the prime minister on Tuesday, has not held any institution or individual responsible for the abduction, torture and murder of the journalist, according to a member of the probe.

These events raise serious questions about what it means for the judiciary to be ‘independent’. Certainly there is no question that the justices are not under the influence of the civilian government. But the civilian government is not the only institution with an interest in recent judicial cases. If the judiciary cannot treat elected and unelected institutions the same, though, can it truly be considered ‘independent’?