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.

Iftikhar Über Alles

By elections held last weekend were marred in the minds of the public by the unfortunate incident which took place in the competition for PS 53. I am writing, of course, of the infamous slap that was shown on TV in what seemed like an endless loop. This incident has already thrown the provincial seat into question as the accused Waheeda Shah evidently won the vote, but may lose the election based on her action as Election Commission Pakistan (ECP) is reviewing the incident. Of course, now not just the ECP but the Supreme Court too has taken notice! While no one denies that the incident should be properly investigated, it should be asked whether this is the proper use of the Supreme Court’s suo moto powers.

The infamous slap was not the only incident to take place. Who could have missed the footage of ANP supporters flouting the law with airial firing in Mardan that was broadcast all day?

Or what about the tragic crime in which PTI supporters of Shah Mehmood Qureshi fired at PPP workers and murdered poor Farhan Mughal in Multan?

While guns were brandished and arial firings used to intimidate voters – and in at least one case brutally murder a rival party supporter – the Chief Justice has taken notice of…a slap?

This raises two important questions. The first obvious question is why the Chief Justice takes notice of a slap while murders and firings go ignored?

Article 184(3) grants the Supreme Court suo moto powers to take notice of ‘a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II’. The Chief Justice has probably justified to himself by referring to Article 14 which protects ‘the dignity of man’.

But Chapter I of Part II of the Constitution also protects a right to education (Article 25A) and the right to profess, practise and propagate his religion (Article 20). Pakistan finds itself today facing a crisis on both fronts, where too many of our children are going without education, and our minorities are living in fear for their lives. Waheeda Shah’s slap may have insulted the dignity of one woman, but our failures in education and tolerance are insulting the dignity of over 1.5 crores. Why does the Chief Justice not take these issues as seriously?

And this is not the only issue. Chapter I of Part II also entitles every citizen to ‘a fair trial and due process’ (Article 10A). Why is the SC taking suo moto notice of an incident before it has the opportunity to go through due process? Waheeda Shah has already been called by District Returning Officer Ali Asghar Siyal to record her statement, and ECP has called the APO who suffered the slap to give her statement as well as DSP Tando Mohammad Khan Irfan Shah who was present at the time. ECP has also called Waheeda Shah on 6th March for hearing of the complaint against her actions.

Waheeda Shah’s action is a serious incident that should be investigated. The statements of those present should be taken and Waheeda Shah should be given the opportunity to explain herself also. She should not be judged before all the evidence is available, but she should not be given a free pass either. Whatever the ECP decides, then if it is not considered fair or just, it can be taken to court and work its way through the system.

This is the second problem. The incident took place on Saturday, and less than one week later already the Chief Justice is taking suo moto notice of the incident? For a justice who has repeatedly vowed to restore ‘rule of law’, he seems to forget that rule of law requires that due processes and procedures be allowed to run their proper course. The Supreme Court is not intended as the personal court of Iftikhar Chaudhry’s whims. It is the ‘Court of Last Resort’ – once all other institutions have judged an issue, if still it is not decided to the satisfaction of all parties, then they can appeal to the Supreme Court to hear their case.

Instead of using his suo moto powers in an arbitrary manner, the Chief Justice should observe proper restraint and allow due process and, indeed, the ‘rule of law’ to take its course. He should only take suo moto notice when there is no other option available – certainly not while other institutions are in the middle of proceedings on the same issue. Not only would this help to strengthen institutions, it would also give the Supreme Court the time necessary to actually close some of the cases it has already taken notice of. Pakistan needs a stronger rule of law. We do not need Iftikhar over all.

We’re no angels

PTI Karachi jalsa

Imran Khan has done it again. His 25th December rally in Karachi drew crowds of people and added more evidence that those of us who easily dismissed his party as a one-man-show may have spoken too soon. The unexpected rise of Imran Khan, though, actually raises some important questions. Imran’s rising popularity is largely attributable to his never having governed before – or in PTI-speak, his being ‘untested’. This is a fundamental part of his draw because his message is not really that different from any other political party, only with the other parties, nobody believes they are sincere since they have not achieved what they promised when they were given the chance. So my question is, do we have unrealistic expectations about what is politically possible? Is there any politician who can possibly live up to our hopes? And the corollary to that question – is Imran Khan setting himself up for failure?

After years of insisting that there was ‘no place for corrupt politicians in PTI’, Imran Khan himself recently discovered that ‘finding angels to join his party was next to impossible’ and has lowered the barrier from ‘clean’ to ‘repentant’.

When I point out that the ‘bigwigs’ who are swelling the ranks of PTI are the same bigwigs that have been governing for years, the responses I get are interesting. Some say that these people were always clean and virtuous, but were held back by the corrupt leadership of their former parties. The usual saying is that hindsight has perfect vision, but with some PTI supporters it seems more that hindsight is perfectly blind. Otherwise, I’m usually told that, yes, these people were dirty and corrupt, but Imran Khan will teach them morals and ‘clean’ them, as if Imran Khan is not an ex-cricketer but a holy prophet. There are a few still who say that, while they continue to support Imran, they are concerned about what the new, watered down version of PTI is going to end up looking like.

It’s not just what PTI will look like that is unknown. How PTI would actually govern is something of a mystery also. We all know that Imran looks to Allama Iqbal as his ideological inspiration, but who is his governing inspiration? After all, it’s one thing to talk about what government should be. It’s another thing entirely to actually make those changes.

When Zulfiqar Ali Bhutto formed Pakistan People’s Party, he too had a populist message that spoke directly to the hopes and dreams of the people. He spoke of strengthening dignity and national pride while reigning in the military’s involvement in government and of restructuring the economy so that the natural wealth of our nation was more fairly distributed among all Pakistanis. Once in office, though, he found quickly that such promises are more easily made than executed. Bhutto help guide the country to great progress, but he made some mistakes, too. Some of these, like declaring Ahmadis as non-Muslims, were clearly the result of compromises made with religious groups, while others, like nationalising industries, were simply part of the populist economic thinking of the day.

Nawaz Sharif’s PML-N was born in part from deals with the religious parties and military in exchange for the opportunity to undo much of the nationalisation that occurred under PPP and implement a more capitalist economic system. While this too made some achievements, Nawaz quickly learned that structural changes are much easier to promote from a stage than from the desk of Prime Minister. He introduced laws expanding the Islamisation under Zia-ul-Haq to appease his coalition, but when he began to work to repair ties with India by signing the Lahore declaration went against certain interests and even though he started his first term with the blessings of the establishment, he soon found himself in confrontation and, finally, removed.

Today, Imran Khan too seeks to compromise with the religious right and advocates economic policies like rejecting all aid and loans from the World Bank and IMF that are also likely to result in unintended consequences. It’s easy for Imran Khan and many of his supporters to propose rejecting all American aid. After all, it affects them much less directly, if at all. But what about the poor who rely on government programmes like BISP that are supported by US aid? Last year the Americans gave $85 million to support BISP. Will Imran and his supporters pay this much extra in taxes to make up the difference? Or are the poor supposed to starve in the interests of our national ‘self esteem’?

On the other hand, Imran says a lot of things that sound really great. Imran’s apology to Balochistan at Karachi jalsa is welcomed and a much needed recognition of the situation there, but changing national policies and stabilising the region will require much more than applause lines at rallies. He says he won’t allow any militant group to operate from Pakistan. He says that if he becomes PM, the Army and ISI will answer to him. He says he will set up an “e-government system” which will “automatically eliminate corruption from society”. He promises free legal aid, free health care, free education. He promises that the police will treat everyone equally – from the lowest magnay wala to the PM himself. The tax system will be reformed so that it is perfectly just, and everyone will gladly pay. He says that if elected he will transform Pakistan into a Islamic welfare state with a civil society on par with Britain.

The most amazing thing about this list of promises is that my otherwise perfectly rational friends are accepting them with the most delusional excitement. It’s not that I don’t like some of what Imran Khan says, it’s that even if PTI’s ‘tsunami’ sweeps national elections, achieving even a fraction of these changes during one five year term would be next to impossible. Even two terms is unlikely. And how long until the same people who today complain that the present government has been a miserable failure in its three years of governing will decide that Imran has overpromised and underdelivered? Will we then find ourselves hearing that well worn slogan that democracy is a failure and the military is the only competent institution?

Lasting change is incremental, and it requires changes in more than just PM’s house – it requires changes in our own values and priorities. We’re no angels, and Imran Khan is no saint. We have been unsatisfied with the inability of every government since day one to magically transform Islamabad into London “in my lifetime”. Imran Khan is making promises that he must know he cannot deliver. It might work to win political support as the untested saviour against Nawaz Sharif, Asif Zardari, Altaf Hussain and the other regular guests. But what happens if Imran actually manages to get himself elected? Perhaps we should stop placing all the blame on incompetent politicians, and start thinking about whether what we want can ever be delivered by any politician, or whether we’re looking for angels.

A Judiciary Gone Awry

“Free Judiciary = PPP Hanged”. So read one of the signs held in the background of the Beygairat Brigade’s “Aalu Anday” video. Though cloaked in an upbeat tempo, it was nonetheless a chilling reminder about the 1979 Supreme Court decision to hang Zulfiqar Ali Bhutto. It was a reminder that our courts are not insulated from the chaos of our political realm.

Discerning eyes in our country are alarmed at the demonstrably political direction the Supreme Court has taken on Memogate. The sordid saga has confounded all sentient people. Our able and adroit Ambassador to the US, Husain Haqqani, resigned amid allegations he crafted a memo to Admiral Mike Mullen delivered via Pakistani-American businessman Mansoor Ijaz. The memo asks the US government for help as the civilian government feared a military coup after the Abbottabad raid in May that killed Osama bin Laden. This tale of intrigue comes to us from Mansoor Ijaz himself, in an op-ed in the Financial Times. Ambassador Haqqani has strongly rejected these allegations, and stated the furor surrounding the letter was being exploited by the opponents of democracy in Pakistan. He offered to resign in order to put an end to the controversy, and vows to challenge these claims in court.

And that is where we are now. The Supreme Court has agreed to hear the petitions regarding the memo. Thus far, the Court’s decisions have been very disappointing and one-sided. The Court has barred Husain Haqqani from leaving the country for the duration of the investigation it will carry out. A lead petitioner for that ruling was Nawaz Sharif, leader of the PML-N, the major opposition party to the PPP and its governing coalition. Remarking on the speed with which the Court heard and ruled in favor of Sharif’s petition, the writer Nadeem Paracha tweeted “CJP or CJP-N?” It would be funny if this weren’t scary.

There are absolutely no grounds for putting Ambassador Haqqani on the Exit Control List. He has acted in the most dignified, respectable manner from the onset of this manufactured crisis. It is all entirely based on hearsay – a fantasist’s words that cannot be substantiated, at that. If the Court wishes to intervene, it must do so fairly.

Barring Ambassador from leaving the country flies in the face of fairness, especially since the decision was taken without any consultation or testimony from Ambassador Haqqani himself. He has granted multiple interviews to various media outlets, each time affirming his love and loyalty to Pakistan, and his desire to return home to deal with this controversy. Leading Pakistani lawyer, rights acivist and first ever female President of the Supreme Court Bar Association Asma Jehangir was so outraged by the sheer bias and politicking of the court, that she has committed to representing Ambassador Haqqani in this case.

Ms. Jehangir filed a petition with the court to remove Ambassdor Haqqani from the ECL (Exit Control List), arguing that the court’s decision seemed to be highly influenced by the outrageous media, and appeared strongly politically biased. She emphasized the ECL Ordinance of 1981, which stated only the federal government could place individuals on the ECL, and as Nawaz Sharif had not filed any such petition to the government. Therefore, the court bypassed a procedure required by the law.

“Continued control over the investigation exercised by the court is prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction. The court cannot assume the role of the investigator,” the application further added.

The Supreme Court rejected the application, saying that a review petition should have been filed instead. One wonders how the Court, so interested in intricacies, could have been the same Court that didn’t know about the 1981 ordinance. “We will file an appeal against the rejection of the application before exploring the option of filing a review petition,” said the tireless Asma Jehangir to reporters outside the Court’s steps.

She also demanded to know why the Court failed to take into account Ambassador Haqqani’s repeated statements expressing his desire to cooperate and clear his name? He is working with the Parliamentary committee to investigate the details of the memo, and his wish to clear his name is evident to all. Why then, Ms. Jehangir asks, did PML-N move to take their petition to bar the Ambassador from travel all the way to the Supreme Court? It is pure politics, and it is shameful that the Court has allowed itself to be manipulated this way.

If we are to be a sustained democracy, it must come with a clear understanding of separation of powers. While we do have clearly laid out roles, it seems our institutions lack an understanding of just what exactly, their responsibilities are. The Supreme Court should not need reminding of laws, and should instead be the force in our country that upholds them. It has a hallowed role in our country’s democracy, but it is not a political one. It must be fair, listen to all parties, and rule justly. And most importantly, it should not need reminding that one is innocent until proven guilty – not the other way around.