Can Gen Raheel Rise To The Challenge?

Lt Gen Raheel SharifNawaz Sharif has promoted Lt Gen Raheel Sharif to Chief of Army Staff, but there are reasons to worry that a change of names is not likely to bring a change of direction for the military. To put Pakistan on the right track, Gen Raheel is going to have to overcome some big challenges.

Gen Raheel is being lauded as a ‘moderate’ who believes TTP is ‘as big a threat as India‘. This is meant to sound reassuring, that the new Army chief’s priorities are in tune with the actual threats the country faces. But it also means that Gen Raheel sees India, which has not attacked Pakistan, as an equal threat to the TTP which has killed thousands and thousands of innocent Pakistanis and launched multiple attacks against Pak military bases. Before being promoted to COAS, Gen Raheel was focused on developing new responses to India’s ‘cold start’ doctrine. While TTP is threatening more attacks, we are getting another Army chief whose focus has always been India.

Gen Raheel takes over command of the military at a time when Pakistan is not only facing constant attacks by TTP militants, but is likely to lose a significant amount of military support as the Americans are preparing to leave Afghanistan. Gen Raheel has a choice: He can continue the India-centric policies supported by his predecessors, or he can reorient national security policy against the enemies that present actual, not ‘ideological’ threats to the nation. Only the future will tell if he can rise to the challenge.

Limits of Judicial Authority Defined

Justice iftikhar Chaudhry with Military

Whether the Judiciary has been hyper-activist, there is no doubt that it has been hyper-active since the return of democracy. From ruling on the price of sugar to throwing out democratically elected Prime Ministers, it seemed there was no limit to the reach of judicial authority. Since the past few weeks, though, the limits to judicial authority have finally been discovered.

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Swiss Letter a Test of SC’s Motives

On Tuesday, Federal Law Minister Farooq H. Naek presented a draft of the Swiss letter in the Supreme Court. With this, the government has passed the test put to it by the Supreme Court and disproven claims that the government is in defiance of the judiciary. The next test, then, is put to the Supreme Court to determine whether they are, as they have repeatedly claimed, merely following the rule of law, or if they are carrying out an orchestrated attack against the democratically elected president.

It should be recalled that Justice Asif Saeed Khan Khosa laid out four clear steps for the PM to take to demonstrate a good faith effort to comply with the Supreme Court’s directive:

Justice Asif Saeed Khan Khosa, while appreciating the stance of the prime minister, had told him that they would have to adopt four steps onwards for implementation of its directive. Firstly, the authorisation which should be produced in writing; secondly, draft of the letter to meet the directives contained in para 178 and upto the satisfaction of the court; thirdly, dispatch to and receipt by the concerned Swiss and other authorities; and fourthly, confirmation of such communication. Justice Khosa assured the PM that the bench would address Federation’s concerns and would not go beyond what they had written in para 178.

It appears that the government is prepared to take each of these four steps. Though the draft has not been made public, it is assumed that the letter requests the Swiss authorities to understand that the letter previously written by former AG Malik Qayyum is null and void. It is also believed that the government’s draft includes a notification of the president’s immunity under Article 248 of the Constitution. This has also been recognised by Justice Khosa, who recently stated that the Supreme Court accepts that the president enjoys immunity:

“We don’t deny about the immunity and we are ready to give any help by even stating in our order that Zardari is the president and has the immunity. God willing nothing will happen and democracy will not be derailed,” Justice Khosa said, adding that the world would watch that both the institutions would be vindicated.

So even if the letter includes a recognition of the president’s immunity under the constitution, the Supreme Court itself has previously directed that this would satisfy the Court’s order. To change their direction now and not accept the government’s draft would suggest that fears of judicial activism turning into political activism had come true, and what was being carried out was never about ‘rule of law’ but a political agenda.

On the other hand, the Supreme Court now has in its power the ability to clear the air between the judiciary and the executive and realise Justice Khosa’s hope that “both the institutions would be vindicated”. Let us hope that this episode finally comes to a quiet close so that both institutions can move on to addressing the grave issues facing the nation instead of obsessing over the past.

Chief Justice’s Bad Week Gets Worse

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)…

New problems for the Chief Justice

Mahmood Adeel in his piece last week made an interesting observation about our Chief Justice regarding his son’s case. He pointed out that it seemed CJ had already made up his mind regarding the outcome of the case and it sounded as if he was leading the witnesses to “provide the testimony needed to give the decision already made”. This made me think that other controversial cases are also facing problems of credibility due to lack of transparency and questions of undue influence at the outset of the case.

A similar incident that can be linked to the idea of whether the CJP is influencing a trial outcome already decided is the neverending memogate case. While there have been many questions regarding the special treatment granted to Mansur Ejaz and his secret meetings with top agency officials, the Chief Justice has also found himself at the center of controversy about the contents of a secret letter Mansur Ejaz sent to the CJP and the Supreme court during the memogate saga. As reported by various newspapers earlier this year, Ejaz sent a letter to the CJ the contents of which Chief Justice wanted to remain sealed. Next thing, Masur Ejaz was permitted to give his testimony via video link from London and Husain Haqqani was permitted to leave Pakistan. Many are now asking about the contents of this top secret letter known only to Mansur Ejaz and the CJP which appears to have changed the course of the case.

Today, this question becomes even more alarming with media reporting that the Chief Justice is forming a bench for hearings on memogate charges based on a sealed probe report by the memo commission. First a secret letter influences the Court, now a secret report constitutes a larger bench. If justice is truly being served why is it being done in the dark behind closed doors?

The higher judiciary which has been considered as the institution devoted to impartial justice has found itself facing criticism for the CJP’s hesitancy to remove himself from hearing a case against his own son, and even then only after giving remarks that could influence the outcome of the case. This combined with the noted lack of dissent on the bench and the lack of transparency in memogate casew have created doubts about whether the Supreme Court is following the constitution or whether it has become the private tribunal of one man.