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)…
This cesspool keeps growing larger and more murky from the time the CJ was called by General Musharraf in 2007 to resign! Frankly the cesspool was created in 1958 by another Army Chief and fully supported by the CJ of his time.Floating on this murky water is our present constitution all wet,dirty and smelling of poisonous fumes! What we need is new constitution which does not empower any institution/person in toto.
@Khalid Saheb welcome back, sir! Your comments have been missed. I don’t know if we need a new constitution completely, but certainly there needs to be some changes to make it clear that there is NO person or institution that has complete power and that ALL institutions must work together. In other words a better ‘checks and balances’ system and greater TRANSPARENCY for all.
The writer is criticising the commission of going beyond its mandate,but forgets the mandate as was given to the commision to find person responsible for this memogate.
As it was clear during the hearings,Haqqani totally refused give details of his telephones use.If he has nothing to hide,why refuse.
Moreover,being an ambassodor of the country he must look after the interest of the country and not the terrorist americans all the time.
He has always worked and wrote against the army.He should have never accepted the post in the first place.
Further,he is a fugitive and will never comeback to the country,so no chance he will put himself to the courts scrutiny.He is a runner,so,please,don’t defend him.
The news about Hussain Haqqani commission declaration that memo was formed and MR Hussain Haqquani originated the memo through his former fellow Mansoor Ijaz,it was notorious verdict and it was not widely appreciated,if court moved to make antidemocratic forces happy.its not the step of true justices.
when proceeding started it was very clear that supreme court had made their mind about MR Hussain Haqqani,not only that they looked in hurry to punish him as soon as possible,but the only hurdle was without trial,it wasn’t feasible,so they formed the commission immediately with speedy intention to convict him very seriously therefore media pro establishment started very vigorously campaign against him,even TV talk show before commission verdict they already or potentially declared him guilty.Now was the formalities to fulfil the establishment desired,commission did it with detestation anyone judge the intention of the commission.Hope in this circumstances if MR Hussain Haqqani go supreme court for justice he won’t be get justice.This judiciary is hostile,antagonistic and manipulated by the establishment.They decision are clearly exposed by their attention and desire,sorry to say before this weak pro-democratic government,dictator was ruling,all the time.Judiciary was under control and supported to them,but now the time has changed however establishment still ruling behind the scene through the judicial activism.So there is no hope for any transparency,this is the worst judiciary of all time.Their decision are not implemented the reason is executives think they are used their power over the constitutional authority. Pro establishment media presenting the judges like filmy Hero,and discredited to the democratic system’s.According to the council of Mr Haqqani this decision by commission was totally prejudiced and they did nothing but fought the case of Mansoor Ijaz and further she said judiciary should mend its ways and make good history.”Disgracing people is not justice.”So therefore hope and pray the stand with truth and honesty not to go under and with abhorrence attitude of justice.
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