Daily Times editorial Dec 3, 2011

Memogate in the SC

The Supreme Court’s (SC’s) order setting up a commission headed by Tariq Khosa to probe and report back within three weeks on the ‘Memogate’ controversy has sparked off another executive-judiciary confrontation-in-the-making. The nine member SC bench hearing Nawaz Sharif and others’ petitions on the issue also sent notices to the president, COAS and DG ISI to respond within 10 days, and ordered ex-ambassador Husain Haqqani not to leave the country until the commission had completed its work. Nawaz Sharif himself appeared before the bench and read out his petition, whose underlying justification was that parliament had disappointed in performance, hence the petitioner had approached the SC.
In response to the order of the SC, Babar Awan and other PPP leaders launched a virulent attack on the proceedings, arguing that only the executive can set up a commission under the relevant law. Babar Awan argued that the petitioners should have waited for the parliamentary committee on national security headed by Senator Raza Rabbani to conduct its inquiry into the affair. Approaching the SC even before that committee had started its investigations was tantamount to depreciating the role of parliament. He asserted that the executive and parliament’s turf would not be allowed to be encroached upon by any other institution of state. Also, he contended that the SC passed the order without giving the federation a chance to be heard. On this point, the PML-N has responded by saying the Attorney General was present and did not object to the order. However, the Attorney General has since clarified that he was there in response to the court’s notice and was not representing the federation per se. Without saying so in so many words, Babar Awan implied that the PPP rejects the Khosa commission and left open the question whether the government would cooperate with it or not. He did say however, that the commission would be subjected to a legal challenge. Awan defended Haqqani against the, according to him, ‘unnecessary’ order not to leave the country when the ex-ambassador had himself returned, stated he had no intention of leaving, and resigned to ensure a transparent probe. Awan also lambasted Khosa and his ‘connections’ in the judiciary and bureaucracy, implying a lack of confidence in the impartiality of the officer. He then went on to contrast the treatment the PPP and the PML-N had received from the courts, implying the latter got relief and the former never did.
Statements from various sources that the PML-N chief and his entourage were given special protocol by the SC were firmly rejected the next day by the court with a warning that such utterances about the court could attract contempt.
There is no denying that Memogate has rocked the country and the democratic dispensation to its foundations. While most objective observers decry the implied veracity of Mansoor Ijaz’s claims, there is no denying the need to get to the bottom of the affair, and that too transparently. The memo delivered through General (retired) James Jones to Admiral (Retired) Mike Mullen, which Ijaz alleges was sent with the blessings of Haqqani and the president, has been compared during the proceedings by the Chief Justice with the Nixon-Watergate scandal. While many things still remain to be settled, the most important being the truth or otherwise of Mansoor Ijaz’s alarming claims, the SC’s order and the ruling party’s response promise a new round of confrontation between the executive an d the judiciary, a prospect that will cause a sinking feeling in most citizens tired by now of the seeming inability of the institutions of state to work together in harmony, while recognising and respecting each other’s purview. The division of powers at the heart of our constitutional construct still remains to be firmly delineated. All sides should exercise restraint and let the facts come out, whether through the commission or the parliamentary committee, and not prejudge the issue from anything resembling a partisan position.