Daily Times editorial Jan 11, 2012

Memo conundrum

The crisis over the memo case is deepening and intensifying. Prime Minister (PM) Yousaf Raza Gilani has, in one more flip-flop, stated in an interview with the People’s Daily of China that the affidavits submitted to the Supreme Court (SC) by COAS General Kayani and DG ISI Lt General Pasha in the memo case were “unconstitutional and illegal” because they had not sought prior approval of the competent authority under the rules of business. These affidavits, the PM argued, therefore carried no legal import. The PM was relying for this stance on an observation by Chief Justice Iftikhar Mohammad Chaudhry that any action by the armed forces without the federal government’s direction would be unconstitutional, illegal, void ab initio and of no legal effect. However, legal luminaries are of the view that the PM is now trying to shut the stable door after the horse has bolted, and that this position should have been submitted in the SC. It may be added that the country witnessed the PM declaring in parliament on December 22 that he would not permit a “state within a state”, only to backtrack a few days later to say he was referring to the secretary defence, who had deposed before the SC that the defence ministry had no operational control over the military and ISI, and only dealt with their administrative issues. These contradictory statements indicate a level of tension between the government and the military that some observers interpret as the ‘endgame’ for this government.
While the PM is treading furiously in the water in the face of a widely held perception that the military, judiciary and the opposition (PML-N) have joined hands to put pressure on the government through various means to finally persuade it that its time is up, there is also a perception that the PPP has decided not to go down without a fight, if it comes to that. That would position the party on an advantageous perch to return to the electorate by playing the ‘victim’ card. One indication of the shape of things to come is the proceedings of the commission set up by the SC to probe the memo affair. Former ambassador to the US Husain Haqqani has appeared before the commission, but refused to surrender his privacy rights regarding the messages, etc, on his Blackberry. At the same time, he has also challenged the December 30 short order of the SC that disallowed him to leave the country without the court’s prior approval. In his review petition, he has prayed that the proceedings of the memo commission be stayed until his review petition is decided. He has also questioned the authority of the SC to set up a commission composed of three high court chief justices, since the high courts are not under the jurisdiction of the SC.
The memo commission in the meantime has ordered the government to grant Mansoor Ijaz, the initiator of the whole memo brouhaha, a visa and provide him security within Pakistan. Although the authorities responded positively to this direction, the question lingers in the mind whether the commission has the power to give such direction to the government, given that its mandate is to investigate the affair and report back to the SC. The commission has rejected the DG ISI’s request for an in-camera briefing, asking him to forward any sensitive material he may have in a sealed envelope. The commission also wants all parties except Haqqani, Mansoor Ijaz and the army top brass to send it a list of all evidence by January 13, in preparation for its next hearing on January 16.
Nawaz Sharif is at pains these days to defend his going to the SC, while asserting his no-confidence in parliament and its committee on national security, charged by the PM to probe the memo affair. No doubt, this defence is in response to the criticism he is facing these days on betraying an anti-democratic frame of mind vis-vis parliament. In the US, scholars and the administration are seized of the memo conundrum, hoping it does not end up destabilising the democratic system and thereby the country. How all this will play out only time will tell. These developments have, however, focused minds once again on the separation of powers issue, as well as the civil-military imbalance.