Memogate damp
squib
After eight
years of inconclusive meanderings, the Supreme Court (SC) finally delivered the
coup de grace to the infamous Memogate case on February 14, 2019. It may be
recalled that former ambassador to the US Husain Haqqani was accused of
allegedly sending a memo to then US military chief Admiral Mike Mullen through
a Pakistan-origin businessman of allegedly dubious repute, purportedly asking
for US help for the civilian elected government of the Pakistan People’s Party
(PPP) against any attempt by the Pakistan military to oust it in the wake of
the killing of Osama bin Laden on May 2, 2011 in a compound in Abbottabad. When
the alleged incident was brought into the light of day by Mansoor Ijaz, a
furore broke out in Pakistan with cries of ‘treason’ and similar sentiments
rending the air. Before even the facts had been examined and verified, the then
Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry jumped the gun and
took suo motu notice of the matter. Subsequently then opposition leader Nawaz
Sharif and others also moved petitions in the SC against the alleged memo, a
step Nawaz Sharif later admitted was a mistake. Ambassador Haqqani was summoned
home and after a meeting with then president Asif Ali Zardari and the military
top brass, especially then COAS General Ashfaq Kayani and ISI chief
Lieutenant-General Ahmed Shuja Pasha, Haqqani resigned. He departed for the US
after committing to the SC that he would return if and when required. Meantime
the SC set up a judicial commission to probe the affair. The commission issued
its report that concluded the purported memo did exist (Mullen belatedly also
had admitted its existence but said he did not take it seriously) and that
Haqqani was its mover and author. The commission’s report’s credibility was
weakened though by the fact that whereas it had allowed Mansoor Ijaz to depose
before it via video link from abroad because he said he was not safe in
Pakistan, it rejected a similar request from Haqqani. The report therefore
suffered from the one-sided frailty that it had not given Haqqani an
opportunity of a hearing. After the report was submitted, the efforts to bring
Haqqani back to Pakistan, presumably to stand trial, began. However, efforts
through Interpol in this direction failed. So too did belated efforts (or
afterthoughts) to have Haqqani extradited from the US through Interpol on
embezzlement charges. In both instances, Interpol rejected the requests to
issue an international arrest warrant for Haqqani. Although Pakistan does not
have an extradition treaty with the US (which of course never stood in the way
of rulers like Musharraf handing over citizens to Washington during the war on
terror), it was Interpol’s jurisdictional issues that prevented the result
desired by the authorities.
When a SC bench
headed by CJP Asif Saeed Khosa finally took up the case, the CJP wondered why
so much of the court’s precious time had been wasted on a matter in which
neither the petitioners appeared nor any adjournments were sought. When his
attention was drawn to the possibility of the Federal Investigation Agency and
National Accountability Bureau following up the FIR registered against Haqqani,
the CJP cut to the heart of the issue by asking whether the state of Pakistan
and its military were so weak that they could be shaken by a mere memo? The
fact is that the memo’s being traceable back to Haqqani was never irrefutably
established, the judicial commission did not give him the opportunity of a
hearing, and the case lay in cold storage because of lack of being pressed by
the petitioners. Post facto embezzlement charges against Haqqani seemed to be
transparent attempts to persuade Interpol to act in the matter. It goes to the
credit of the SC under the new CJP that it has finally dismissed the whole
so-called Memogate case as a damp squib. It seems unlikely after this result
that the present government would be interested in pursuing a matter that
appears dead in the water, and even it so chose, would be unlikely to generate
much traction. The lesson to be learnt from the affair is the need for the
superior judiciary to return to its time-honoured judicial restraint, which the
present CJP seems on the way to implementing, and for state institutions, media
and other actors not to be taken in by what appears with hindsight to have been
an attempt to get at then president Zardari and the PPP government by throwing
mud at its ambassador in Washington.
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