Unanimously accepting the petitioners' plea for hearing the Memogate, the nine-judge bench of the Supreme Court on Friday set up a high-powered judicial commission to investigate the scandal. Which way the case would go from now on nothing can be said with any degree of certainty for it is the commission that would sift truth from fiction, providing the basic material to the apex court to finally give its verdict in the case. What the court has done by now is that it has essentially upheld the petitioners' case to the extent that the Memogate scandal deserves a thorough investigation. Meanwhile, the court would wait for the Parliamentary Committee on National Security's recommendations and should those be of any help to the commission in any way those would be accommodated. As to the question whether the Supreme Court can hear the Memogate case, the bench says yes it can, drawing sustenance from Article 184 (3) of the Constitution as the issue is of "public importance" with reference to not only the Fundamental Rights under Articles 9, 14 and 19A but also covered by the Objectives Resolution which is now part of the Constitution. To the extent whether the Memogate case merits hearing by the Supreme Court and if the court can set up a commission the controversy stands settled. But for our highly polarised politics where party loyalty more often than not prevails over constitutional responsibilities the Executive could have possibly avert the possibility of Memogate case coming up before the Supreme Court. It had the time and opportunity to take action on its own - by way of setting up a judicial commission, headed by the Chief Justice of Pakistan, comprising retired or serving judges and others from the civil society who command respect and confidence of the people, instead of handing it over to the Parliamentary Committee on National Security. If approached by the petitioners the apex court could tell them that the matter was being dealt with by an independent judicial commission, headed by the Chief Justice of Pakistan, and that is good enough. Unfortunately, however, that was not done for reasons too obvious to be repeated here. With so much water flown under the bridge by now the committee's recommendations, howsoever fair and impartial, would remain suspect in the eyes of the people. Bad enough, some of the government's so-called well-wishers have seriously damaged the Executive's case by their reckless statements - some of these being patently malicious against the higher judiciary. Thanks to their theatrics even if the parliamentary committee absolves the Executive of any role in the Memogate scandal to many it would be an eyewash. Given the murky backdrop, the Supreme Court's decision should be embraced with an open heart for in the prevailing atmosphere of political discontent only the said court can show us the way out of the deepening darkness of the prevailing uncertainty. Since the Memogate case as it plays out in the apex court and beyond as the public discourse it does have serious implications for the present rulers. But the much more profound element in the evolving scenario would stem from the question how the court's verdict would affect the fundamental rights versus national security debate. Of late, the higher courts in some countries have decided in favour of subordinating the national security to people's fundamental rights. Keeping that in mind it would be pertinent to ensure that in this case justice is not only done but is seen to have been done. For that the proceedings should be not only open to public eye but all concerned quarters should offer their unstinted, unreserved support rising much above political and other mundane considerations. The Memogate case pregnant with critical implications, above all it would clearly define the parameters of military-civil equation, supremacy of parliament, institutional limits and as to what constitutes fundamental rights. Copyright Business Recorder, 2012
Comments
Comments are closed.