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 the 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, the 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 the then president Asif Ali Zardari and the military top brass, especially the 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 an 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 the then president, Asif Ali Zardari, and the then PPP government by throwing mud at its ambassador in Washington.