Passport, Please
By Dr Mohammad Taqi
Florida
MIA — Mansoor Ijaz absconding! Well, at least so far the man has been living up to every expectation: megalomania, narcissistic tantrums, a desire for media attention (the Americanism for which is rather impolite to quote here) and the prediction that when the time comes, he will go MIA.
The so-called Memogate case was a farce from the word go but has really become a circus now with the main petitioner not willing or not interested in pursuing the charges and the star witness — not the accused — absconding. Even in the old Urdu/Persian adage ‘muda’ee sust, gawaah chust’, it is the accuser who is slack (in pressing the case) while the witness is overactive or oversmart. Okay, Mansoor Ijaz is the accuser-cum-witness but an absconder all the same. Let’s face it, the only potential smoking gun in this case could be a voice recording, which, had it existed, would have surfaced by now. Minus that, Ijaz will remain a no show. Indeed, the only party that now remains overzealous is the superior judiciary.
After Mansoor Ijaz played hooky, the judicial commission headed by Balochistan High Court’s honorable Chief Justice Qazi Faez Issa said that the commission will not travel abroad to record Ijaz’s statement but will send its secretary to meet him aboard his flight to Pakistan. Directives were issued again that ‘foolproof security’ be provided for his ‘arrival, stay and departure’. And just in case they have to wait on him this third time as well, the commission will write to the Supreme Court (SC) of Pakistan requesting an extension in its four-week deadline to finish the probe. Is Mansoor Ijaz’s plane Air Force One now? Prime Minister Yousaf Raza Gilani was not that off the mark to question the vice-regal protocol Ijaz has been demanding.
What if he says no to the gracious offer to be interviewed mid-air, citing concerns — say about surface-to-air missiles — will the lordships, in their full regalia, proceed to the tarmac to record his words of wisdom? What about the scores of attorneys and their legal teams to represent Ijaz or cross-examine him; will they tag along too? Are the umpteen petitioners and their uncle also going to accompany them?
One can only wish that the Pakistani superior judiciary, restored through toil and blood, had shown similar interest and perseverance in clearing the backlog of over 1.5 million cases pending at various levels of the legal system. Some diligence — at least in an inquisitorial role — to probe the parallel justice system of ‘Dar-ul-Qaza’ set up by Mullah Fazlullah and Sufi Muhammad, might have gone a long way to give reprieve to the people of Malakand when they had needed it most.
The perception that the judiciary is increasingly becoming part of the problem, and not the solution, is being echoed consistently by the leaders of the successful lawyers’ movement, the outspoken Ali Ahmed Kurd being the latest. The two most important concerns are that firstly, the judiciary is expanding its jurisdiction beyond the ‘ancient mere stones’ and secondly, how fundamental rights are being rendered subservient to state security while holding the latter to be synonymous with the public interest.
That great torchbearer of the separation of powers, Thomas Jefferson, had aptly noted: “Judicial activism makes a mere thing of wax in the hands of judiciary, which it can give the shape as it wishes.” The pronouncements from the august SC bench in the recent past have raised serious concerns about what shape the lordships wish to give things in Pakistan. Some of the verbiage in the December 30, 2011 Memogate judgment should have raised not just eyebrows but red flags. Alas, that seasoned campaigner, Asma Jahangir, was the only one to point out that the drastic mutations being (re)introduced will come back to haunt everyone.
In his conforming note, honorable Justice Ejaz Afzal Khan wrote: “Security of person is one of the most important fundamental rights. It is inextricably linked with the security of the state ... Security of person in the absence of a strong, secure and stable state would be inconceivable. It would be as imaginary as drinking water from a mirage. Therefore, fundamental right of person would stand infringed the moment something tending to imperil the security of state is done.”
This note has an uncanny resemblance to the language used by the late Justice Munir in support of his validation(s) of the Ayub coup d’état. In addition to claiming, “That which is otherwise not lawful, necessity makes lawful,” Justice Munir had also introduced two other perversions: 1) salus populi suprema lex (the safety of the people is the supreme law), and 2) salus republicae est suprema lex (the safety of the state is the supreme law). He had additionally cited cases dealing with appropriation of citizens’ property or liberty for defense of the realm. In essence, this abhorrent anomaly — which even Hans Kelsen had to distance himself from — has provided cover to every military adventurist in Pakistan and contributed to the national security state paradigm where the ‘realm’ can take away the individual’s rights to liberty, property, adult franchise and self-governance.
Unfortunately, the very first casualty of this reincarnation of Justice Munir was Husain Haqqani’s fundamental right to liberty in the present case. The court has virtually flipped on its head Article 9 of the constitution that “no person shall be deprived of life or liberty save in accordance with law”. While convoluted reasoning was presented to justify why the petitioners’ fundamental rights were infringed, Haqqani’s rights were trampled upon.
Some analysts have dismissed that there was any nexus between the army, the petitioners — especially Nawaz Sharif — and the judiciary. Maybe they were not in cahoots and it is all merely a confluence of interests. But from what some of us have gathered, the plan to drag Husain Haqqani into court and put him on the exit control list (ECL) was well underway before he landed in Pakistan. In fact, his flight home was being monitored by the brass via the defense attaché at the Pakistani Embassy in Washington, DC. No sooner did he land than his travel documents and passport were snatched away. The question is: on whose orders and by whom?
The SC must clarify if Husain Haqqani’s passport was taken away on its directive or with its knowledge. Nothing unlawful has been proved against him and Article 9 must be upheld now. The SC must return Haqqani’s passport please — or say that they do not have it.
( The writer can be reached at mazdaki@me.com)
