By: Eyaz Haider
One thing we can all be sure of: the memogate episode has become the most interesting civil-military battle in Pakistan’s history. The battle may be unfolding in the legal-constitutional terrain — which is good — but it is essentially a politico-normative contest. Asma Jahangir’s public riposte to the Supreme Court’s (SC) decision has, therefore, to be seen not in legal but political terms.
Purely legally speaking, she is wrong. Politically, she is right. That’s the dilemma. What she asked the Court to do is to look at the issue beyond the strictly legal. The Court wants to remain grounded in the legal. There is a memo, prima facie; its contents are quite explosive; it was also delivered. There is no dispute on these counts. The issues of contention are who wrote this memo, or on whose direction it was written and whether it was delivered to a foreign government for the purposes for which it was created/drafted.
The SC thinks it is important to “ascertain the origin, authenticity and purpose” of this memo because if it is accepted that its origin from the presidency, given the contents, could plausibly lead to impeachment proceedings against the president then the petition before the SC is not only maintainable but the Court is right in ordering the formation of a three-member commission to get to the bottom of this.
The problem is that if this memo can actually be traced back to the presidency then that is a major setback to the civilians. Those who do not like President Asif Ali Zardari may find that satisfying but the problem with that approach is that this issue goes beyond personal likes and dislikes. If he gets nailed, the civilians lose. None of us should want that.
Ms Jahangir, in her criticism of the SC, has taken no prisoners. But she has asked the Court to do something more than legal, which it cannot. The SC knows that the other party, the military, is relying on the legal — so far. Of course that is not because the military is suddenly headed by Mother Teresa but because it realises the limitations of exercising the nuclear option. Even so, its no-first-use policy doesn’t mean it cannot ride out a first strike and launch its own second strike.
So, if the military is relying on the legal, the Court shall stick to the legal too instead of going up the escalation ladder as Ms Jahangir clearly wanted the judges to do. The petition was not filed by the military but the government’s political opposition, and while the government is agitated, the military says the issue is sub judice and it is satisfied with the legal-constitutional route.
The question at this stage is: if the memo is the product of Mansoor Ijaz’s heat-oppressed brain, why should the government be so nervous about the formation of this commission? In fact, far from opposing the decision, it should welcome it so the issue can be rested.
But what if the memo did happen in the way that Mr Ijaz says it did and the judicial commission ends up corroborating his account?
Then we have a problem. And the problem is not just that this government would be tarnished but we will have the bigger problem of the civilians losing out to the military without the latter having mounted a coup.
Not only that, and this is where the biggest irony of this issue resides, the initiator of all this, through his petition, would have been Mian Nawaz Sharif, the man who opposed the military to the point where the military deemed him a bigger threat and opted for holding its nose and working with the current government. Mian Sahib, in trying to pull his political opponent down, will have ended up strengthening the very organisation that he never tires of holding responsible for derailing democracy. His assertion that he will oppose with all his might any extra-constitutional attempt by the military is naive because the military has no plans of doing that.
That civilians are superior is the normative belief. But while civilians have the absolute right to be wrong, they don’t have the right to be stupid. Reality never overlaps a normative belief. How superior the civilians are depends on how effective they are and effectiveness is a function of taking responsibility, not Byzantine intrigue.
And the military? One waits for the day when they will begin to think strategically — i.e., that the biggest threat to Pakistan is the civil-military fault line. That while they may bludgeon this government with the memo hammer, their victory will lead to strategic defeat for this country. They need to find out ‘why’ this has happened (if it did), not who did it. And the why will lead them to themselves.
The writer is a visiting fellow at the Brookings Institutions’s Foreign Policies Studies Programme. This is a cross post from Express Tribune.