By B. Raman
There are four factors in the current War of Nerves in Pakistan which centres around mutually contradictory perceptions of the alleged unconstitutionality and illegality of the actions taken by different institutions of the state in relation to the hearing in the Pakistan Supreme Court on the veracity of the so-called Memogate.
To recall, the Memogate scandal refers to the allegations made by Mansoor Ijaz, a US citizen of Pakistani origin, that the civilian leadership in Pakistan apprehended a coup by the Army after the US raid in Abbottabad on May 2 last which led to the death of Osama bin Laden. Ijaz had further alleged that in the wake of these fears the civilian Government used his contacts in the US administration through Hussain Haqqani, the then Pakistani Ambassador in Washington DC, for having a memo reached to Admiral Mike Mullen, the then Chairman, US Joint Chiefs of Staff, seeking US intervention to prevent a coup.
The allegations of Ijaz triggered off three parallel enquiries — by the Army and the Inter-Services Intelligence (ISI), by the committee on national security of the National Assembly assisted by the Ministry of the Interior and the Supreme Court.
The Army was the first to move in the matter. Gen. Ashfaq Pervez Kayani, the Chief of the Army Staff (COAS), despatched Lt. Gen. Ahmed Shuja Pasha, the Director-General of the ISI, to question Ijaz in Europe and take over from him his phone records pertaining to his telephone conversations with Haqqani in this matter. Kayani did not keep the Government of Prime Minister Yousef Raza Gilani informed of his action in this matter.
While it would be difficult to characterise the Army’s action as unconstitutional or illegal, it was definitely incorrect. Kayani should have taken the prior clearance of Gilani before despatching Pasha to Europe for questioning Ijaz.
The Govt of Gilani was the second to move in the matter. It moved for an enquiry by the Committee on National Security of the National Assembly into the allegations of Ijaz, which were denied by Haqqani, who returned to Islamabad to face the enquiry and resigned. The Govt. ordered the Ministry of the Interior, which controls the Intelligence Bureau (IB) and the Police, to assist the enquiry by the National Assembly committee. It did not seek the assistance of the ISI in the enquiry.
Up to this point, the action of Gilani was constitutional, legal and correct. But after moving for an enquiry by the National Assembly committee, Gilani took another action which was incorrect and which could turn out post facto to be illegal if Haqqani is found guilty of treason for seeking the intervention of a foreign power against the Pakistan Army. Gilani took Haqqani under his physical protection instead of ordering the Police to strengthen his physical security. Initially, Haqqani allegedly lived in the house of Zardari and then moved into a building controlled by the Prime Minister’s Office and its security set-up. This was totally unwise on the part of Gilani.
The Supreme Court was the third to move in to add to the confusion. It received a number of private interest petitions seeking a judicial enquiry into the allegations made by Ijaz against Haqqani. One of the petitions was from Nawaz Sharif, former Prime Minister and the leader of the Pakistan Muslim League (Nawaz faction). The main intention of Nawaz in moving his petition was to exploit Ijaz’s allegations in his campaign against President Asif Ali Zardari and to teach a lesson to Haqqani, who in the 1990s had betrayed Nawaz by defecting from the PML to Benazir Bhutto’s Pakistan People’s Party (PPP).
Chief Justice Iftikhar Mohammad Chaudhury issued notices to the various dramatis personae calling for their comments on the sustainability of Nawaz’s petition and the follow-up action to be taken by the Supreme Court on it. The Govt. of Gilani held that Nawaz’s petition for a judicial enquiry was unsustainable and that only the National Assembly Committee was competent to enquire into it. The Army took up a position which indirectly endorsed the demand for a judicial enquiry on the ground that the allegations made by Ijaz, if true, had national security implications. The Defence Secretary, in his reply to the Supreme Court, took up a position which sought to endorse the position of Kayani and not Gilani.
Kayani and Pasha had submitted their proposed replies to the Supreme Court to the Defence Secretary Lt.Gen. (retd) Khalid Naeem Lodhi for vetting before forwarding them to the Supreme Court. The Defence Secretary allegedly forwarded their replies into the Supreme Court without telling Gilani about it and without the approval of the Cabinet as required under the rules of procedure relating to Govt. business.
There was a furore in the PPP and the ruling coalition over the actions of the Defence Secretary who has been removed from his post by Gilani after an enquiry into his unauthorised actions.
After considering the replies received from the dramatis personae, the Chief Justice rejected the opposition of the Gilani Government to a judicial enquiry and ordered a judicial enquiry by a commission headed by the Chief Justice of the Balochistan High Court and consisting, among others, of one more provincial Chief Justice. Hussain Haqqani has challenged the constitutionality of the action of the Chief Justice in appointing an enquiry commission consisting, among others, of judges of provincial courts. While the Chief Justice plays a role in the appointment of the judges of the provincial courts, under the Pakistan Constitution, according to Haqqani’s petition, the provincial High Courts are not subordinate to the Supreme Court. While the Chief Justice can appoint an enquiry commission consisting of judges of the Supreme Court, he cannot include provincial judges in it. In such matters, the power to appoint an enquiry commission with judges of provincial courts is with the Government and not with the Supreme Court. The Chief Justice has admitted Haqqani’s petition and ordered a hearing into it. But he has not accepted Haqqani’s request for a stay of the proceedings of the judicial commission till the hearing is completed and a ruling is given.
In the meanwhile, knowingly or unwittingly, China became a factor in the internal controversy between the Government of Gilani and Kayani. The COAS went on a five-day visit to China on January 4. During his talks in Beijing, Chinese leaders, including Prime Minister Wen Jiabao, highlighted the role of the Pakistan Army in the strengthening of the strategic partnership between the two countries. Before Kayani left for Beijing, the party-controlled People’s Daily sought an interview with Gilani on the on-going controversy. In his replies to questions from the People’s Daily, Gilani reportedly described the actions of Kayani and Pasha in submitting their replies to the Supreme Court directly without getting them vetted and approved by the Government as unconstitutional and illegal.
So far, my Google searches have not yielded an authentic version of Gilani’s interview to the People’s Daily. The only version that is available is the one disseminated by the Pakistani media. Since Gilani has not denied Pakistani media reports of his interview to the People’s Daily, the Pakistani media reports in this regard must be taken as correct.
The most significant part of this injected China factor is that Beijing has praised the Army during Kayani’s visit without referring to his tussle with the Government and at the same time used the party journal for disseminating Gilani’s version of the tussle. Thus, it has sought to remove any impression that its sympathies were with the Army.
Kayani has reacted promptly to Gilani’s allegations made in his reported interview to the People’s Daily. In a statement issued through the media cell of the GHQ, the Army said: “There can be no allegation more serious than what the honourable prime minister has levelled against COAS and DG ISI and has unfortunately charged the officers for violation of the constitution. This has very serious ramifications with potentially grievous consequences for the country”. The statement has underlined the fact that the replies of Kayani and Pasha were forwarded to the court through the Defence Secretary and not directly and hence there is no unconstitutionality or illegality by the Army and the ISI.
The statement significantly added: “Allegiance to state and the constitution is and will always remain prime consideration for the respondent, who in this case has followed the book.”
18. What are the implications? The Defence Secretary, Kayani and Pasha were enjoying an extended tenure granted by the Government. The post-retirement contract of the Defence Secretary has been terminated by the Government due to his role in the controversy. The Army and the ISI apprehend that the Government might be contemplating a similar reversal of the extended tenure granted to Kayani and Pasha.
19. The Army has conveyed a message to the civilian leadership that while it has no intention of acting against the Government at present, it may not hesitate to act if the Government humiliates Kayani and Pasha by having them removed from office by cancelling their extended tenure.