WHO wrote the memo? Will Mansoor Ijaz come to Pakistan or not? Did President Zardari have a role in the memo issue?

In the long run, these questions are not significant to the future of Pakistan. But what is of paramount significance is the thought process of the Supreme Court (SC) as disclosed by its judgments/decisions because it is the jurisprudential vision of the SC that will have a major impact on Pakistan’s long-term political future.

Following the short order dated Dec 30, 2011, the SC, in an 82-page judgment, has given detailed reasons as to why it heard the memo petitions and why it constituted the judicial commission to investigate the memo issue, with Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawwad S. Khawaja and Justice Ejaz Afzal Khan giving separate reasons for ordering such a judicial inquiry.

Starting with a quote from the Bible and Hakeem Ghaznavi and in only five pages of reasoning, Justice Khawaja tries to develop a grand constitutional discourse on the seemingly innocuous fundamental right to information as guaranteed under Article 19A of the constitution.

His Lordship Justice Khawaja holds that the petitioners’ demand to know the facts about the memo issue is actually guaranteed as a fundamental right to have access to information under Article 19A of the constitution. But he goes further and holds that this right to information is actually linked to human beings’ intrinsic search for the truth.

In short, the search for the legal truth, in the context of political (PML-N vs PPP) and intra-state (government vs army) conflicts, is transformed into a Sufistic and religious search for truth.

But Justice Khawaja’s constitutional discourse goes further by holding that the access to information is the “foundational bedrock of representative democracy” as “informed choice” provides the ability to evaluate and check politicians. In short, a critical conceptual bridge is developed between the innocuous right to information on one hand and truth and representative democracy on the other.

Justice Ejaz Afzal Khan, in his separate reasons, develops the linkage between the security and dignity of the person and the security and dignity of the state. In other words, if the memo threatens the security and dignity of the state then ‘logically’ the memo must also threaten the security and dignity of the person for the simple reason that the “state is a
fortress protecting such rights”.

Therefore, behind such innocuous ‘logical’ linkages, the security and dignity of the person has been conceptually linked to a one-sided conception of security and dignity of the state, in which the ‘state’ is politically defined in the limited terms of strength, stability, solidarity and sovereignty.

After a detailed examination of the factual record, Chief Justice Iftikhar Chaudhry in his separate reasoning, lays bare the basic facts — Haqqani himself resigned, he himself asked for a probe into the memo issue and after high-level meetings, the prime minister ordered a probe through a parliamentary committee.

Therefore, on the assumption that the memo compromised the “security, sovereignty and independence of the country” and all “loyal citizens” should raise their voices against it, the chief justice’s judicial conclusions are simple — this is a matter of public importance involving enforcement of fundamental rights.

As for the objection that this is a political question best resolved through political and parliamentary forums, the chief justice’s answer is two-pronged.

Firstly, political issues have been brought to the courts in the past and if the court “has jurisdiction to exercise power of judicial review”, it is irrelevant that it involves a political question. In short, if the SC thinks the issue is important and they can resolve it, they will resolve political questions.

Secondly, the judicial commission was considered a better forum for such probes as its very judicial nature ensures fairness, impartiality and due process.

The 73 pages’ separate reasoning of the chief justice leaves us with a lasting impression — there is a presumption that the judicial method and process is inherently suitable and desirable in resolving our complicated and delicate political issues.

A few thoughts on the above reasoning.

Firstly, how does the right to know and right to information lead to the right to judicial inquiry? Article 19A of the constitution does not imply that the access to information should be through a judicial commission.

Secondly, the discovery of the ‘truth’ is a complicated and delicate process with no certainty of success. Should the judiciary take it upon itself to be the successor of the Sufistic and religious search for the ‘truth’? Or should this burden of ‘truth’ be shared with other forums i.e. political institutions, academics, citizens?

Thirdly, the state is defined in limited terms of strength, stability, solidarity and sovereignty. But is this not also the military establishment’s definition of the security state as opposed to the welfare state that was the clarion call of the lawyers movement?

Fourthly, what about the other dark ‘truths’ of our times e.g. the destruction of the political and constitutional structures of this country by the military establishment and detentions, tortures and extra-judicial murders committed during martial law regimes?

Thus, the problem is simple. The judges have to select issues to decide. Not all issues can be, or are, selected for adjudication. In short, any exercise to ‘seek the truth’ or ‘do justice’ is inherently selective. Therefore, judges have to be aware of their presumptions and unexamined mindsets in this selection process.

Fifthly, there must be a criterion as to which political issues can, or should, be decided by the judiciary. Some criterion of ‘desirability/justiciability’ has to be laid down.

But judicial adjudication of political issues cannot be, and will not be, avoided in this transitional democratic period in Pakistan because adjudication of political issues confers tremendous power on the courts and at times, acts as a safety valve for democracy.

Thus, the main judicial challenge is not to avoid politico-constitutional adjudications but rather how to conduct such adjudications and in doing so to confront their subconscious jurisprudence i.e. their judicial presumptions and unexamined prejudices.

The writer is a lawyer.