On January 29 last year, Chief Justice Saqib Nisar had suddenly asked the question, “Where is Husain Haqqani?” in the middle of a case about voting rights for overseas Pakistanis. He then went on to reopen the seven-year old Memogate case, which had been shelved by four of his predecessors.
Almost a year, and several hearings later, Justice Nisar has retired as Chief Justice, adding 2,125 more cases to the list of 40,000 cases pending in the SC. Haqqani continues to live in the United States and travels all over the world.
In his quest for Haqqani, Justice Nisar first discovered that there were no criminal charges registered anywhere in Pakistan against the former ambassador. Apparently Haqqani had been bad-mouthed in Pakistan’s media from 2011 (when he stepped down as ambassador) until February 2018 without a single criminal charge being filed against him.
This anomaly was clumsily rectified by hurriedly filing various FIRs around the country by several people on grounds of treason even though the law clearly states that treason charges can only be filed by the state.
Ironically, former President General Pervez Musharraf, who faces a treason case brought against him by the government through due process, remains out of the country. CJ Nisar made no serious effort to repatriate Musharraf, making his enthusiasm against Haqqani seem misplaced.
Moreover, anyone with a modicum of knowledge of international law would have known that treason is defined as a ‘political offense’ and is not subject to extradition.
The many court hours wasted on pursuing a man who has committed no crime beyond having views some Pakistanis do not like, could be used to deal with the tens of thousands of pending cases
It was embarrassing when warrants issued against Haqqani were rejected by Interpol on grounds that refusal to appear before the Supreme Court in a political case and charges of treason were both outside the jurisdiction of Interpol.
The outgoing Chief Justice continued to discuss, in open court, how Haqqani could be brought back after Interpol’s refusal to act. He even appointed an Amicus Curiae, a lawyer supposed to be an expert in international law to figure out how to repatriate Haqqani.
It was almost comical for a Chief Justice to be saying, “I want this man back, so let us find a case that will lead Interpol or other governments to act against Haqqani.” Normally, judges should not encourage invention or initiation of charges against individuals.
Subsequently, corruption charges were filed against Haqqani on advice of the Deputy Attorney General and the Amicus Curiae in the hope that these might force his repatriation.
If anything, filing of charges seven years after Haqqani’s resignation as ambassador and without any new evidence only made it apparent that the former ambassador was being hounded.
A First Information Report claiming that a crime was committed seven to 10 years ago is hardly credible and runs contrary to statutes of limitations in most countries. In the U.S., a case must be filed within five years of an alleged crime.
Interpol refused to act against Haqqani a second time, recognising the political nature of the proceedings. The CJ then decided to conduct hearings in camera.
At the last hearing, Justice Nisar seems to have been told that an extradition request to the U.S. government could be one way of repatriating Haqqani. Given the lapse of time and other factors, it is impossible that the U.S. would extradite a former ambassador and a prominent scholar. If filed, the extradition request would certainly have been turned down.
The former Chief Justice was obviously taken in by the hype over the so-called Memogate case, not realising that it has no resonance beyond Pakistan’s noisy electronic media.
It is time to bury the Memogate case, which was taken up by then Chief Justice Iftikhar Chaudhry as part of his political agenda against the PPP, and then president Asif Zardari. Memogate was a product of media noise, aided by Justice Chaudhry’s love for media attention.
The petitioner in the case, Mian Nawaz Sharif, later acknowledged he had made a mistake in bringing the petition before the Court at the urging of hidden hands.
CJ Nisar erred in his populist enthusiasm in reopening the case after four Chief Justices between him and Iftikhar Chaudhry chose not to even schedule a hearing of the matter.
Now that Mian Saqib Nisar has retired, his successor should consider pursuing the original Memogate petition as infructuous.
The Supreme Court is not a trial court and the original issues in the petition, which were controversial to begin with, have become redundant over time. The sole ‘witness’ and accuser in the matter, one Mansoor Ijaz, seems to have disappeared from public view; Haqqani cannot be brought back; and most jurists agree that the grounds on which the petition was decided were flimsy at best.
Condemning Haqqani’s opinions, and talking about ways to force his return, might generate headlines in the local media but they do not affect his ability to write and speak internationally. What, then, is gained from keeping the so-called Memogate case alive?
The many court hours wasted on pursuing a man who has committed no crime beyond having views some Pakistanis do not like, could be used to deal with the tens of thousands of pending cases that affect the lives of people.
The author is a Pakistan-origin businessman based in Canada
Published in Daily Times, January 21st 2019.