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User Name: Amjad_Malik
Full Name: Amjad Malik
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Action & Reaction
 by Barrister Amjad Malik
 on Wednesday, December 28, 2011 at 2:30am
Rescinding the military leadership contracts on account of their response in Memogate case is an action though denied by Pakistani premier still it carries serious implications and repercussions as outlined by the news story on 26 December, 2011, later affirmed by New York Times. This standoff cannot be allowed to continue longer. Security establishment has taken a stand on ‘Memogate’ and its terms offered to United States which carry a national security element. Things are developing in Pakistan very fast and events are unfolding rapidly which call for a seriousness in approach and an independent probe in this issue. Govt is reluctant to call spade a spade and insisting on parliamentary committee enquiry whereas matter as sensitive where Govt may be a party requires an independent probe, either by a sitting judge and or a commission highly powerful with some teeth. History of Pakistani commissions, its findings and bringing those to account is not promising and trials seldom takes place having overall consensus on fairness. even current Pak President has been complaining to be a victim of 'delayed justice' and opposition leader on waiting list for justice during dictatorship regime.

If the PM having power decides to end contracts of General Kayani and Pasha, both may plainly obey the orders and may step aside but their institutions may overreact like we saw on 12 Oct 1999 when General Musharraf was sacked whilst overseas and his parent body (GHQ) took over unlawfully later ratified as legal by courts (Zafar Ali Shah case 2000). Having said that those who would be dismissed may react too and may take matters in his own hands before civilians actually complete the transaction. If sane, They may also go to Supreme Court pleading for relief that they have been wrongly dismissed only once national security matters have been addressed befittingly and responded as directed by superior court, and may be allowed to continue whilst the case is pending. Alternately, petitioners may go to court in a 2 November 2007 style application for injunctive relief to stop the Govt to act in an irrational way as suggested by the newspaper. They may seek a stay order of an envisaged action to dismiss those Generals having a potential of a severe reaction which has repercussions for state clouding on the rule of law and constitutional civilian rule in the country.
Chief Justice is well aware of those circumstances in the backdrop of Gen. Musharraf's 3 Nov 2007 emergency. In fact seven member bench prohibited the then President Musharraf to abstain from issuing a Provisional Constitutional order and or deviancy an emergency suspending basic rights as was feared then by lawyers, civic society plus media, political parties and diplomatic enclaves.
Supreme Court if feels that in order to do complete justice and to avoid interference in ongoing case may direct all forces to come to aid the SC in the case under ongoing hearing. That may include prohibiting the President, Prime Minister not to end contracts prematurely whilst case is pending and may also direct any other Officer of the Court or institutional head to do certain actions which are needed to preserve justice.

If the behavior of certain executive to pervert the course of justice continues, SC using its inherent powers may bar those functionaries to perform their actions until the matter at hand is concluded to a satisfactory stage where not only enquiry is held in a safe manner but further possible damage to national security is avoided. Having looked at prima facie issue, and coming to some general opinion that there is a case to answer in that Memo and after obtaining on record the security establishment’s view, as well as other parties and Chief Executive supporting the cause by seeking resignation of his USA envoy, the Supreme Court may not allow longer to blatantly restrict the course of any independent enquiry on the ‘Memogate’. Govt’s disrespect and locking horns with one or the other institution will be considered a delaying tactics and may be taken as a partial complicity if all avenues are blocked, and public may seek resignation and or removal of all those involved as alleged whilst investigation is taking place and a safe verdict is announced so that such a serious matter involving national security is not allowed to be rested on those accused and under civil command, which is unhelpful and hamper independent enquiry, if they persist.
There is a hue and cry as to why Intelligence Chief visited London on 24 Oct 2011 to obtain view of Mansoor Ijaz an alleged interlocutor and main witness of the Memo saga. It is beggar’s belief that for national security assessment any top level command is required to initiate a spade work as initial work begins the moment any matter carrying the element comes to surface and head of institution's nod is enough. In intelligence community matters relating to National Security remains ongoing no matter what or who is in charge. Even in Western World, top heads are routinely kept under scrutiny to avoid any damage to state security, integrity, and or to avoid any damage to the individual under oath. It’s the stage of trial or prosecution of those under trial where necessary rules of procedure are required to be met to produce evidence, and in the case of political executive heads to support a vote of no confidence and/ or an impeachment. In current Memogate scandal its different as here chiefs of army & intelligence are giving affidavits before Superior Court of Law that there are questions to be answered regarding 'memo'. if that is not enough to open the eyes, then Public and intelligence community will keep questioning whether memo went to Barrack Obama or not and if yes, who sent it, and what terms were attached to it. And if 'khaki's' are being sacked, is it part of the terms of the memo. If there is an action, expect a reaction too.
Barrister Amjad Malik is a Chair of Association of Pakistani Lawyers (UK) and has done LLM on national security law
28 December 2011
Back Up links:
The News 26 December 2011,
Is sacking of Generals Kayani and Pasha on the cards?
New York Times: 27 December 2011
Pakistan Prime Minister Says No Plans to Dismiss Military Chiefs
By SALMAN MASOOD- Published: December 26, 2011
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