The right side of history

Not many individuals can claim the dual distinction of featuring in a music video with naked women (one of them called Nasty Nancy, no less) as well as being involved in a national security scandal that involves powerful spy agencies and a supreme court. Mr Mansoor Ijaz, however, is no ordinary individual – or so he insists in a less than charming nasal accent. Perhaps no right-minded male would deny that a racy video has inherent virtues and considerable intrigue. But not even a true connoisseur of such stuff would expect to find the star witness of a national security drama in such a video. The things we continue to learn!
He also insists, “I have friends”. Hmm, sure you do. If Pakistan were a high school, then the army chief would be the shady and silent guard, keeper of all secrets, you would want as a friend. If he is your friend Mr Ijaz, do not worry. Once in a while, this guard likes throwing out the principal of the school and run it himself. Epic, I know. You definitely want to be friends with him.
To make a more serious point, one hopes that despite all his efforts, Mr Ijaz will be irrelevant in the greater scheme of things. The tragedy is that the narrative he is furthering, and others are lapping up, cannot be ignored for now. It falls in sync with what the military establishment and all those deeply suspicious of democratic rule have been yearning for. I mean if you were a Zardari-hater and walked into a restaurant, Memogate is what you would have ordered. Sizzling, spicy, courtroom drama, media galore et al. The raunchy video is just a side order.
The Memogate Order has left me deeply troubled, as a lawyer and more so as a citizen of Pakistan. The court cited US v Nixon; but that was not a case where the original jurisdiction of the US Supreme Court had been invoked. It was an appeal from a District Court’s ruling. Hence, no judicial activism was involved and the US Supreme Court did not decide to head an investigation, under its original jurisdiction, as our court is doing here.
If, as the Supreme Court conceded that, 184(3) cases can not involve detailed factual inquiries then why speak of ‘inquisitorial’ proceedings — defining them as ‘prying’ and where judges act as prosecutors? Deeply problematic in terms of the logic involved, I would respectfully submit.
Article 184(3) envisages many things but to stretch it to accommodate an investigation is not just dangerous but also gut-wrenching for most Pakistanis. I favour a broadly interpreted right to life and a right to information that should be rigorously enforced. But imagine approaching this very Honourable Court under Article 184 (3) and demanding the names of all those that the ISI, over the years, has abducted and tortured. Imagine approaching this Court with the request that the army should disclose how many militant organisations it has trained, who received the funds and who has been punished.
Would a petition seeking more information about killings, by the agencies, of Baloch youth generate equal enthusiasm? The problem, the gut wrenching problem, as a Pakistani observing Memogate Order is not just the conclusion but the ignorance of the larger historical context. If Article 6 and fears of treason are what trouble the court, then two Generals in Memogate should face its wrath and you don’t even need a Mansoor Ijaz article to realise that. Generals Kayani and Pasha were complicit in Mush’s abrogation of the constitution.
Remaining cognisant of the socio-political and historical context in which it operates is a court’s greatest hope of remaining relevant and commanding respect. For the PPP, the context is this: last time a PM from PPP walked through the doors of this Court, her government’s dismissal was validated while a Punjabi got reinstated. The time before that a PM from the PPP was before this court, they hanged him. Yes. Let that sink in for historical context. Is removing that blot less important than an article by a non-entity? You decide. And in that context, Gilani’s appearance embodies symbolism and courage.
If the security of person is a fundamental right then its unavailability to hundreds of missing and abducted persons, including Shahbaz Taseer, is more dangerous and heart breaking than Mansoor Ijaz’s allegations. The threat from the men in khaki and people they trained has hurt us more than any imagined threat from politicians.
As Noah Feldman tells us, when the famous Brown v Board of Education decision was to be announced Justice Black was in a fix. A former member of the Ku Klux Klan, Black while leaving KKK had signed a paper that read ‘ITSUB’: In the Sacred Unfailing Bond. But in Brown, Justice Black seized his moment and redeemed himself. He ruled against racial segregation and, despite opposition, marched on the right side of history. Ruling to the contrary in Brown may not have made all US Supreme Court Justices racists but it would have meant they furthered a dangerous narrative. They chose not to do so. All Pakistani lawyers and judges should look back at history and must constantly ask themselves, “What narrative am I furthering?” Justice, more tellingly than beauty, is in the eyes of the beholder. And the most unforgiving beholder is history.

The writer is a Barrister and an Advocate of the High Courts. He is currently pursuing an LLM in the US and can be reached at [email protected]