President Asif Ali Zardari cannot avoid proceedings in the Memogate case by presuming that he enjoys immunity under Article 248 of the Constitution, the Supreme Court said on Thursday.
“Immunity does not come into play by itself. It will have to be sought [from the court],” Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry sternly told Attorney General Maulvi Anwarul Haq, reminding him of the court order seeking the president’s reply.
The nine-judge bench also asked the attorney general to ensure the federal government submits responses to the replies of Chief of Army Staff General Ashfaq Parvez Kayani, Director General Inter-Services-Intelligence Lt Gen Shuja Pasha, Pakistani-American businessman Mansoor Ijaz and former ambassador to the US Husain Haqqani.
Haq explained that he was in the process of filing the affidavits sought by the court and would require till Friday (today) to submit the federal government’s reply.
Asma Jehangir makes her case
The bench suggested nominating a sitting judge of the Supreme Court to probe the scandal, but shelved it after Asma Jehangir, Haqqani’s counsel, raised objections.
Referring to the political overtones of the case, Jehangir said the scandal raised several questions: Who leaked the memo, what was its background and were the rumours of a coup true? She added that Ijaz’s claim that the ISI and the army were hatching conspiracies against the government should not be ignored.
The CJP observed the court had been mindful of the maintainability of the petitions – but it could also not ignore the element of “civil liability and criminal culpability” in the case. When Asma invited the bench’s attention to due process of law for her client and the parliamentary committee’s probe into the Memogate affair, Justice Jawwad S Khwaja observed that unlike the apex court, the committee could not ensure due process.
Jehangir, however, was adamant to emphasise that proceedings should fall under the auspices of the government, and not the court. Referring to the court’s order of December 1, she said initiation of the proceedings under Article 6 of the Constitution (which refers to high treason) falls within the functions of the federal government. On this point, Justice Tasadduq Hussain Jillani observed the bench was not going to hold a trial but, merely sought a probe to separate fact from fiction.
“Before we decide upon holding a probe, we have to answer the question of maintainability of the petitions,” the judge added.
Pakistan Muslim League-N (PML-N) chief Nawaz Sharif’s counsel on the other hand, argued that the memogate affair infringed upon the sovereignty and integrity of the country.
During the proceedings, the bench directed the attorney general to arrange a meeting between Jehangir and Haqqani after the former stated that she faced difficulties in meeting her client, who had been facing threats to his life. She added that she had written to the registrar in the wake of threats being hurled at her also, to which the bench responded with assurances of protection.
Haqqani makes appearance
The attorney general agreed to submit Prime Minister Yousaf Raza Gilani’s reply on the Dr Babar Awan press conference held in the wake of the court’s order on nominating Tariq Khosa for the probe. After the bench adjourned the proceedings on the attorney general’s request till Friday, a stoic but pale looking Haqqani walked into the premises of the Supreme Court in shalwar kameez for his meeting with Jehangir, under the cordon of plainclothesmen. Later, he submitted a rejoinder to the statement of the DG ISI, stating that the court should ask Pasha about his investigation on Ijaz’s claim of toppling of the government. He denied having any knowledge of the memo and agreed to an investigation provided it was carried out in line with the due process.
PM reply on press conference
The attorney general also submitted the prime minister’s statement on the press conference by Dr Babar Awan, stating: “The prime minister has instructed me to assure the court that his government believed in the supremacy of the Constitution and rule of law”. The statement said the prime minister had ordered the release of detained judges and later their restoration. It stated that at the press conference, the view of the party was expressed in historical perspective and was not at all intended to ridicule the judiciary.
The attorney general also placed on record the reply of the interior ministry in the form of an affidavit. The ministry had requested the court to dismiss the petitions stating that they were based on press reports and the statements of what it called a “dubious character” –Mansoor Ijaz.
Ijaz, in his rejoinder to the DG ISI’s affidavit, said he was willing to appear before the court and submit his Blackberry phone’s record to an independent examiner for a forensic probe. He also offered to cooperate with any court-appointed investigator to help the court ascertain facts in the Memogate probe.
Published in The Express Tribune, December 23rd, 2011.