If the authorities were looking for some respite from the fallout of the Abbottabad raid by the US, a newly-formulated commission to probe the incident did not do the trick.
The commission suffered a major setback right off the bat with Justice (retd) Fakhruddin G Ebrahim declining to be its member, while the PML-N and the Supreme Court Bar Association have raised questions over its composition and the procedure adopted by the government to constitute it.
Meanwhile, the Supreme Court – whose senior-most judge, Justice Javed Iqbal, was made the head of the commission – received a copy of the prime minister’s notification on Wednesday night and said that it would take up the issue today, Dr. Faqeer Hussain the registrar of the apex court told The Express Tribune.
The decision by the Supreme Court today will be crucial for the fate of this commission. Concerns have been raised that the nomination of Justice Iqbal, without prior permission from the chief justice, was against established judicial norms. The Supreme Court Bar Association has already expressed its reservations over the procedure adopted by the government while constituting this commission, saying that the name of a sitting judge in any such body cannot be included without consulting Chief Justice Iftikhar Chaudhry.
Leader of the main opposition party, PML-N, Nawaz Sharif, has also rejected the commission saying it was constituted without taking the leader of opposition in the National Assembly, Chaudhry Nisar Ali Khan, into confidence. He said that, by doing this, the government had made a mockery of parliament and its resolutions.
If the political and judicial issues were not enough, Ebrahim, a reputed jurist also made part of the commission, has conveyed to Prime Minister Yousaf Raza Gilani that he would not be part of the proceedings on the basis that the May 14 joint-resolution of parliament – which was paramount for constituting this commission – was not followed.
Gilani on Tuesday had notified a five-member commission, to be headed by Justice Iqbal and also included Justice (retd) Ebrahim, Lt Gen (retd) Nadeem Ahmed, Abbas Khan, a former inspector-general police, and Ashraf Jahangir Qazi, a former ambassador of Pakistan. This commission was supposed probe the May 2 US operation in Abbotabad in which US Special Forces killed al Qaeda chief Osama bin Laden.
Justice Ebrahim on Wednesday wrote a letter to Gilani, which he read out on phone when The Express Tribune contacted him. He wrote to the prime minister that, as per the spirit of the joint-resolution, consultation of the leader of the opposition in the National Assembly was mandatory before announcing the members of the commission. He also quoted reservations of the Supreme Court Bar Association and civil society over the procedure adopted by the government to constitute the commission, as other reasons for his staying away from the body.
Answering a question, Justice Ebrahim said even he was not consulted by the government at any level before his name was included in the body.
“I had come to know through media reports only,” he stated.
Meanwhile, Justice Iqbal, who has been made head of the commission, expressed his conditional willingness to lead the commission but made it clear that it is the prerogative of the chief justice to allow any of his judges to become a part of any body proposed by the government.
“I was not consulted before the commission was announced either, but I am ready to be a part of it,” he asserted.
“However, as of now, I have not received any official notification. We will decide after a formal notification is received,” Justice Iqbal was quoted as telling media.
Supreme Court Bar Association President Asma Jahangir, in a press statement, said that direct appointments of sitting judges to any commission without taking the chief justice into confidence seriously undermined the independence of the judiciary.
She said that the chief justice should have been consulted before nominating a judge for any tribunal, commission or forum outside of the traditional court work.
Earlier, leader of the opposition in the National Assembly also told reporters that he was not consulted before the announcement of the commission, even though he had written a letter to Gilani on May 18 to press for an independent commission as per the joint resolution.
According to his letter, he had suggested seven names to be included in the proposed commission including Justice (retd) Shafiur Rehman, Justice (retd) Nasir Aslam Zahid, Justice (retd) Ebrahim, Majeed Nizami, Mehmood Khan Achakzai, Asma Alamgir and Justice (retd) Bhagwan Das.
He had also proposed that the commission should be constituted under the Commission of Inquiry Act 1956.
Published in The Express Tribune, June 2nd, 2011.