Deconstructing the SC order on the memo

Published: December 5, 2011
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The writer is a Lahore-based advocate of the high court. He has an LLM from the University of Sussex

The writer is a Lahore-based advocate of the high court. He has an LLM from the University of Sussex

The Supreme Court’s decision on the alleged memorandum has become controversial — and not just because the court’s nominee for the probe into the matter has refused to head the proposed commission. One criticism of the order is that the court has taken cognisance of a matter over which it does not have jurisdiction. It is also being argued that the court has overreached by appointing a commission when the prime minister had already ordered a probe by the Parliamentary Committee on National Security. And, lastly, the undue haste shown in issuing the ad-interim short order without hearing the respondents is being debated as well.

Let’s first take the question of jurisdiction. Article 184(3) empowers the Supreme Court to make an order in matters of public importance guaranteed in Chapter I of Part II of the Constitution. Before making any substantive order, the court ought to have addressed this critical aspect, i.e. whether there is a matter of public importance in which violation of any fundamental rights has taken place. The order postpones this most essential question, without an answer to which the court should not have proceeded to make an order of this nature.

The only facts established so far are that a so-called businessman, Mansoor Ijaz, wrote a memorandum and got it delivered to then-US military chief Admiral Mike Mullen. Everything else, including the role of Pakistan’s former ambassador to the US, Husain Haqqani, and the nature of the offence supposed to have been committed, remains in the realm of conjecture.

The question then arises: how would it make a case of violation of any of the fundamental rights of any of the petitioners or the public at large to bring it within the scope of Article 184(3)? First of all, it needs to be established if anyone from Pakistan had commissioned Mansoor Ijaz to write and deliver the alleged memo. Even if the delivery of the memo on behalf of the former ambassador is somehow established, it is unlikely that a rigorous legal argument will be available to show that the contents of the memo were tantamount to compromising the ‘sovereignty, security and independence of Pakistan’. It will be even more difficult to show a link between an alleged attempt to compromise the ‘sovereignty, security and independence of Pakistan’ on one hand, and violation of fundamental rights including right to life, liberty, property, trade, business and profession, on the other.

After assuming that the memorandum’s “issuance, prima facie, seems to be established”, a suggestion has been made by the court that the offence, the nature of which is yet to be established, may attract Article 6, i.e. the offence of treason. It needs to be pointed out that treason is the only offence which has been defined in the Constitution under Article 6. The High Treason (Punishment) Act, 1973 enacted under Article 6 clearly provides that the federal government alone can take the matter to court (section 3). There is no legal argument to bring the offence of treason within the scope of Article 184(3). Indeed, there is long history vis-à-vis this and there is wisdom behind why parliament has entitled the government alone to initiate proceedings in matters involving treason. The petitioners have, intriguingly, arrayed the president of Pakistan as a respondent, to which no objection was raised by the court. The court ought to have seriously considered this since Article 248(2) clearly stipulates that no criminal proceedings whatsoever can be instituted against the president during his term of office. On the other hand, Article 47 of the constitution provides for impeachment, so that if parliament finds it appropriate, the president could be impeached in order to pave way for criminal proceedings.

The argument being constructed in the media regarding the court’s power to form a commission for preliminary investigation is misplaced. The real question which the court ought to have addressed is: whether the court could order for a commission to probe while the Parliamentary Committee on National Security was already seized of the matter, a fact to which the attorney general of Pakistan who was, mind you, not representing the Federation, tried to draw the court’s attention.

However, the court did not consider this worthy of attention. The court refers to the committee in Paragraph 7 and Paragraph 9 of the order. The reference to the committee is made in Paragraph 9: “We are told that the Prime Minister of Pakistan has also announced that the Parliamentary Committee on National Security will probe into the matter. We do not know the mandate of the Committee. However, we have been informed that as far as this Committee is concerned, it has no constitutional backing, i.e. it has not been constituted under any provision of the Constitution.”

There are two aspects to the formation of the Committee: its constitutionality and its mandate. Constitutionally, the committee represents the parliament under Article 57 read with Article 72 and Rule 22(b) of Parliament Joint Sitting Rules, 1973, which clearly implies the formation of a joint committee of both the houses. Two, the mandate of the committee could have been easily verified from the government. What was the urgency? Moreover, the referral of the matter to the committee was reported in the media two days before the short order. And the terms of reference reportedly included (a) probe into the memo purportedly written and sent by Mansoor Ijaz, and (b) to give consequential recommendations on the subject. The committee, which comprises representatives of all parties in the parliament, could further expand the scope of the probe. The order, on the other hand, authorises the commission to not only conduct the probe, protect and preserve evidence but also asks to render opinion on “whether such an act is tantamount to compromising the sovereignty, security and independence of Pakistan”. May one ask, with all due respect, how can an investigator perform such a task which even legal minds would find hard to grapple with?

Most importantly, while the court is conscious of safeguarding the fundamental rights of petitioners who failed to show before the court (if indeed any violation of fundamental rights took place), it failed to see that by binding the former ambassador Husain Haqqani to stay in the country, his fundamental right to free movement has been abridged without there being any concrete evidence of his involvement in the whole affair. He has consistently denied his role. The court has extensively referred to statements issued by Mansoor Ijaz but seems to have completely ignored Haqqani’s statements and interviews.

A fundamental principle of natural justice audi alteram partem i.e. no one may be condemned unheard, enshrined in Article 10A, is visibly ignored. The order does state that the court does not “want to attribute to him anything adverse about his involvement and he is entitled to due respect”, and yet his freedom has been curtailed, making his person questionable in the eyes of the people at large.

Published in The Express Tribune, December 6th, 2011.

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Reader Comments (14)

  • Nadir
    Dec 5, 2011 - 10:28PM

    Yes, but the desire to put Zardari down a peg or two trumps all forms of legal decency.

    Recommend

  • Mirza
    Dec 6, 2011 - 1:34AM

    Thank God there are learned lawyers like AJ, Asma J, Minallah, and likes, who are not showering Islamists like Qadri with roses. The ISI chief, whole establishment and some powerful media groups have already made the decision and PPP, Zardari, HH are all traitors no matter what. The peopel’s mandate and election results mean nothing for these special interests. They want to undo the election results one more time.
    The PCO SC CJ is not going to take up the treason cases against general Mush. A piece of paper is more dangerous than the worst terrorists in the world who have been killing innocent Pakistanis by thousands. The person MI, who actually wroter and delivered the memo against the army and ISI has become the prosecutor and judge. The history of higher courts especially SC has been notorious and there has not been a military takeover agaist an elected govt that they did not endorse. The presence of OBL is not investigated but the memo is on the fast track. Recommend

  • Dec 6, 2011 - 2:41AM

    The Get-Zardari Campaigners are getting desperate day by day…

    Recommend

  • amjad cheema
    Dec 6, 2011 - 5:45AM

    This Supreme Court has lost all its morality. In fact it has now become sharif Court.

    Recommend

  • Dec 6, 2011 - 7:02AM

    I believe on comment by Aasma Jehangir on a channal ” CHORAN NALON PUND KAHALI ”.There are very valid points said by the writer in his article. Every one feel CJ was in too much hurry to announce judjement which has resulted many questions. Moreover the imression I get from SC hearings and its judgement that it is in hurry like our establishment and PMLN leader against HH and Zardari.

    Recommend

  • Asad Sayeed
    Dec 6, 2011 - 12:06PM

    Excellent article, based on sound legal logic. I second Mirza’s comment above that lawyers such as the author, Asma Jahangir and a few others have the courage to speak the truth and speak it publicly in response to this right wing partisan drama that the Supreme Court puts out every few months. Recommend

  • Nasrat Baloch
    Dec 6, 2011 - 12:16PM

    This is not new ,this has been going on since long; What happened to Liaquat Ali Khan, ZAB and BB? untill and unless this mind set changes, this will go on. It is a total division of thoughts between a certain powerful quarter( establishment, judges, media, urban elite and fundamentalist religious forces)and rest of the country.The farmer wants to keep the power at any cost but the later comes to power when elections are held because they have support of general masses.Then start the fight of gaining actual power ; the powerful quarter start campaign to topple the elected govt using their powerful tools(media, judiciary and establishment). Conspiracies start from the day one; with corruption, incompetency and bad governance( all bads) debates on TV channels. So life goes on till another unnatural fall of elected govt. We have been repeating this again and again but never learnt a lesson so may God helps us but as they say “God helps those who help themselves”

    Recommend

  • Behzad Taimur
    Dec 6, 2011 - 2:26PM

    “Treason is the only offense described in the constitution”
    what about contempt of court and article 204?Recommend

  • Meekal Ahmed
    Dec 6, 2011 - 6:09PM

    Excellent points.

    Recommend

  • Saif Rehman
    Dec 6, 2011 - 9:28PM

    brilliant…CJ has lost all crediblilty…!Recommend

  • G.N. Qureshi
    Dec 8, 2011 - 12:12PM

    The same standpoint, I had already taken up on of the talk shows…
    Fully agree with writer that the fundamental rights of Mr. Haqqani have been infringed…
    The matter is not maintainable before the SC bcoz alternate remedy was available & the Parliamentary committee thereof, was already formed…. There is lot say & write on the Order, passed by the SC….. Wait for my Aritcle too…… Regards

    Recommend

  • Ijaz Akhter
    Dec 8, 2011 - 8:09PM

    Mansoor got his 15 minutes of fame/shame with this memo. He actually admitted that he wrote the memo and delivered it. Husain Haqqani did not write or deliver the un-signed memo. Why would a proven hatred of Pakistan, who authored and delivered the memo, becomes the star witness for Gen Pasha and all the rightwing Pakistanis? MI’s demands that ISI be branded a terrorists organization is false with all his hate against Pakistan on Fox News, but his allegations against Pakistan’s elected Govt are all true! Either he is a liar or a Pakistan hater or he is a good man? He cannot be both! Recommend

  • Raheel
    Dec 10, 2011 - 6:09PM

    Mansoor Ijaz is an interesting character. Born and raised in America, he has burst into the limelight of Pakistani politics after the infamous op-ed published in which he claimed that he was part of a secret mission seeking American support to replace the military
    leadership. For certain journalists and media tycoons who have been gunning for Asif Zardari since day one, this was the closest thing to the smoking gun they had been praying for. As the case carries on, however, we might want to pay closer attention to which way the smoking gun is pointing. His mental condition is also questionable, as he daily comes up with new statement and denies previous one. First he said President Asif Ali Zardari is involved than he rebuffed it. First he said memo was directly dictated by Hussain Haqqani and now he says that memo was drafted on Blackberry messages. Tomorrow he will come up with another new statement. Mansoor Ijaz is shady character, who is playing cards on the direction of anti Pakistan elements.

    Recommend

  • khurshid
    Dec 11, 2011 - 11:03PM

    While we are on the subject of the memo lets note that the damning BB messages that have been Mr. Haqqani’s undoing contain another gem I qoute: “05/10/2011 12:45 MI: I was just informed by senior US intel that GD-SII Mr P asked for, and received permission, from senior Arab leaders a few days ago to sack Z. For what its worth.” end of quote. No prizes for guessing who the ubiquitous Mr. P, GD IIS refers to. If the BB messages have been accepted as evidence,” the whole truth and nothing but the truth “etc. what would our honourable CJ have to say this revelation? Article 6 anybody?If its a load of bull from MI then why are his remaining claims to be trusted?

    Recommend

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