Memogate: Supreme Court dismisses Haqqani’s plea

Application says court passed an illegal order by not hearing Haqqani’s defence.

ISLAMABAD: The Supreme Court has turned down former ambassador to the US Husain Haqqani’s application disputing the authority of the court to hold a probe into the memogate affair.

Through his reply, submitted to the apex court along with the application on Friday, Haqqani categorically denied having any knowledge of the memo. On December 1, a nine-judge bench of the Supreme Court had sought Haqqani’s reply, besides restraining him from travelling abroad, after hearing nine petitioners including PML-N chief Mian Nawaz Sharif.

The application was returned to Haqqani’s counsel Asma Jahangir after the Supreme Court’s registrar said that a review petition should have been filed instead.“We will file an appeal against the rejection of the application before exploring the option of filing a review petition,” Asma Jahangir told reporters outside the Supreme Court.

She said the court stepped beyond its jurisdiction in granting what she termed “final relief to the petitioner by instituting a one-man commission to probe the memogate affair”. The doctrine of necessity, which served as the bases for granting more than what was being sought, has been trashed by this court itself, she said.

She said Haqqani had himself said that he would cooperate with any investigation to fathom the facts. “Why did the PML-N then take the case to the Supreme Court when a parliamentary committee was formed to investigate the affair after the letter written by Ishaq Dar?”

Application against probe

The application challenging the court’s authority of ordering a probe said the Supreme Court had passed an illegal order for it did not hear Haqqani’s side of the story. The court regrettably identified the offence of high treason under Article 6 of the Constitution without hearing Haqqani, it said.

“At its worst, if at all, the matter would fall within the jurisdiction of the High Treason (Punishment) Act, 1973 or the Prevention of Anti-National Activities, 1974. In both the laws, cognizance can only be taken under the federal government or a provincial government or any one sanctioned on behalf of any one of the two,” the application stated.

The application stated that the court erred in saying that “the memorandum, issuance whereof, prima facie, seems to be established, has immediately posed two questions – one with regard to civil/constitutional liability with its consequences as envisaged by Article 6 of the Constitution, and the second, criminal liability.”

“The court has curtailed Haqqani’s movement as well as initiated a high level investigation against him. An impression has been created through the order that Haqqani was guilty of high treason,” the application said.

Referring to the media’s coverage on the issue, the application stated that the court’s order appeared to have been highly influenced by the media, which has ‘often been used for ulterior motives’. “The court has failed to acknowledge that the unsigned memo ran contrary to the policy of the Government of Pakistan and its contents were patently absurd,” it said.

The court also brushed aside the probe being carried out by the bicameral Parliamentary Committee on National Security on the instructions of the prime minister, it said. “The court cannot assume the role of supervising an investigation of a criminal nature at the apex level. Continued control over the investigation exercised by the court is prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction,” it read.

Haqqani’s written reply

Haqqani’s reply to the Supreme Court said the court could not have passed an order on the petitions on the memogate affair because it was barred from hearing cases of political nature under the Political Question Doctrine. The reply said invoking the court’s jurisdiction in the garb of public interest litigation was questionable because the Nawaz government had Haqqani kidnapped and tortured.

This petition should be dismissed for lack of judicially discoverable and manageable standards required for resolving the controversy raised in the petition, it said, adding “The alleged Blackberry Messenger conversation, reproduced with the petition, did not in any way refer to the alleged memo.”

Published in The Express Tribune, December 10^th, 2011.