Memogate: Supreme Court dismisses Haqqani’s plea

Published: December 9, 2011
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Former Pakistan ambassador to the United States (US) Husain Haqqani submitted his reply to the Supreme Court with regards to the Memogate scandal on Friday. PHOTO: AFP/FILE

Former Pakistan ambassador to the United States (US) Husain Haqqani submitted his reply to the Supreme Court with regards to the Memogate scandal on Friday. PHOTO: AFP/FILE

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 10th, 2011.

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Reader Comments (31)

  • Nasir
    Dec 9, 2011 - 4:46PM

    Court has given the right decision to add the name of a US Citizen in ECL as he might run away to his home country.

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  • Mohammad Ali Siddiqui
    Dec 9, 2011 - 5:08PM

    In the end, Haqqani is going to be cleared of all charges and Mansoor Ijaza, born in an Ahmadi family in US is going to face the music.

    Masoor Ijaz should wait when the guns will be turned towards him.

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  • Usman Ahmed
    Dec 9, 2011 - 5:15PM

    Wow! If Mr Haqqani is not guilty, why did he resign?

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  • Dec 9, 2011 - 5:29PM

    Ready the guillotine, only way forward.

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  • grinz09
    Dec 9, 2011 - 5:43PM

    It is said that Nawaz, who is under the illusion that he will be in govt in 2013 has promised the presidency to …………..!

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  • Ashraf P
    Dec 9, 2011 - 6:45PM

    The true actions of a Banana Republic.

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  • Imran
    Dec 9, 2011 - 6:47PM

    If someone is accused of something big, it is customary to resign so that he can clear his name.Recommend

  • Londoner
    Dec 9, 2011 - 6:54PM

    @ Nasir—-first of all, Haqqani has repeatedly said he is not a US citizen. BTW, the star witness of those trying to persecute him is a US citizen. Second, if he was going to run away, why would he come back? He could have very easily just stayed there? Please make sensible arguments.

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  • Mirza
    Dec 9, 2011 - 8:05PM

    @Imran: You are 100% correct. But resignation in Pakistan is rare and even after all humiliation in East Pakistan, Kargil, OBL’s presence, Mehran Base, etc., not a single “jawan” resigned. Only people with pride, and professional resign and re-appointed to another post after clearing their name. Legal Titans like Asma J, and likes are rightly calling the PCO SC bluff to the nation. Regards,
    Mirza

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  • Dec 9, 2011 - 8:07PM

    @Nasir:

    Court has given the right decision to
    add the name of a US Citizen in ECL as
    he might run away to his home country.

    You are claiming that Haqqani is a US citizen? Are you sure of that?

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  • Syed
    Dec 9, 2011 - 8:09PM

    @All, If everyone remembers, when Benazir arrived in Pakistan in 2007, she was carrying BlackBerry. Just wondering was BlackBerry authentic at that point Vs, the BlackBerry Messager conversion occurred between Haqqani and Mansoor Ijaz that is being called as un-authentic and commonly refer to as SMS messages in Pakistan by politicians – Can someone tell our Politicians that it is a HUGE difference between SMS messages Vs BBM Messages.

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  • HoneyBee
    Dec 9, 2011 - 8:24PM

    @Mohammad Ali Siddiqui:
    Do you have any solid proof that Ejaz Mansoor belongs to Ahmadi family ..?

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  • Naeem
    Dec 9, 2011 - 9:24PM

    The court has shown its activism by taking memo case at the highest level which apparently serves the purpose of forces and PML-N. It appears that HQ has been targetted because he is self-made person. What would happen, if one day some person malign Chief Justice; can other respected jury members bring his name on ECL. I think the court should work more on ensuring implementation of their earlier decisions before making any further adventure. Long live- Pakistan

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  • Intizar Zaidi
    Dec 9, 2011 - 9:29PM

    Husain Haqqani, Citizen of Pakistan is a brave and courages man who is ready to face the justice system of his country. The CJ and Supreme Court by putting him on ECL without hearing him out has violated his basic right.

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  • AB
    Dec 9, 2011 - 10:21PM

    I think Mr. Haqanni is a knowledgeable and a sensible man..Looking at the situation in Pakistan and the politics….I doubt whether he will come out of this mess unscathed..Even if he did write that memo..I dont think it was a bad thing…one more military rule in Pakistan will drive the country to the point of no return…it will never have democracy.
    BTW, I am an Indian, but I care about my neighbors. God Bless.

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  • Syed
    Dec 10, 2011 - 12:20AM

    What if as an example… Haqqani becomes the “Wadah Gawa Maaf” and points to his boss involvement – Will all the people currently supporting haqqani be start hating Haqqani?

    It would be good to remain neutral as the matter needs to be dealt with seriously in a dignified manner.
    Recommend

  • MarkH
    Dec 10, 2011 - 12:44AM

    There’s not enough evidence to convict and there’s not enough trust to come out clean.
    This is a case made perfectly for people to end up incriminating themselves in their haste to incriminate another.

    Recommend

  • Dhoti_wala
    Dec 10, 2011 - 12:59AM

    @Mohammad Ali Siddiqui: Pakistani are funny people if they dont like anyone that put a stamp of Qadani. I am not advocating anyone just wanted to know do those who are aganist Zaradari or haqqani and writing aganist them , consider them Qadani too . :))

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  • Syed
    Dec 10, 2011 - 3:52AM

    @Mirza: Just like the way, NRO has been declared Null and Void, non of the POLITICIAN JAWAN has resigned and neither Asma is doing anything about it :)

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  • amjad cheema
    Dec 10, 2011 - 4:43AM

    This supreme court has lost all its moralty & has become Sharif Court.

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  • First drink, don't think
    Dec 10, 2011 - 6:53AM

    PPP has a win win situation here. If Haqqani comes out clean, you can imagine what they are gonna do and if in case Haqqani is convicted of high treason and hanged, this will add another shaheed to PPP dead cadres! Jiyeee Bhutto Saeen :D

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  • You Said It
    Dec 10, 2011 - 6:56AM

    The Supreme Court under CJP Chaudhry has been remarkably inconsistent. This is hardly surprising since Chaudhry himself took the oath under the 1999 PCO when Musharraf elevated him to the SC as CJP. When he was removed by Musharraf in 2007, he turned against the PCO. After he was reinstated, he ruled that judges who took oath under the 2007 PCO were unconstitutional. This is ironic given that he took oath under the 1999 PCO. If the same principle were applied to the 1999 PCO — that would have disqualified Chaudhry himself.

    Now, Chaudhry is determined to target Zardari and the PPP. This has often resulted in the SC overlooking established statutes as we saw in the judgment on the NRO and now again in the case of Haqqani. How can a court unanimously appoint a commission for inquiry for treason, when the privilege belongs to the government and the parliament. By subuming the parliament’s privilege, the court has crossed a red line.

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  • Noman
    Dec 10, 2011 - 2:02PM

    In view of the facts and circumstances known so far, I believe there is no doubt that Mr. Haqqani is the PRIME SUSPECT in a HIGH TREASON CASE, so preventing him from going abroad or even having him house arrested till the investigation is completed, is quite reasonable.
    Also the supreme court has the powers to initiate an Inquiry or investigation of a matter even when it is under consideration at any other forum e.g. the parliamentary committee.The parliamentary committee or the supreme court cannot and did not prevent the other from proceeding in a matter.

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  • malik
    Dec 10, 2011 - 8:39PM

    The Supreme Court has definitely exceeded its jurisdiction. The Memogate affair is a political issue and, for the court, should be ultra vires. The Supreme Court should be the final arbiter of the law and not a trier of facts, not to mention a prime party to a politically-motivated action. It continues to rubbish the concept of separation of powers, thus, betraying a lack of maturity and sophistication. Apparently, it has its own axe to grind against the PPP.

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  • Dec 11, 2011 - 6:19PM

    @You Said It:

    This is getting a bit embarrassing. Let’s talk of the weather.

    Recommend

  • Nadir Ali
    Dec 12, 2011 - 8:07PM

    Analyzing the memo, it also appears that Mansoor Ijaz’s thrust is to prove the point that even the Pakistani civilian government thinks that the Pakistani establishment is involved covertly in supporting the Afghan Taliban. This point was made by Admiral Mullen in his last appearance before the US Senate. So, Mansoor has served the US’s interest by publishing the memo in his Financial Times article. He says he is a loyal American and wants to teach Pakistan a lesson. However, the end result is that the Pakistani establishment and media have been put in a trap set by Mansoor and his American masters. It was a sting operation that bit Haqqani and Pakistan. Lastly, the people who called for Haqqani’s resignation, and rightly so, did not show this grace when the country had to face a security and intelligence lapse on May 2 and again at the Mehran airbase. Nobody asked for resignations or actions against the people who failed the people of Pakistan. Are we not selective when demanding accountability?

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  • Dec 12, 2011 - 11:02PM

    Pakistan is a unique free country; even the traitor have the cheeks to present themselves innocents

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  • rehmat
    Dec 15, 2011 - 4:01AM

    @Nasir: “Court has given the right decision to add the name of a US Citizen in ECL as he might run away to his home country”

    IT was the court registrar’s decision which has been reversed by the CJ.
    Haqqani is not a US citizen. He has mentioned multiple times that he does not have a dual citizenship. He is only a Pak citizen.
    If he wanted to run away, he would not have come to Pakistan in the first place.
    Recommend

  • rehmat
    Dec 15, 2011 - 4:04AM

    @Mohammad Ali Siddiqui: “Masoor Ijaz should wait when the guns will be turned towards him.”
    Mansoor is not a Pakistani citizen. in fact he was born in the US so he is a US citizen by birth. No way the Pak courts have jurisdiction over him and article 6 cannot apply to him.
    The only person who can sue him (and has done so) is Hussain Haqqani for defamation.

    Recommend

  • rehmat
    Dec 15, 2011 - 4:05AM

    @Usman Ahmed: “Wow! If Mr Haqqani is not guilty, why did he resign?”

    Pakistan’s foreign policy is run by the army. Haqqani had lost the confidence of the army. Hence he could not have successfully performed the role. Does not show guilt on his part.

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  • rehmat
    Dec 15, 2011 - 4:08AM

    @HoneyBee: “Do you have any solid proof that Ejaz Mansoor belongs to Ahmadi family ..?

    Even if he does belong to an Ahmadi family – so what? His actions should be evaluated not his religion.

    Recommend

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