Continued silence draws ‘adverse presumption’: SC

Published: December 20, 2011
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Govt, COAS, other parties ordered to submit affidavits confirming or denying each other’s claims within 2 days.

Govt, COAS, other parties ordered to submit affidavits confirming or denying each other’s claims within 2 days.

ISLAMABAD: 

The Supreme Court has set out its stance for the Memogate hearings: sitting on the fence will not be tolerated.

The court’s nine-member bench on Monday asked the federal government to refute or affirm – within two days – the positions taken by army chief General Ashfaq Parvez Kayani and Inter-Services Intelligence (ISI) chief Ahmed Shuja Pasha in their replies.

“The Federation of Pakistan shall swear affidavits, denying or accepting item-wise/parawise the stand taken by the COAS, DG ISI, former Ambassador Hussain Haqqani as well as Mansoor Ijaz,” read the court order.

The request applies to all parties: Haqqani and Ijaz have also been ordered to file affidavits, denying or accepting the stand taken by the government, the army chief and so on.

The court also directed all the petitioners and respondents, including President Asif Zardari, to “clear the cobwebs in the different stands” taken by all those wrapped up in the Memogate scandal.

Addressing Attorney General Maulvi Anwarul Haq, the chief justice observed that the reply everyone had been waiting for, that of the president, had not been submitted. “You know well that an adverse presumption is drawn when someone does not file a reply in civil litigation,” Chief Justice Iftikhar Muhammad Chaudhry told the attorney general.

Legal experts say that no individual is free from the court’s interrogations, once they have submitted their version of events. “Once the affidavits are filed, the court would be able to summon any witness for cross-examination,” Barrister Zafarullah Khan told The Express Tribune.

Earlier, opening the proceedings, the chief justice asked the attorney general to state whether former law minister Babar Awan and other officials, during a press conference on December 1, made controversial remarks against the judges on behalf of the federal government.

“Certainly, this is not the stance of the federal government,” the AG replied. The chief justice then asked him to speak to Prime Minister Yousaf Raza Gilani and, at the next date of hearing, to inform the court of the actions taken by the PM “against the persons who, using official premises, ridiculed, insulted and criticised the judiciary in spite of the fact that the matter is still sub judice”.

“Similarly, we have noted with concern that the (former) federal law minister of the government of Pakistan, being a law-knowing person, criticised the proceedings by uttering the words, which ought not to have been used by him,” the order stated.

The nine-member bench also asked the AG to place on record copies of the notification on the appointment of Justice (retired) Javed Iqbal as chairman of the commission for inquiring into the Abbottabad raid.

The chief justice said the appointment was made without his approval, despite Justice Iqbal being a senior judge in the SC. Traditionally, a sitting SC judge is appointed to head a commission only after consultation with the chief justice.

Nobody was spared the SC’s demands, as the bench also asked the petitioner to argue the maintainability of their petitions filed under Article 184 (3) of the Constitution. The chief justice emphasised that the counsel for Pakistan Muslim League-N leader Nawaz Sharif, Rashid A Rizvi, would have to satisfy the court that it had the jurisdiction to hear the petitions.

In addition, the judges refused to entertain the PML-N’s application for summoning High Commissioner to the UK Wajid Shamsul Hasan to the court hearings. The case will resume on Thursday.

(Read: Memogate unfolding)

Published in The Express Tribune, December 20th, 2011.

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