ISLAMABAD: For days the government has been insisting that the court back off the Memogate affair, since a parliamentary committee is already probing it.
The court punched a hole in that argument on Wednesday when it declared that the Parliamentary Committee on National Security (PCNS) did not have the mandate to probe the scandal.
The committee, observed Chief Justice Iftikhar Muhammad Chaudhry, had not been tasked by parliament to probe the Memogate affair.
Justice Jawad S Khwaja said the documents provided to the court, so far, indicate that Principal Secretary to the Prime Minister Khushnood Akhter Lashari wrote a letter to the committee for a probe into the scandal.
“How dare a secretary direct the parliament? Even the prime minister cannot direct the parliament, let alone a secretary,” said Justice Khwaja.
To a court query, Asma Jehangir, counsel for former ambassador to US Husain Haqqani, said she had learnt that the committee decided to initiate the probe on its own.
The chief justice asked Attorney General Maulvi Anwarul Haq to place on record the documents indicating the committee was empowered by parliament to conduct the probe.
Headed by Senator Raza Rabbani, the PCNS was also tasked with reviewing terms of engagement with the US in the wake of Isaf attack on Salala, which killed 24 soldiers on November 26.
Petitions’ maintainability
Highlighting the need for a probe, the chief justice observed that the president chose not to submit a reply to the court, but that does not mean he has denied the existence of the memo.
Prime Minister Yousaf Raza Gilani, Chief of Army Staff General Ashfaq Parvez Kayani and ISI Director General Ahmed Shuja Pasha have also confirmed its existence, the chief justice said.
“If allegations attributed to my client are found to be true, the result, at best, could be impeachment of the president,” Jehangir replied, while opposing the court order on holding a probe into the scandal.
Jehangir urged the court to grant his client due process that begins with the registration of a case prior to holding of an investigation and a trial.
“That way I would have the option of moving the Supreme Court for remedy in the wake of any injustice,” she said.
On December 1, the Supreme Court had ordered holding a probe but shelved that later to deliberate upon maintainability of the petitions.
Justice Tassadduq Hussain Jillani said the court stressed holding of the probe because it wanted to separate fact from fiction in a case that contained ‘element of hypotheses’.
Asma argued the petitioners have failed to point out any violation of fundamental rights in invoking the court’s jurisdiction under Article 184 (3) of the Constitution.
Under this article, she said, the court could only entertain petitions which sought enforcement of fundamental rights in the wake of their violation.
Justice Ejaz Afzal replied that the court can proceed with the case because a fundamental right – the right to access information – had been breached.
Jehangir retorted that she would need to amend the petition to raise element of bias, because Justice Ejaz appeared highly influenced by the case.
She said the court could direct the government to place on record entire information regarding the Memogate scandal to share it with the press, and satisfy the petitioner. The chief justice said the court would have to examine the information to pass such an order.
Jehangir argued it was her client’s right to seek a forum of his liking, and the chief justice said that the law would determine the forum for a probe.
When asked if he would represent the president when he made submissions on Thursday (today), the attorney general said he did not have any such instructions and that he would be making submissions on behalf of the federation.
Published in The Express Tribune, December 29th, 2011.
COMMENTS (29)
Comments are moderated and generally will be posted if they are on-topic and not abusive.
For more information, please see our Comments FAQ
It is very interesting to note that the present lot in SC wants to assert itself as above the law and should be accepted as Supreme Rulers of the country. In fact they are the ones who gave extra life to all dictators on every takeover. It is better for them not to create any impediments on the executive side of the present democratic government so that masses do not start thinking ................kha kay haj ko chley.
Why SC is adament to degrade its position . The probe into memogate is not required . Let the army and govt do its critical job i.e, the fight with terrorists .
Its need courage to go against poweful corrupt rulers,and only few in pakistan has it.please apprecite them for their courage.
@Imran: .. its not mere piece of paper.it is the invitation and dictation from outside to dispel the top army ranks. let court determine it. you will be able to see the reprecussions of this attempt, once you start listening to your conscience instead of tummy. Divore is also a piece of paper, which separates two souls. Constitutuon is also a piece of paper, which governs whole country.I hope u ill be able to differentiate between form n Substance.
sir the only thing you people are afraid that he may win the next election if he is bad people will vote him out or don't you believe in people's voice if you talk about law then bring evidance ,zardai cudnt have a more hostile court as now @ Sade
Judiciary is toothless and the rulers are rogues!!! This is all just a trick to keep the people without the knowledge or the facts ! No instiyuyion within this country is transparent os has been accountable to the people !
@akhtar: For crying out loud Akhtar, everyone knows what Zardari is.
The SC obviously wants to control this process --- but sometimes things you want to do are not necessarily things you are entitled to do.
for arguments sake if the president thinks that army has become defacto ruler and is not accepting the suoremacy of elected representatives,then he is within his rights to ask for help
Supreme Court intends to examine the facts of the case; Asma Jehangir is trying to portray as if this Memo Scandal is nothing but Army vs the Democracy, most people in public debates are being confused by this; in reality Memo is a factual issue that needs to be examined and exposed; Asma Jehangir is attempting to stop the exposure and the discovery of truth by trying to make it political again and again, all her strategy is geared towards creatign confusion and obfuscation..
Let the Memo-Bomb explode . SC will like to ignite it due to the pressure it is experiencing .
This Supreme Court has done more for People than any other court in history of Pakistan. Rather than criticizing it all the time give it some credit.
@akhtar: Like a broken record, PML-N and PTI keep repeating that Government is not listening to the SC. We want to know are the PCO Judges listening to the parliament, the people of Pakistan and the constitution.
has mr chaidhry able to reduce corruption in judiciary even by one percent.can any of his supporters come up with any figures the old mantra of govt not listening to supreem court should be abandoned , if govt is not listening then shouldn't supreem court resighn
@Tkhan: You have hit right at the head. The PCO SC in Pakistan has reduced itself to lower trial court. By starting a case in SC, they have also taken away the right to appeal, wich is a fundamental right. Now the Govt can only appeal to SC against its own decisions. In addition, the SC has made all the lower courts and High Courts useless. Thanks and regards, Mirza
the court has found something it thinks can be substantial to get rid of Zardari so itis clear that uphill now they have been not able to find anything against zardari it shows he is INNOCENT
@MALIK WAQAR HAIDER AWAN: Its really unbelievable that people still supports the Govt.
You need to get out of your tiny world my friend, and look beyond urban areas of Punjab. You would then be surprised that your Zoonami has failed to influence ordinary people in small towns and rural areas. Please prepare for a shock of your life when the next general elections turn your Zoonami into a mirage.
@Imran sadaf: Strange army which can be weakened by a mere piece of paper. I just wonder how easy it would be then to defeat it. Perhaps India did something similar in 1965, 1971, and 1999 too leaving our army in taters.
Its really unbelievable that people still supports the Govt. They do not realize that its not only a case but will also unmask the perpetrators who tried to play with the soverignity of the country.
@Imran sadaf:
Judicial activism to what extent? In a situation where SC starts to act like a trial court instead of an appellate court and takes up matters ranging from executive appointments to national security, then why shouldn’t it chop off remaining two pillars of the state and ask the Judges to run the state affairs???
I need to be educated on whether the Supreme Court is an appeal and constitutional court or it is a trail court or an investigating agency? The type of justice process being developed in Pakistan is a matter of grave concern irrespective of who is the appellant and who the defendant!
@Mirza: In a civilized country!!! ur own words. Please define it. Is it a country with Corrupt,incompetent governement, Mr Mirza, when cabinets fail to run the country, then Judicary activism is indispensible to some extent. Judiciary cannot be a mere spectator of humangous corruption,nepotism,incomptency and destruction of instituion.
Mrs Jahangir insisting memo case of being political.But court want to see it through glasses of Constitution/law. this lady and haqqani are on same page fighting for same purpose. i.e. to weaken the army, One has proved, other is proving. Let court determine it, preptrartors cannot runaway from this. In the end, I would advise govt to be a MAN, n face the reality, instead of throwing mud at army,court and political parties.
It is becoming more clear that this PCO SC wants to run the show just like the the generals have been doing for decades. Why would the court not "appoint" the speaker of national assembly also? In a civilized country the courts only judge and do not make executive and managerial decisions.
What ever the wordings and the impliations in the memo are so grave that it should be investigated thoroughly and who ever is found guilty should be punished according to law and who ever proven innocent shall be compensated for the ordeal.
When the SC is done with this unprecedented case of Pakistan's security issue in months or maybe a year, it will hopefully have a few moments for thousands of ordinary cases of ordinary Pakistanis.