ISLAMABAD – The Supreme Court on Wednesday questioned the assigning of memo probe to the parliamentary committee in disregard to the rules, while Husain Haqqani’s counsel asked the court to summon Mansoor Ijaz for cross-examination if the court has to hear the case.
A nine-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry was hearing the memo scandal case. The court asked Attorney General Maulvi Anwarul Haq to present written proof on the mandate given to the Parliamentary Committee on National Security probing the memogate scandal.
The chief justice remarked that the parliamentary committee on national security could not have initiated a probe into the scandal unless it was ‘authorised to do so’. Justice Jawad S Khwaja observed that the letter, written by the prime minister’s Principal Secretary Nargis Sethi to the committee, was not the proper tool for granting the mandate. “Even the prime minister cannot direct the parliament,” he said.
The chief justice remarked that only the national assembly or joint resolution of the parliament can mandate a parliamentary committee for an inquiry, but said that even a joint session of parliament, which granted the mandate to the committee, needed rules for its operation. He added that the court should be informed when the parliament grants permission for conducting a probe. Justice Tassaduq Hussain Jillani observed that the mandate should be object-specific.
Asma Jehangir, the counsel for former Ambassador to the US Husain Haqqani, said that she had been told that the committee itself had decided to probe into the scandal. Earlier, Asma had argued that the court could direct the federal government to present details of the scandal to the court. When the chief justice asked Asma to state if she maintained her stance on her proposition for an order to the government, Asma said that the details could be presented and shared with the media and petitioners. “That should be the end of the matter,” she said. The chief justice observed it can’t be ‘the end’ because the court needed to further verify the facts.
Asma Jehangir pleaded to summon American-Pakistani businessman Mansoor Ijaz to appear before the bench for providing opportunity of cross questioning. Asma said, “If the trial is to take place at the apex court, Mansoor Ijaz should be called. We are geared up to cross-question him.”
During her arguments on maintainability of petitions filed by Nawaz Sharif and others in the memo issue, Asma said that both the petitioners and the respondents want the scandal to be probed, but there is conflict over the forum. She emphasised that it was the right of her client, who has been considered guilty, and not that of the petitioners’ to have forum of his choice for investigation of scam.
Justice Tassaduq Jillani said the court has the power to determine the forum. The court observed that there were 3 to 4 things in the memo for which forensic evidence is necessary, and the Blackberry messages and phone record could not be obtained from Canada without the court intervention.
The chief justice observed the government had set up many commissions but there reports were not made public. He posed question that what had happen to Hamood-ur-Rehman Commission and UN and Scotland Yard reports (in Benazir murder case)? These reports were not put under the rug, he said and added this tendency should end and such now people should know the facts.
He said that ISI DG, COAS, Prime Minister and even Husain Haqqani himself has accepted the existence of the memo. Justice Shakir Ullah Jan said that prima facie according the meetings of PM, President, COAS and ISI DG shows that memo exist and the resignation of Haqqani points out the involvement in memo controversy.
Asma said the petitioners have brought articles 9, 14 and 19A of the constitution for redressal of their grievances to the ambit of Article 184(3). They have stated their fundamental rights are infringed but failed to demonstrate the violations. She argued there is hypothetical infringement of fundamental rights and there are apprehensions about the involvement of her client as no cogent link has been established yet.
The chief justice said Haqqani in his rejoinder and affidavit has not denied the link with Mansoor Ijaz. Justice Saqib Nisar asked Asma to satisfy the court as to why and how the fundamental rights under Articles 9, 14, 19A have not been violated. Justice Jillani said after the findings the court could decide about the infringement of the fundamental rights.
Asma argued her client has served as Pakistan ambassador to United States in difficult times and was not shy of any investigation, but let inquiry be started from the lower to upper level; as ultimately he has to come to the apex court for the protection of his rights.
The chief justice said if your client does not have faith in highest judicial forum then how he would he trust the sessions court. Asma said: “I have full faith in my husband but can’t surrender my rights to him.” The chief justice said if the investigation starts from the top there will be transparency. He said the court would protect Haqqani’s rights better than a lower court or some other forum.
Justice Tassaque Jillani said the court has vast jurisdiction and the judicial power cannot be controlled and the threshold is that court can pass any order under Article 184 (3). Asma stated the order under Article 184 (3) has to be confined to the enforcement of fundamental rights.
The former SCBA president argued that petitioners have approached the court as aggrieved party but they have to establish their bona fide. She informed the court that Haqqani did not meet Mansoor Ijaz physically in the last two years. Ijaz had himself contacted Haqqani.
Asma contended that memorandum scandal is a political issue. The chief justice stated memo scam is about the integrity, security, sovereignty and independence of the country and you call it a political issue. The CJP questioned whether recognition of Bangladesh and allowing the Balochistan government to use consolidated funds for annual budget when provincial assembly was non-functional in Balochistan were not political questions? Why the Presidential References regarding the issues were sent to apex court for seeking its opinion? He said that when the constitution is silent on any specific issue then supreme court interpret the constitutional provisions.
During the proceeding again the chief justice said that President has not filed the reply. The court asked Asma to conclude her arguments tomorrow (Thursday) and after that counsels for petitioners would have an opportunity to rebut the points raised by Asma. The hearing was adjourned for today (Thursday).