ISLAMABAD - The Supreme Court in its detailed judgment on Memorandum scandal, released on Thursday, held that the Memo issue is clearly of great public importance and cannot be brushed under the carpet. The situation also involves a threat to the enforcement of citizen's fundamental rights, including their right to life (Article 9) and dignity (Article 14).
The Chief Justice has explained that link between sovereignty and citizens' fundamental rights is obvious. Once a country's sovereignty and independence are compromised, the lives and dignity of its citizens cannot be protected and it has adverse impact and, therefore, the Supreme Court finds itself compelled to hold the petitions to be maintainable under its original jurisdiction.
Chief Justice Iftikhar Muhammad Chaudhry authored the judgment, while Justice Jawwad S Khawaja and Justice Ejaz Afzal have added brief notes.
The background of the petitions has been described in detail. Also, the arguments of both sides have been minutely analysed in the light of the Constitution, Supreme Court precedents and precedents of other constitutional courts faced with similar challenges.
The court has examined the arguments of, amongst others, Mr Haqqani's counsel Ms Asma Jehangir, who argued that since no fundamental right of the people was at stake, and since a Parliamentary Committee was already investigating the said matter, the petition was not maintainable.
Senator Ishaq Dar, member of the same parliamentary committee, however, countered this suggestion. He urged the court to appoint a commission for investigation-something which fell beyond a Parliamentary Committee's capacity. Ms Jehangir also urged the court not to admit a petition which, she contended, was brought before it only at the behest of the country's security establishment.
It is the settled principle of law with regard to exercise of jurisdiction under Article 184(3) of the Constitution that the court should not enter into disputed questions of fact involving appreciation of voluminous evidence. However, to decide the question brought before the court relating to the public importance and enforcement of fundamental rights, there is no prohibition to consider facts, which do not require consideration of voluminous evidence.
Text of the memo, which contains six points, are regarding the concessions, which will be given to America so that all the desired demands of American Army are met and Pakistan will change its security team and new national security team will make arrangements, provided the pressure of Pakistan Army on civilian governments is released or control by the Army on civilian government is removed through America's interference, etc.
The letters of Husain Haqqani written on November 16, 2011 to President Asif Ali Zardari reproduced in the judgment, point out two things, first he had taken upon himself to make the reference of the letter/memo with reservation that he had not associated himself to originate/draft it on behalf of the President of Pakistan; secondly he had made the reference to the incident, which took place on 2nd May, 2011, which resulted in killing of Al-Qaeda leader, Osama bin Laden.
Justice Jawwad S Khawaja and Justice Ejaz Afzal Khan have added brief concurring notes. Justice Khawaja's note looks at the case from the lens of the people's fundamental right to information about public matters, enshrined recently in Article 19A. Quoting the Biblical saying: "And ye shall know the truth, and the truth shall set you free" Justice Khawaja explains that the inclusion of right to access information in the Constitution reflects a seminal change in the way Pakistan is meant to be governed.
The emergence of truth in public affairs offers a great hope for the functioning of democracy in the country. The public has previously been fed half-truths and rumours about the greatest episodes of our national history. Now, however, citizens are entitled to know the truth under Article 19A. And if they approach the court for enforcement of this right, as in the present case, they cannot be turned down. The inquiry commission has been constituted to enforce this right.
Justice Ejaz Afzal Khan, in his note, has highlighted the direct nexus between the fundamental rights granted under Article 9 and 14 of the Constitution, with the security and sovereignty of Pakistan. He stated that the security of person is one of the most important fundamental rights. It is inextricably linked with the security of the State. A petition filed by a citizen asking for the issuance of an appropriate writ cannot be declined simply because his fundamental right has not yet been infringed. Security of person in the absence of a strong, secure and stable State would be inconceivable.
The memo, allegedly written by ambassador Haqqani, acting at the behest of President Zardari, contains an offer to strike a covert deal with the United States, much like the various covert deals said to have been struck with America by the Musharraf government. This time, however, the matter has been brought to light by Mr Haqqani's supposed messenger, Mansoor Ijaz, an American Pakistani.
The petitioners, among them the PML-N chief, Muhammad Nawaz Sharif, had earlier requested the court to order an impartial inquiry about the memo's existence, origin and implications. The court accepted this request of the petitioners by appointing a high powered commission consisting of the three senior-most chief justices of the high courts in the country.