ISLAMABAD - The Supreme Court on Thursday rejected the impression being given by the federation that memogate is just a ‘piece of paper’, saying Pakistanis were an alive nation who will not tolerate the memo contents.

A nine-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry heard the memo case. Referring to the interior secretary’s affidavit, the chief justice remarked if the federation considers it a piece of paper, why a key meeting was held at President House, where president, prime minister, chief of army staff and ISI DG were present? Why former ambassador of Pakistan to the US Husain Haqqani resigned and why did the prime minister ordered investigation?

Justice Shakirullah Jan said for the federation memo was piece of paper, but chief of army staff has termed it substantial document and accepts its existence. The court observed that the entire nation stands united on making no compromise on country’s security, integrity, sovereignty and independence.

The CJP said they have asked the president, one of the respondents, to file his reply on the memo controversy. During the proceeding, the chief justice also said that four years have passed to the assignation of Benazir Bhutto but still her murderers remain unknown. He said Chaudhry Aslam, a PPP worker, has filed a petition in the Supreme Court for exposing the names involved in BB’s assassination whom the government failed to identify and arrest.

Ishaq Dar informed the court that the Principal Secretary to Prime Minister Khushnod Akhtar Lashari through notification on 28-11-2011 has unlawfully expanded the mandate of Parliamentary Committee on National Committee, which is carrying out a parallel investigation of the memo issue. He said only the joint session of the parliament could expand committee’s mandate which was established through a resolution of the joint session. The court observed that the parliament itself is supreme and how someone can direct it. Saying that according to the Rules of Parliament even the whole of the government cannot direct it, Justice Jawwad S Khawaja questioned as to how then the prime minister has ordered the parliamentary committee to probe into the memo scam?

Attorney General for Pakistan Maulvi Anwarul Haq and Asma Jahangir counsel for Husain Haqqani insisted that petitions are not maintainable under Article 184 (3) of constitution, as no petitioners’ fundamental rights have been infringed in the memo scam. The attorney general conceded that memo scam is of public importance but said the mention of enforcement and infringement of fundamental rights was missing. He suggested that Article 199 has much wider scope. The AG point of view was that court should show restraint in this matter as the parliamentary committee was seized with the matter. He however, did not say that there was any bar on apex court to hear the case.

Asma argued that question of public importance has been politicised. It is has been made important by some vested interest groups. The court jurisdiction under Article 184 (3) has been linked closely with the violation of enforcement of fundamental rights. She remarked that though the court is custodian of fundamental rights but it should not go beyond its authority, otherwise it would be an encroachment. Ijaz Mansoor in his reply has stated that he tried to speak to Husain Haqqani on many occasion but the former envoy replied to him, ‘I am busy.’ She prayed that Shafqatullah Sohail letter, which was converted into petition, be dismissed as it was not the petition under the fundamental rights. Similarly, Wattan Party’s is nothing of the fundamental rights.

Asma contended that ISI DG and COAS in their replies said that time is of essence. She argued that till the time ISI DG did not meet Mansoor Ijaz in London there was no issue of memo in the country, but that happened after the meeting. The court observed if that was the case, it should be thoroughly probed and it would provide justice to Husain Haqqani. Asma said: “I would say this is not your (court) right. This is the realm of executive to take the ISI DG to task.”

The chief justice said two days ago there was news in the media that COAS is being sacked but yesterday (Sunday) the prime minister has dispelled this impression, which is good omen. Asma said if the PM decides to remove COAS, let him do that because that is his right and the Supreme Court should not intervene in it. Asma questioned who has given ISI DG authority to probe the memo scam? ISI is not the investigation agency, but intelligence agency of Pakistan, he added. She said: “If we would pay attention to ISI DG point of view then half of the people present in the courtroom are traitor.” The ISI declared Wali Khan and Benazir Bhutto as traitors, she mentioned.

Asma said not the army but the entire nation is owner of the nuclear assets, and that prime minister being the chief executive of the country and president as commander-in-chief should have its control. Asma said nuclear assets have no nexus with the memo. The court observed that for nexus there should be probe. She remarked the court is responsible to uphold constitution and law while there were institutions (armed forces) to protect the frontiers of the country. Asma said if the court would supervise the investigation, it would tantamount to overstepping its jurisdiction. Asma said that not only the court, but also the other institutions have wisdom, power and patriotism. The memo is unsigned document and going extensively against the government.

Haqqani’s counsel said the court has to protect the fundamental rights against the excess of the executive, exploitation and oppression. She said her client’s rights were taken away without hearing him, adding due process should not be denied to him. The chief justice said: “We in the December 1 order stated that Husain Haqqani is innocent and we have done nothing against him.” The court asked Asma to conclude her arguments tomorrow (Wednesday) and adjourned the hearing.

Meanwhile, the AGP Tuesday again filed Prime Minister Yousuf Raza Gilani’ reply on the PPP leaders press conference at Press Information Department (PID) on December 1. The Supreme Court in the last hearing dismissed the prime minister’s reply on the press conference, directing the attorney general to file a clear and comprehensive reply on it.

The PM’s reply states that for the last three decades PID office has been used by various ruling parties for news conferences. It further states that party chief whip, secretaries of finance and information, minister for information and senior leaders of the PPP were present in the conference. Whatever historical perspective of the party was presented in the conference, there was no doubt about it in PM’s mind, while the presidential reference on Zulfikar Ali Bhutto’s murder is the continuance of that perspective.

However, the PM took the stance that whatever was said in the press conference was not aimed at disgracing the court or any judge of the apex court. The PM assured that his government believes in tricotmoy of power, rule of law and under the constitutional scheme believes in the supremacy of the democratic elected government.