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Deconstructing the SC order on the memo – by Asad Jamal

The writer is a Lahore-based advocate of the high court. He has an LLM from the University of Sussex

The Supreme Court’s decision on the alleged memorandum has become controversial — and not just because the court’s nominee for the probe into the matter has refused to head the proposed commission. One criticism of the order is that the court has taken cognisance of a matter over which it does not have jurisdiction. It is also being argued that the court has overreached by appointing a commission when the prime minister had already ordered a probe by the Parliamentary Committee on National Security. And, lastly, the undue haste shown in issuing the ad-interim short order without hearing the respondents is being debated as well.

Let’s first take the question of jurisdiction. Article 184(3) empowers the Supreme Court to make an order in matters of public importance guaranteed in Chapter I of Part II of the Constitution. Before making any substantive order, the court ought to have addressed this critical aspect, i.e. whether there is a matter of public importance in which violation of any fundamental rights has taken place. The order postpones this most essential question, without an answer to which the court should not have proceeded to make an order of this nature.

The only facts established so far are that a so-called businessman, Mansoor Ijaz, wrote a memorandum and got it delivered to then-US military chief Admiral Mike Mullen. Everything else, including the role of Pakistan’s former ambassador to the US, Husain Haqqani, and the nature of the offence supposed to have been committed, remains in the realm of conjecture.

The question then arises: how would it make a case of violation of any of the fundamental rights of any of the petitioners or the public at large to bring it within the scope of Article 184(3)? First of all, it needs to be established if anyone from Pakistan had commissioned Mansoor Ijaz to write and deliver the alleged memo. Even if the delivery of the memo on behalf of the former ambassador is somehow established, it is unlikely that a rigorous legal argument will be available to show that the contents of the memo were tantamount to compromising the ‘sovereignty, security and independence of Pakistan’. It will be even more difficult to show a link between an alleged attempt to compromise the ‘sovereignty, security and independence of Pakistan’ on one hand, and violation of fundamental rights including right to life, liberty, property, trade, business and profession, on the other.

After assuming that the memorandum’s “issuance, prima facie, seems to be established”, a suggestion has been made by the court that the offence, the nature of which is yet to be established, may attract Article 6, i.e. the offence of treason. It needs to be pointed out that treason is the only offence which has been defined in the Constitution under Article 6. The High Treason (Punishment) Act, 1973 enacted under Article 6 clearly provides that the federal government alone can take the matter to court (section 3). There is no legal argument to bring the offence of treason within the scope of Article 184(3). Indeed, there is long history vis-à-vis this and there is wisdom behind why parliament has entitled the government alone to initiate proceedings in matters involving treason. The petitioners have, intriguingly, arrayed the president of Pakistan as a respondent, to which no objection was raised by the court. The court ought to have seriously considered this since Article 248(2) clearly stipulates that no criminal proceedings whatsoever can be instituted against the president during his term of office. On the other hand, Article 47 of the constitution provides for impeachment, so that if parliament finds it appropriate, the president could be impeached in order to pave way for criminal proceedings.

The argument being constructed in the media regarding the court’s power to form a commission for preliminary investigation is misplaced. The real question which the court ought to have addressed is: whether the court could order for a commission to probe while the Parliamentary Committee on National Security was already seized of the matter, a fact to which the attorney general of Pakistan who was, mind you, not representing the Federation, tried to draw the court’s attention.

However, the court did not consider this worthy of attention. The court refers to the committee in Paragraph 7 and Paragraph 9 of the order. The reference to the committee is made in Paragraph 9: “We are told that the Prime Minister of Pakistan has also announced that the Parliamentary Committee on National Security will probe into the matter. We do not know the mandate of the Committee. However, we have been informed that as far as this Committee is concerned, it has no constitutional backing, i.e. it has not been constituted under any provision of the Constitution.”

There are two aspects to the formation of the Committee: its constitutionality and its mandate. Constitutionally, the committee represents the parliament under Article 57 read with Article 72 and Rule 22(b) of Parliament Joint Sitting Rules, 1973, which clearly implies the formation of a joint committee of both the houses. Two, the mandate of the committee could have been easily verified from the government. What was the urgency? Moreover, the referral of the matter to the committee was reported in the media two days before the short order. And the terms of reference reportedly included (a) probe into the memo purportedly written and sent by Mansoor Ijaz, and (b) to give consequential recommendations on the subject.

The committee, which comprises representatives of all parties in the parliament, could further expand the scope of the probe. The order, on the other hand, authorises the commission to not only conduct the probe, protect and preserve evidence but also asks to render opinion on “whether such an act is tantamount to compromising the sovereignty, security and independence of Pakistan”. May one ask, with all due respect, how can an investigator perform such a task which even legal minds would find hard to grapple with?

Most importantly, while the court is conscious of safeguarding the fundamental rights of petitioners who failed to show before the court (if indeed any violation of fundamental rights took place), it failed to see that by binding the former ambassador Husain Haqqani to stay in the country, his fundamental right to free movement has been abridged without there being any concrete evidence of his involvement in the whole affair. He has consistently denied his role. The court has extensively referred to statements issued by Mansoor Ijaz but seems to have completely ignored Haqqani’s statements and interviews.

A fundamental principle of natural justice audi alteram partem i.e. no one may be condemned unheard, enshrined in Article 10A, is visibly ignored. The order does state that the court does not “want to attribute to him anything adverse about his involvement and he is entitled to due respect”, and yet his freedom has been curtailed, making his person questionable in the eyes of the people at large.

Published in The Express Tribune, December 6th, 2011.