ISLAMABAD: The Supreme Court accepted on Friday Pakistan Muslim League-Nawaz (PML-N) chief Nawaz Sharif’s petition on the ‘memogate’ issue and set up a judicial commission comprising chief justices of three high courts to investigate the scandal.
Announcing a unanimous verdict of the nine-judge SC bench, Chief Justice Iftikhar Muhammad Chaudhry observed: “To delineate measures to ensure enforcement of the fundamental rights, a probe is called for to ascertain the origin, authenticity and purpose of creating/drafting of memo for delivering it to (then) chairman of the US Joint Chiefs of Staff Admiral Mike Mullen through Gen (retd) James Logan Jones, former US National Security adviser.”
The inquiry commission comprising Balochistan High Court Chief Justice Qazi Faez Isa, Islamabad High Court Chief Justice Iqbal Hameedur Rehman and Sindh High Court Chief Justice Mushir Alam has been asked to come up with its findings in one month.
District and Sessions Judge Islamabad Raja Jawwad Abbas Hassan will act as its secretary.
The commission will hold its meetings in the IHC building.
The court constituted the commission by exercising its the powers under Article 187 of the Constitution, Order 32 Rules 1 and 2 read with Order 36 of the Supreme Court Rules, 1980, coupled with the principle of Civil Procedure Code.
Former ambassador Husain Haqqani, the central character in the memo scandal, will continue to remain in the country since an order restricting him on going abroad remained intact.
The defence was disappointed by the decision and its counsel Asma Jehangir told reporters outside the court that it was “the darkest day in the history of country’s judiciary”.
Jehangir, was quick in criticising the short order and termed it disappointing soon after its pronouncement.
She said she feared that the verdict would haunt the petitioners one day because it was not in accordance with the rule of law and did not inspire any hope. “The court went extra mile in granting more than what the petitioners asked for,” she regretted and described the verdict as something in which the court held the concept of national security above that of fundamental rights of the people and the civil authority.
Ms Jehangir said she was not afraid of contempt because the verdict was now a public property and could be criticised.
“I have long struggled for the rule of law and I am ready to go to jail for upholding the cherished concept of fundamental rights,” she said. “Was this our struggle for the independence of judiciary?”
She hinted at filing a review petition after going through the detailed judgment.
PML-N leader Ishaq Dar welcomed the ruling and suggested that national security institutions should not be attacked or criticised.
He said the order had not put any curb on the functioning of the Parliamentary Committee on National Security
which was also investigating the memo issue.
“It will be interesting to see what kind of report is prepared by the commission. It may either lead to conclusion of the matter or recommend formal legal proceedings against those involved,” Advocate Ahmer Bilal Soofi said.
Advocate Tariq Mehmood was, however, bitter and said: “Instead of deciding only on the maintainability of the petitions, the court ruled on the entire case on merit even by accepting the ISI chief’s demand to order collection of forensic evidence.”
In a way, he added, the ruling had provided an upper hand to the establishment against the backdrop of the current cold war between the civil and military relationship, the influence of which had diminished considerably after the lawyers’ movement.
The commission will exercise the powers of judicial officers and will be free to obtain services of advocates, experts of forensic science and cyber crimes.
Federal secretaries of interior, cabinet and foreign affairs, chief secretaries of the four provinces,
the FIA director general, inspector generals of police and Pakistan’s ambassador to the US and high commissioner to Britain will provide necessary assistance to the commission.
The government, through cabinet division secretary, will provide logistic support to the commission subject to its demand through the secretary of the commission which will be authorised to collect evidence within and outside the country.
The court asked Attorney General Maulvi Anwarul Haq to contact the Canada-based Research in Motion (RIM) through the Foreign Office for confirmation of the authenticity of electronic communications exchanged between Pakistani-American businessman Mansoor Ijaz and Husain Haqqani.
“This confirmation should be obtained at the earliest to save, protect and scrutinise the forensic evidence and should be produced before the commission,” the court said in its order.
It also directed the Pakistani High Commission in Canada to cooperate with the commission and assist it.
Mansoor Ijaz’s reply, the court noted, consisted of exchange of emails and other communications using the BlackBerry Messaging (BBM) service between them, adding that in fact during relevant days as many as 85 BBMs, voice calls and emails had been exchanged between the two.
“Prima facie these communications form the most important piece of evidence regarding purported contacts between the two for the purposes of drafting the alleged memo. Ijaz also claimed that he had electronic/telephonic interactions with Haqqani on October 28 and November 1, 2011,” the court said.
Referring to the December 1 press conference by former law minister Dr Babar Awan in which he had allegedly ridiculed the judiciary, the apex court asked its office to put a separate note in the chief justice’s chamber, along with transcript of the press conference and replies of the prime minister, for the purpose of issuing an appropriate order.
The proceedings were adjourned till the time the commission presented its report.