The lawyers’ community is divided over the Supreme Court’s intervention in the ‘memogate’ issue, as some of them believe that the court has rightly entertained the pleas on the issue, while some are of the view that the court should have declined to entertain the matter as such matters should only be dealt by parliament. According to a renowned constitutional expert, Justice (r) Fakhruddin G Ebrahim, the Supreme Court has a wide jurisdiction to entertain and adjudicate upon such matters under Article 184 (3) of the constitution. He said the court even had a jurisdiction to take suo motu notices into such matters. “How the court, being guardian of the constitution, could decline to entertain the pleas on a constitutional issue, purely involving sovereignty and integrity of the county,” he added. To queries, he said the court was fully empowered to form fact-finding commissions on such matters.
Rejecting the government’s stance that only the executive was constitutionally empowered to constitute such commissions, he said not only the Supreme Court, but even the Sessions Courts enjoyed the authority to order formation of such commissions if required. He said the Supreme Court has earlier formed dozens of such fact finding commissions on the matters of national importance and the government never objected to it. He said the federation was heard before naming former FIA chief Tariq Khosa as commission head to probe the issue of ‘memogate’, as the attorney general was present in the court and he did not oppose to the formation of the commission. According to PPP leader Aitzaz Ahsan, the court was fully empowered to entertain such issues. He said, “Had the government started investigation of the ‘memogate’ issue in time, neither petitions over the issue would have come to the court, nor would the court have to intervene in the matter,” he said.
To a query, he said when parliament and the administration fail to provide relief to the people, they start approaching the judiciary. However, the judiciary could not be considered a substitute of parliament. He said parliament was not functioning and delivering in a way it should function and deliver to the expectations of the people. According to senior lawyer Justice (r) Tariq Mehmood, “Had the FIA timely taken investigation of the ‘memo’ issue, the court would not have inferred into it.”
He said the commission could not be termed parallel to the Parliamentary Committee on National Security, which was due to start probing the issue after a few days, as he said the facts collected by the parliamentary committee could be shared with the commission. Meanwhile, SCBA President Yasin Azad is of the view that the issues like ‘memogate’ should be taken up in parliament and the judiciary should not be involved. He said the political stakeholders should settle their issues in parliament and the matters like ‘memogate’ should be resolved by parliament. He said only parliament should form a commission on the issue of ‘memogate’.
According to former SCBA president Asma Jahangir, PML-N President Nawaz Sharif should have discussed the issue in the National Assembly as his party had 90 seats and should have avoided taking it to the court.
She believed that the SC gave its short order and formed a commission for probing the ‘memogate’ issue without properly hearing the federation. At the same time, the Central Free Legal Aid Committee of the Pakistan Bar Council (PBC) headed Muhammad Ramzan Chaudhry, believed that the matter which as already pending with the Parliamentary Committee on National Security, should be decided by it and the Supreme Court should not involve itself in such political matters.
He said the matter of ‘memogate’, which did not even offend any fundamental right, should not have been brought before the Supreme Court at the cost of the valuable time of general litigant public whose cases, which are hundreds and thousands in number, were pending adjudication.
