Silence means consent: SC

Hearing a set of identical petitions filed by Pakistan Muslim League-Nawaz (PML-N) President Nawaz Sharif and others seeking probe into the memo controversy, a nine-member larger bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry on Monday observed that President Asif Ali Zardari, a respondent in the case, neither filed a reply nor refuted the allegations levelled by the petitioners, observing that silence meant acceptance of the charges.
The court also observed that each para of the reply filed by the army chief was very “important and noteworthy”. Justice Ejaz Afzal Khan noted that if para one, six and the last para of the memo was read jointly, it gave an impression that sovereignty of the country was being surrendered.
At the onset of hearing, the court took a strong exception to a press conference convened by Babar Awan and other government functionaries at the office of the information secretary immediately after the court’s December 1 order in the memo case, saying the court order was ridiculed and insulted through contemptuous language, besides degrading a judge who was not a even a member of the bench that heard the memo case.
When the court inquired whether it was a stand of the government to ridicule the judiciary, Attorney General Maulvi Anwarul Haq said it could not be so. However, the court directed him to take instructions and file a statement in writing during court timings. In the second half of the proceedings, the attorney general pointed out that as the prime minister was not available, he would submit the statement after seeking instructions.
The court observed that if the stand of the prime minister was the same as he was expressing on behalf of the federation, the prime minister must inform the court about the action he had taken against the people who used official premises to ridicule, insult and criticise the judiciary, despite the fact that the case was sub judice.
The court also noted with concern that the federal law minister, despite being well versed with the law, criticised court proceedings in the memo case by uttering the words that ought not to have been used by him. The court directed the attorney general to place on record the copies of the notification in pursuance of which Justice (r) Javed Iqbal was appointed the chairman of the commission to inquire into the May 2 Abbottabad incident without consulting the chief justice of Pakistan, resignation tendered by former ambassador Husain Haqqani and the notification of acceptance of the same.
Petitioners Barrister Zafarullah Khan and Tariq Asad advocate argued that the petitions filed by them and others against the memo controversy were maintainable. When Rashid A Rizvi, counsel for Nawaz Sharif, started his arguments, the court adjourned the case for Dec 22 on a request by Asma Jahangir, the counsel for Husain Haqqani, on account of post-marriage ceremonies of her daughter.
Before adjourning the case, the court noted that despite its December 15 order in chambers, replies or rejoinders had not been filed by the respondents, which were deemed necessary for just decision of the matter. The court noted that it had already held that in order to ascertain whether a question of public importance was involved to exercise jurisdiction under Article 184(3), the facts of the case needed to be examined. The court then directed the petitioners and respondents to file affidavits under Order VIII rule 1 of the Supreme Court Rules, 1980, subject to all just exceptions, to clear the cobwebs in the different stands taken by them.
“The Federation of Pakistan shall swear affidavits, denying or accepting item-wise/parawise the stand taken by the chief of army staff, ISI DG, former ambassador Husain Haqqani as well as Mansoor Ijaz. Both the latter mentioned persons shall also swear affidavits, denying or accepting parawise the stand taken by the federation, chief of army staff, ISI DG and so on and so forth. All such affidavits shall be filed and exchanged by the parties before the next date of hearing,” the court said.
During the hearing, the chief justice said even senior lawyer Asma Jahangir, from whom the court had great expectations, did not file a contempt petition against the people who ridiculed the court’s December 1 order. Asma, however, submitted that she had not watched the particular news conference of the ministers, but said the institution had to be respected.
The chief justice told the attorney general that army chief Gen Ashfaq Kayani had given important points in his reply.
“You should be thankful to God that the country has a strong and independent judiciary with which the army chief and ISI DG are submitting their responses,” he added.