SC will not endorse military takeover

With the government and the army facing off, the Supreme Court also jumped in the fray on Friday, throwing its weight behind the democratic system as Chief Justice Iftikhar Muhammad Chaudhry, heading a nine-member larger bench hearing the memo case, made a categorical statement that the question of a military takeover was out of place as the judiciary would never endorse any such unconstitutional step.
The chief justice said gone were the days when unconstitutional governments used to get extensions from the court. “There is no question of a takeover,” the chief justice remarked after Syed Ghous Ali Shah, a petitioner, argued that after the May 2 Abbottabad raid, an impression was created that the army was behind it and wanted to take over the country.
The chief justice also noted that there was no question of any military takeover, adding that after passing a restraining order on November 3, 2007, the court had declared all actions taken by adventure as void and illegal. He said now the constitution prevailed in the country and there was rule of law and supremacy of the constitution, which was a great achievement.
He said there was no authority except the constitution and it would be implemented at all costs. He said everyone, including the army and Inter-Services Intelligence (ISI) chiefs and former ambassador Husain Haqqani, was in favour of the investigation of the memo issue. “It is because of lawyers, people and parliament that institutions are getting stronger,” the chief justice said, adding that in the Karachi case, the Rangers director general (DG) appeared in court while the Pakistan People’s Party (PPP), the Muttahida Qaumi Movement (MQM) and other political forces also showed trust in the court. He said the constitution would prevail, the system would run and good times would come. The court also questioned Haqqani’s resignation if he was not guilty. The court noted that four meetings between the top political and military leadership had taken place over the memo issue, Haqqani was called back and then his resignation had been handed in. The court said if Haqqani was not guilty, his resignation had come without proper procedure or enquiry.
On the contention of Pakistan Muslim League-Nawaz (PML-N) Senator Ishaq Dar that the issue of whether the memo was written was not controversial anymore because almost all of the petitioners and respondents were agreed on the fact that the memo was written, the chief justice noted that it had yet to be decided. On another contention of Dar’s that the ambit of the Parliamentary Committee on National Security was limited and it could not probe the memo-like issues as it was formed through a parliamentary resolution, Justice Mia Saqib Nisar observed that parliament was performing its duties and the court could not be barred from performing its constitutional functions.
Dar stated that not only the parliamentary committee but even the entire parliament could not collect forensic evidence in the memo issue. He said so far, not even a single document over the memo issue was submitted to the parliamentary committee by the government. He said four resolutions passed by parliament had not been implemented yet. He said there was no law that could punish the government for not implementing the parliamentary committee’s resolutions or orders.
Meanwhile, the court rejected the prime minister’s reply over the assertions made by incumbent ministers in a press conference on December 1, 2011, ridiculing the judiciary and criticising the court’s orders to form a commission to probe the memo issue. Prime Minister Yousaf Raza Gilani had stated in his reply that the point of view taken in the press conference was not of the government, but of the PPP in the historical perspective. When the court asked what the ‘historical perspective’ was, the attorney general stated that it was, over the period of time, what the party said inside and outside court.
“We want simple and clear reply of the prime minister,” Justice Jawwad S Khawaja said, adding that the PM’s statement showed that whatever the party leaders said in the press conference was right. “The PM cannot blame his party, but if he does so, he should know the consequences,” the chief justice remarked.
Justice Khawaja said if it was the point of view of the party, then according to the principles set by the constitution, no party could utilise the public buildings. He observed further that the party should have arranged the press conference at private premises such as hotels.
“The reply purportedly filed by Attorney General Maulvi Anwarul Haq on behalf of the Prime Minister is evasive because there should be a categorical stand taken by the prime minister or the federal government in this behalf instead of shifting the burden upon the political party under the garb of historical perspective,” the court ruled. The court told the attorney general that contrary to it, the president, who himself was the co-chairman of the ruling PPP, while submitting a reference under Article 186 of the constitution to revisit the case of Zulfikar Ali Bhutto had recognised and accepted that the judiciary in Pakistan was independent and playing a proactive role in the cases of public importance, which suggested that instead of making an ambiguous statement, the federal government ought to have taken a clear stand.“The reply so filed is not acceptable,” the court said and directed the attorney general to seek fresh instructions from the prime minister and file a comprehensive and clear reply by Dec 27.
“We are of the opinion that government premises could not be allowed to be used for holding a press conference wherein, prima facie, the judiciary was ridiculed and insulted,” the court ruled. The court also issued notices to the president, prime minister, ISI chief and all other parties to submit their replies over a constitutional petition filed by Shafqat Ullah Sohail, a Canadian citizen of Pakistani origin. The court also sought content-wise comments of the federation on the reply of Army Chief General Ashfaq Parvez Kayani, ISI DG Lt Gen Ahmad Shuja Pasha, Haqqani and Mansoor Ijaz. Later the hearing was adjourned until December 27.