SC to hear if moved on COAS, ISI DG

Media reports about the possible removal of Chief of Army Staff General Ashfaq Parvez Kayani and Inter-Services Intelligence (ISI) chief Lt Gen Ahmad Shuja Pasha in the wake of the memo controversy echoed in the Supreme Court during the first hearing of the memo case here on Tuesday, as Chief Justice Iftikhar Muhammad Chaudhry said if the matter came to the court, the court would have to decide it.
During the hearing, when the chief justice, who was heading a nine-member larger bench, noted that the news about the possible removal of the army and ISI chiefs was published and came under discussions suggesting that action had started on the memo issue, Asma Jehangir, counsel for former ambassador to the US Husain Haqqani, stated that there should be no role of the court if the prime minister removed anyone from their post(s).
She said the court had no concern with the removal of the army chief and it should not interfere, as the prime minister was empowered to remove the army chief. Arguing the maintainability of the petitions filed by Pakistan Muslim League-Nawaz (PML-N) President Nawaz Sharif and others seeking a probe into the memo issue, Asma contended that these petitions were not maintainable as the fundamental rights of the petitioners were not affected because of the memo issue, nor had they mentioned any such thing in their pleas.
She said, however, that the fundamental rights of her client were affected because of these pleas as he was condemned unheard. She said it was not a matter of fundamental rights, instead a politically motivated game. She said the media was portraying his client as an accused because of the court’s December 1 order, which was passed without hearing him.
The court told her that if she wanted, the media could be restricted, but she said she would not demand that but would produce a judicial verdict to this effect.
The chief justice told her the court had not restricted her client from going abroad and did not even pass any negative remarks against him, instead calling him a very respectable citizen.
Asma contended that the memo was just an assumption, thus no fundamental rights of any one were infringed upon because of it. She said being an assumption, no forum for its probe was necessary. Justice Mian Saqib Nisar, however, noted that the law gave the right to the court to probe the matter and collect evidence. “The parliamentary committee also has the same right,” Asma contended.
She said the court was hearing the ISI’s plea, but his client was not heard and a decision was given against him. She said if the ISI’s reports were examined, Wali Khan, Benazir Bhutto and many more – including members of the superior judiciary – would be found to have been stigmatised. She said the court only had to pay attention to the law, adding that it should not be worried about the security of the country’s frontiers, as other institutions were there for the purpose. She said the control of nuclear assets should be with the president and prime minister, as the army was not the sole owner of the nuclear assets, the entire nation was. She said further that Blackberry Messages of Mansoor Ijaz did not mention the memo. She said Ijaz had published his article in the Financial Times after his meeting with the ISI chief.
When Attorney General Maulvi Anwarul Haq read out the federation’s rejoinders over the memo issue, the court asked him that if the memo was “just a piece of paper”, why was a meeting called in the Presidency over it? The chief justice observed that the Pakistani nation was a living nation, which did not tolerate the things written in the memo. He said the nation wanted there to be no compromise over the country’s interests and sovereignty. He said Benazir Bhutto was a great leader but there had been no progress in her assassination probe, despite Tuesday being her fourth death anniversary. He said a reference was filed to revisit the death sentence of former prime minister Zulfikar Ali Bhutto, adding that the murder of former prime minister Liaquat Ali Khan was still a mystery. He noted that a reply was sought from the president over the memo issue, however he did not bother to file one, as maybe he did not deem it appropriate. He said there was no restriction on the courts to hear memo-like issues.
In his arguments, the attorney general submitted that the Presidency had contradicted the alleged memo on October 29, whereas the prime minister had ordered its investigation on November 22. He said Haqqani had resigned before the meeting took place at the Presidency. To a court query, he said the memo was a matter of public interest but it was nothing more than a piece of paper, which did not infringe the fundamental rights of the petitioners. Justice Jawwad S Khawaja responded that it would be ascertained after the probe whether the memo was just a piece of paper or something more. He said the Foreign Affairs Ministry had not contradicted the memo and had disowned it.
When the chief justice repeatedly asked the attorney general that if the memo did not exist, why was Haqqani made to resign and why had the prime minister ordered an investigation into it, the attorney general stated that the court should wait for the recommendations of the Parliamentary Committee on National Security over the issue and till that time the court should not hear the case. The court then adjourned further hearing for Wednesday (today), directing Asma Jehangir to conclude her arguments by then.