A nine-member larger bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry, hearing a set of identical petitions filed by Pakistan Muslim League-Nawaz (PML-N) President Nawaz Sharif and others seeking a probe into the memo issue, was told on Wednesday that if the involvement of President Asif Ali Zardari was proven in the memo issue, it would constitute grounds for impeachment.
Resuming her arguments, Asma Jahangir, counsel for former ambassador to the US Husain Haqqani, argued that although the memo was a worthless piece of paper, if the involvement of her client in writing the memo was proved, it constituted a criminal case against him. She said if it was proved that the president was responsible for the memo, then it constituted grounds for impeachment of the president.
The chief justice then observed that the affidavits filed by the federation, army chief, Inter-Services Intelligence (ISI) chief, Haqqani and the prime minister did not deny the existence of the memo. He said forensic evidence was required to reach the reality of the memo controversy, which could only be obtained from abroad through the court, as Research In Motion Ltd, the company that manufactures Blackberry smartphones, only provided such records to the court. He said the probe of the memo issue through the court would be most transparent. He said the court had the jurisdiction to determine a forum to probe the matter, and could interfere in any matter involving public interest and breach of fundamental rights.
He said the memo issue was not a political matter, rather a matter of national security and sovereignty. He said the Parliamentary Committee on National Security could only investigate the matter when it was asked by parliament, adding that when assemblies did not deliver, matters came to the court. Asma contended that only on the basis of a piece of paper, Mansoor Ijaz, who was a US citizen with loyalties to the US, leveled allegations against her client. Justice Jawwad S Khawaja asked Asma to explain Article 19-A, which gives the right of access to information. The chief justice repeatedly asked her that if someone demanded the investigation of any matter from the court, what the court should do. “You are the king”, she replied. “Not us, but constitution and law are the king,” the chief justice retorted, adding that Haqqani also wanted to be bailed out after an investigation. Asma submitted that her client was ready for investigation, however it was a politically motivated matter brought forward by the ISI director general.
The chief justice said it was not a political matter, but a matter involving national sovereignty and security. He said the president had not provided his reply in the memo case, and asked Asma what that should be considered. Asma said if that was so, the matter was headed towards the impeachment of the president. The chief justice, however, noted that the court had no concern with it and wanted to keep it limited to the extent of the memo issue. She said if the court thought that it could assume the function of a trial court, it could summon Mansoor Ijaz. She contended that the petitions were not maintainable, as no tangible effects were witnessed in the post memo scenario. She said there was not a single breach of fundamental rights of anybody in the memo case, but her client was barred from moving abroad without a hearing. The chief justice noted that the army chief and ISI chief had substantiated the existence of the memo, calling it “a reality”, which was allegedly written against Pakistan Army to former US Joint Chiefs of Staff chairman Admiral Mike Mullen.The court noted that the prime minister did not deny the presence of the memo, whereas the president did not submit his rejoinder, adding that it did not mean that the president had denied the existence of the memo.
Asma contended that the petitioners had to establish that they had not come to the court for personal or political reasons or to camouflage somebody else’s interests, and filed the petitions to seek relief under public interest litigation only. Justice Mian Saqib Nisar observed that Article 184 had an open-ended jurisdiction.
Asma presented various citations to establish that the court could not pass any order under Article 184 of the constitution, which was not viable for implementation, adding that if it was presumed that an enquiry in the case in hand declared Haqqani guilty, then he would be sent to a trial magistrate. She said due process of law demanded that any criminal case must be filed before the judicial magistrate rather than approaching the apex court, adding that due process of law had not been observed in the case of her client.
The chief justice then observed that the investigations into the memo issue would be more transparent under the judiciary and the apex court was equally responsible for safeguarding everybody’s rights without discrimination under the constitution.
Asma said Haqqani shouldered his diplomatic responsibilities under extremely difficult conditions, as he had to contact a host of people in the wake of the May 2 incident. She categorically stated that the court was looking at the matter from a legal perspective, whereas the press would view it as a media trial.
Later, the court directed the parties to conclude their arguments by Thursday (today) and adjourned.