Finally, it goes the judicial way. Declaring the petitions seeking a probe into the memo controversy maintainable, a nine-member larger bench of the Supreme Court on Friday constituted a high-powered three-member judicial commission to investigate the matter and submit its report within four weeks, with a restriction still placed on Husain Haqqani disallowing him to leave the country without its permission.
The significance of the short order was the unanimity of the bench, headed by Chief Justice Iftikhar Muhammad Chaudhry. More significantly, the court, without undermining the authority of parliament, noted that “it would be appreciated if the outcome of the proposed enquiry by the Parliamentary Committee on National Security is shared with the court, if possible”. In exercise of powers of judicial review, the court held that the petitioners had succeeded in establishing that the issues raised in their petitions were justifiable and question of public importance with regard to enforcement of fundamental rights, prima facie, under Articles 9, 14 and 19A of the constitution, had been made out, thus the petitions under Article 184(3) of the constitution were maintainable.
Holding that to delineate measures with a view to ensuring enforcement of the fundamental rights, the court noted that a probe into the matter was necessary and ordered an investigation to ascertain the origin, authenticity and purpose of creating or drafting the memo for delivery to Former US Joint Chiefs of Staff Chairman Admiral Mike Mullen through General (r) James Logan Jones, former US national security adviser. The court said the due process of law was the entitlement of all stakeholders, therefore, to ensure a probe into the matter in a transparent manner it decided to appoint the commission, which would be headed by Balochistan High Court Chief Justice Qazi Faez Isa, with Islamabad High Court Chief Justice Iqbal Hameedur Rehman and Sindh High Court Chief Justice Mushir Alam as its members. Islamabad District and Sessions Judge Raja Jawwad Abbas Hassan was appointed the secretary to the commission. According to the short order, the commission would hold its meetings in the building of Islamabad High Court with a mandate to exercise all powers of judicial officers for the purpose of carrying out the objectives, freely availing services of advocates, experts of forensic science and cyber crime.
All federal secretaries, chief secretaries of all the provinces, Federal Investigation Agency (FIA) chief, inspectors general of police of all the provinces and ambassadors of Pakistan in the US and UK, have been directed to provide necessary assistance to the commission.
The government, through the cabinet secretary, will provide logistic support to the commission, subject to its demands through the secretary of the commission. The commission will be authorised to collect evidence within and outside Pakistan according to prevailing laws on the subject and provide full opportunity of hearing to all the parties. The court directed the High Commission of Pakistan in Canada to cooperate and assist the commission, as forensic evidence was likely to be collected from Research In Motion (RIM) Ltd, the Canada-based company that manufactures Blackberry smartphones. Repeating its December 1 order, the court directed Haqqani not to leave the country without the permission of the court. “This order is kept intact,” the court said, also asking its office to put a separate note in the chambers of the Chief Justice along with the transcript of the December 1 press conference of Babar Awan in which the judiciary was ridiculed. The court held that the short order would be followed by detailed reasons to be recorded later.
In its short order, the court particularly referred the ‘Objectives Resolution’, which has been made a substantive part of the constitution by means of Article 2A, which commands that: “And whereas it is the will of the people of Pakistan to establish an order; wherein integrity of the territories of the federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded; So that people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.” Meanwhile, the court adjourned the petitions for a date to be fixed after receipt of the report from the commission. Presidential Spokesman Farhatullah Babar would not comment on the decision but said President Asif Ali Zardari would not take on the courts. “One thing is clear. We don’t believe in confrontation with the judiciary and will continue to follow this policy of no confrontation,” Babar told AFP in a text message.