Former ambassador to the US, Husain Haqqani filed a review petition in the Supreme Court on Monday seeking a review of the court’s December 30, 2011 short order, which declared the petitions for probe into the memo controversy maintainable and constituted a three-member judicial commission to probe the matter and submit a report within four weeks.
He requested the court to stay the proceedings before the judicial commission until the disposal of the review petition, as he would suffer irreparable harm if the commission reached a conclusion during the course of his review petition. The review petition was filed by Haqqani’s lawyer Asma Jahangir. The petitioner contended that the court in its December 1, 2011 order put restrictions on his movement and appointed a commission to preserve the evidence without hearing him.
He prayed the court to review its order, as the petitions declared maintainable were beyond the purview of Article 184 (3).
He said the court had heard the petitions on the question of maintainability, however, in its December 30 order, it fully exhausted the entire relief sought by the petitioners in every respect.
The petitioner stated that the judicial commission constituted by the court was not permissible by law, as it could not issue directions to the judges of the high courts to constitute a commission.
Giving legal references, the petitioner stated that under the Civil Procedure Code (CPC) Order 26 rule 4 sub rule 2, a commission set up to examine any person or evidence may be deputed to any court except “not being a high court”. He said high courts were not subordinate to the Supreme Court, thus it could not issue them directions. He added that Article 187 remained subject to Article 175 (2), thus the Supreme Court could not direct the high courts to constitute any commission.
The petition stated that the court had made an error by applying the principles of CPC to a probe that on the face of it was of a criminal nature, thus denying the petitioner (Haqqani) his fundamental right under Article 13 and 10A. He said the court appointed the commission by exercising its authority under Article 187 read with order XXX1, rule 1 and 2 as well as order XXXVI of the Supreme Court Rules, 1980 as announced in the December 30 short judgment, despite the fact that Order XXXVI of the Supreme Court Rules had been repealed in 2003.
The petitioner said his fundamental rights under Article 9 and 15 had been denied whereas he had so far not been formally accused of any offence of any nature.
He stated that the court had misread the facts that the article in Financial Times of October 10, 2011 carried the memo with it, adding that the contents of it were unknown even to this point of time. The petitioner stated that while interpreting the fundamental rights, the court had assumed its infraction and the enforcement order did not redress any such infringement. He added that no terms of reference had been set out while determining the scope and ambit of the judicial commission assigned to probe the memo issue.
