COAS, ISI DG’s stance vindicated in SC verdict


Announcing its detailed judgement on the maintainability of petitions filed by Pakistan Muslim League-Nawaz (PML-N) President Nawaz Sharif and others seeking a probe into the ‘memo’ controversy, the Supreme Court on Thursday held that the petitions were maintainable as the sovereignty of the state and fundamental rights of the citizens were obviously linked.
Contradicting Prime Minister Yousaf Raza Gilani’s statement that Chief of Army Staff (COAS) General Ashfaq Kayani and Inter-Services Intelligence (ISI) Director General Lt General Ahmad Shuja Pasha had submitted their replies in the Supreme Court in violation of the prescribed procedure, the court noted that Attorney General Maulvi Anwarul Haq, appearing on behalf of the federation, had contended that as the court had observed that the COAS and the ISI DG also fell within the definition of the federation, therefore, he was appearing on their behalf.
The court further noted that it was a matter of record that the replies submitted on December 14, 2011 on behalf of the respondents, the COAS and the ISI DG, were duly filed under a covering letter on December 15, 2011 before the court through the attorney general and similarly the affidavits of the army chief and DG ISI were delivered by the Defence Ministry on December 21, 2011 to the office of attorney general, which were filed in the court.
Earlier on December 30, 2011, in its unanimous short order, a nine-member larger bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry, had declared the petitions for probe into the ‘memo’ issue as maintainable and held that the detailed reasons that of how the petitions were maintainable would be recorded later.
In exercise of its powers of judicial review, the court had held that the petitioners had succeeded in establishing that the issues raised in the petitions were justifiable and the question of public importance with regards 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.
The 88-page detailed judgement authored by the chief justice noted that once a country’s sovereignty and independence was compromised, the life and dignity of its citizens were adversely affected, therefore the Supreme Court “finds itself compelled to hold the petitions to be maintainable under its original jurisdiction”.
The court held that the memo issue was clearly one of great ‘public importance’, which could not be brushed under the carpet.
The court pointed out that Asma Jahangir filed the affidavit of James Logan Jones, which he had not sent though the US embassy, the government or to the Supreme Court registrar and this affidavit, however, was contradicted by Mansoor Ijaz.
It said the situation also involved a threat to the enforcement of citizens’ fundamental rights, including their right to life (Article 9) and dignity (Article 14). The chief justice explained that “the link between sovereignty and citizens’ fundamental rights is obvious”.
Justice Jawwad S Khawaja and Justice Ejaz Afzal Khan also separately added brief notes concerning to the memo situation.
Justice Khawaja’s note looked at the case from the lens of the people’s fundamental right to information about public matters, enshrined recently in Article 19A. Quoting the Biblical saying, “And ye shall know the truth, and the truth shall set you free”, Justice Khawaja explained that the inclusion of right to access information in the constitution reflected a seminal change in the way Pakistan was meant to be governed.
In his note, Justice Ejaz Afzal Khan highlighted the direct nexus between the fundamental rights granted under articles 9 and 14 of the constitution, with the security and sovereignty of Pakistan.