Commission may have to After memogate SC verdict

The News International
Sunday, January 01, 2012

ISLAMABAD: The Supreme Court Friday ruled that all petitions in the memogate case were maintainable, a Commission, comprising three high court chief justices, has been tasked to probe into the issues. It goes without saying that this will have a far-reaching impact on multi-layered issues of national sovereignty, security and the alleged offer to place country’s nuclear assets under a Control and Command System acceptable to the US Administration.

Keeping in view, the extreme importance of the issue particularly its sensitive nature concerning national security issues, the Commission may have to record the statements of the president, the COAS and DG ISI. Besides recording statements of Ambassador Haqqani and Mansoor Ijaz, it might consider posing questions to President Zardari pertaining to his article published on May 2, 2011, about the OBL/Abbottabad episode.

The Commission could also, if it considers necessary, examine the foreign secretary and question him about Foreign Office’s official statement of May 2, 2011, followed by a totally contradictory and different official statement issued on May 3, 2011, as well as the sources which prompted these statements.

The Commission could also direct Pakistan’s High Commissioner Wajid Shamsul Hassan to appear and clarify his statement about prior knowledge of Abbottabad episode before its taking place. The provincial authorities have been directed to extend necessary and unflinching support and obedience to this Commission. Ambassador Haqqani has been directed to continue to be on the ECL and remain available for any assistance to the Commission, which has to conclude its investigation in four weeks.

Traditionally, issues pertaining to the national security and those concerning relations with foreign governments are generally excluded from the scrutiny by courts of law. It is, however, a welcome development in our constitutional jurisprudence that rather than claiming immunity from the Supreme Court’s indulgence in the matter our chief spy and chief of the Army staff submitted willingly and voluntarily before the apex court and assured it of their willingness in letter and spirit to produce evidence during this inquiry.

This development also belies the claim that the system has been thrown back to the military’s hegemony once again. One of the petitioners, Mian Nawaz Sharif suffered blatant criticism for “friendly opposition” for three and a half years but did not support any extra-constitutional change even as an interim measure. The Supreme Court had previously “overcommitted” itself with constitutionalism and in the wake of scores of cases of loot and plunder of the assets of national institutions and despite taking serious note of such episodes stopped short of dealing any fatal blow to the status quo or of derailing the democratic set-up. Rather, than taking a proactive role in all such cases, it enabled Parliament, politicians and political parties to move into the vacuum and to play their due roles. However, the tides have now changed when the question of the country’s sovereignty and its national security with its possession of nuclear capability was raised by the leader of the 2nd largest party, along with other leadership and some members of the legal fraternity and civil society, the Supreme Court could not shut its doors to have this crucial issue probed by a very highly placed panel of three of the five chief justices of the high courts.

There could be no other better or equally competent fact-finding Commission for this most crucial issue to the country’s sovereignty and survival but to reach the truth of the matter.

So far no one from the petitioner’s side has started the blame game, and the only demand was to have the issue inquired into under the Supreme Court’s constitutional powers conferred on it by Article 184(3) read with the Supreme Court’s Rules, Order 32(9) and Order 33 empowering it to constitute a Commission reporting its finding only to the Supreme Court for further action in accordance with law and the Constitution.

One should hope for the constitutional running of the country that those in power also make a serious endeavour to ensure production of relevant evidence before the prestigious Commission constituted by the court and stop their unending and unnecessary propaganda campaign against a State organ which has, till date, protected their almost four years of misrule and misgovernance replete with unprecedented scandals of loot and plunder of the national wealth. One also expects the Commission to complete their task within the time assigned to it and to submit its report to the Supreme Court for taking further action in view of the findings and conclusion therein.

—The writer is a Senior Advocate of the Supreme Court of Pakistan.