ISLAMABAD: The Supreme Court has noted that the federal government has not taken any position in respect of events which have been pointed in the statements of Chief of Army Staff (COAS) General Ashfaq Parvez Kayani and Inter Services Intelligence (ISI) chief Lt-Gen (R) Ahmed Shuja Pasha on the outrageous memo.

The detailed judgment on the maintainability of the nine petitions on the memo released on Thursday further noted that no reply contradicting statements of Kayani and Pasha was filed except Hussain Haqqani’s lawyer Asma Jahangir submitted an affidavit, which was received from former US National Security Advisor James Logan Jones.

However, the ruling said, this affidavit has not been sent through the US Embassy or Government or to the Supreme Court Registrar.It noted that the affidavit has been contradicted by American businessman Mansoor Ijaz, copies of which have been supplied to all concerned.

“Interestingly, the Federation despite knowing all these facts had not taken position in respect of events which have been pointed in the concise statement of the Chief of Army Staff and DG ISI,” the judgment said.

It said that for sake of arguments and to be on safe side at the moment without discussing or taking into consideration the statement of Ijaz and James Jones, prima facie it is established that a memo was drafted and prepared, which was sent to Mike Mullen, who initially denied its existence but later he admitted that he received such a memo.

Reference to the statement has been made in the petition filed by Pakistan Muslim League-Nawaz (PML-N). These assertions are important to, prima facie, draw an inference that the memo episode has an impact on national security. The contents of memo, if believed to be true, prima facie, are tantamount to compromising the security, sovereignty and independence of Pakistan.

The ruling said that it is not desirable to discuss the contents of the memo, lest it should cause prejudice to either parties. In all these petitions specifically amongst the respondents, it said, no one has been sought to be held liable to take brunt of the civil liability or criminal culpability, except praying to probe into the matter and to identify those who are responsible in issuance of the derogatory memo, though they have alleged threat to life, security, dignity as well as denial of fundamental right to have complete information about the issue wherein allegedly independence, sovereignty and security of Pakistan is likely to be compromised.

The decision said that seeking no relief against any of the respondents suggests that in accordance with the provisions of Article 184(3) of the Constitution, the apex court is empowered to make a declaratory order to enforce any of the fundamental rights. Such kind of litigation falls within the category of inquisitorial proceedings and not adversarial, which is generally undertaken by the litigants against each other for determination of their respective rights in the common law countries.

It said that Asma Jahangir has also not resisted the question of probe into the memo and she made a categorical statement that as it is not a fundamental right of the petitioners to insist for inquiry according to their own choice, thus, subject to following the principle of due process of law, a probe, whether conducted by a commission appointed by the federal government under Commissions of Inquiry Act, 1956 or by the Parliamentary Committee on National Security (PCNS) to whom the job is assigned by the prime minister, or by means of the departmental inquiry against Haqqani can be held. However, she opposed the probe by a body or commission constituted by the apex court. The ruling said that subject to all just exceptions, Ijaz has shared with DG ISI evidence to prove that he had written the memo, which the latter brought into Kayani’s notice, so on and so forth.

But surprisingly, it said, in the reply submitted by Haqqani he has not mentioned about the briefing given to President Asif Ali Zardari in the presence of the army and intelligence chiefs on November 22 in Prime Minister House, nor has he stated about his resignation.

As far as the ISI chief is concerned, he has furnished complete detail/description of his meeting held by him in London with Ijaz, the decision said.

The ruling said that the attorney general stated that the PCNS on the request of petitioner Senator Ishaq Dar vide letter dated November 21, 2011 addressed to the committee chairman constituted under a joint resolution of both the Houses of Parliament has already commenced probe into the matter and its first meeting has been held on November 25, therefore, let the PCNS accomplish its assignment. As such, all the petitions being premature may be dismissed, he argued.

As far as this aspect of the case is concerned, on the first day of hearing on memogate petitions, December 1, the attorney general had advanced the same arguments and without any reservation the court had observed that it was told that the prime minister has also announced that the PCNS will probe into the matter but the court doesn’t know the PCNS mandate.

“However, we have been informed that as far as this committee is concerned, it has no constitutional backing, i.e. it has not been constituted under any provision of the Constitution. Be that as it may, if any incriminating evidence is collected by the committee both for civil and criminal action by probing into the matter, we would welcome the same. During the pendency of the proceedings, we would appreciate if the outcome of the proposed inquiry by the committee is shared with us, if possible.”