ISPR Rejects Human Rights Watch Report

Human Rights Watch (HRW) Report on
Judicial Commission on Saleem Shehzad Murder Case Not Correct

A spokesman of ISPR said that the press release issued by HRW New York on January 30th, 2012 has been found to be extremely derogatory, biased and contradictory in terms. In one stroke Mr Brad Adams has discredited the Judicial Commission that investigated Saleem Shehzad’s alleged murder, demonized the ISI and castigated the Government of Pakistan, going on to suggest a darker destination of evidence if pursued again. It is unclear where Mr Adams forms opinions like these from but one thing is evident that his thought process and ability to logically analyze a given situation suffers from serious bias.
The spokesman added that the Judicial Commission in question was headed by a very honourable Judge of the same Supreme Court of Pakistan which is highly respected for its integrity and courage of conviction. It is not without reason that the Supreme Court of Pakistan is the guarantor of the rule of law and the architect of constitutional future of our country. To expect the Judicial Commission probing Saleem Shehzad’s alleged murder headed by Honourable Justice Saqib Nisar, to spare or shy away form the so called ‘culpable ISI’ is not only disrespectful but also out of character of the Honourable Court. HRW should visit the Supreme Court website to see what kind of historic and hitherto unheard of court actions have been initiated by the apex court regarding ISI / intelligence agencies and the unprecedented obedience / compliance they have readily commanded.
Spokesman further said that Brad Adams may have his head buried deep in sand and HRW may be choking under heaps of bias but it is quite apparent that such diatribe is exceptionally disparaging despite an ‘ extensive examination

Filed under: CURRENT AFFAIRS

Aliabad: On August 11, the two IDPs were shot dead while several others were injured All FIRs against protesters should be withdrawn, Judicial Commission had recommended  Monitoring Desk Gilgit, January 9: Senior Journalist Manzar Shigri has reported the GB Law Minister, Wazir Shakil, as saying that the judicial commission formed to investigate the killing of [...]

Constitution of Pakistan has been amended seventeen times since its promulgation in 1973; however the ninth and eleventh amendment bills were not passed. The importance of legislation is incontestable; it is the prerogative of parliament to set the rules of business but does it make any difference for a commoner either President has more power or Prime Minister. What matters for him is good governance, availability of basic needs with in affordable price. 

Below are all amendments in a summarized form 1974 onwards…

First Amendment May 04, 1974

• Article 1 – Amendment revised units, provinces and territories of the federation
  
• Article 17 – Amendment allowed citizens other than those in service of Pakistan to form political party and every political party to account for the source of its funds by law.
  

This amendment had become necessary as East Pakistan had emerged as a new independent state “Bangladesh” and Pakistan had officially recognized it.

Second Amendment September 17, 1974

• Article 106 – Quadiani group or the Lahori group (who call themselves ‘Ahmadis’)” was declared minorities.
  
• Article 260 – the definition of a Muslim was made part of constitution which is, ” A person who does not believe in the absolute and unqualified finality of The Prophet hood of MUHAMMAD (Peace be upon him), the last of the Prophets or claims to be a Prophet, in any sense of the word or of any description whatsoever, after MUHAMMAD (Peace be upon him), or recognizes such a claimant as a Prophet or religious reformer, is not a Muslim for the purposes of the Constitution or law.”
  

Third Amendment February 13, 1975

• Article 10, 232 – the amendment addressed the issues of preventative custody by curtailing the rights of detainee and by conferring more powers for detaining authority.
  

Fourth Amendment November 21, 1975

• Articles 8, 17, 19, 51, 54, 106, 199, 271, 272, 273, First schedule and Fourth Schedule. The amendment added 6 reserved seats in National Assembly, curtailed the powers of High Courts for cases related to preventative detainment, Land reforms, economic reforms and several regulations promulgated by President prior to Constitution were made part of constitution.
  

Fifth Amendment September 16, 1976

• Articles 101, 160, 175, 179, 180, 187, 192, 195, 196, 199, 200, 204, 206, 212, 260, 280 and First Schedule. The amendment established the rules for appointment of Governors, Chief Justices and the discretionary powers of the High Courts and Supreme Courts, abolished joint High Court of Sind and Baluchistan, constituted separate high court for each province.
  

Sixth Amendment December 13, 1976

• Articles 179, 195, 246, 260 – The Amendment extended the appointment of the Chief Justices of Supreme Courts and High Courts beyond their retirement age limit for when they have not completed the term of office.
  

Seventh Amendment May 16, 1977

• Articles 101, 245 – New Article 96 A inserted which was supposed to stay in force till September 30, 1977 Amendment suggested to hold a referendum to seek vote of confidence for the Prime Minister by General Public.
  

Eighth Amendment November 9, 1985

• Articles 48, 51, 56, 58, 59, 60, 75, 91, 101, 105, 106, 112, 116, 130, 144, 152 A, 270 A and addition of new Schedule, the Sixth Schedule, The constitution restored to the position of July 5, 1977 with amendment which conferred the powers upon the President to nominate Prime Minister, appointing the services chiefs, other key state positions and dissolve the National Assembly and Governors could dissolve provincial assemblies.
  

Ninth Amendment Bill 1985 (It was not passed and still remains a bill)

• In consonance with the provisions of Article 2 and 227 of the Constitution of the Islamic Republic of Pakistan, which respectively offer that Islam shall be the State religion of Pakistan and that all laws shall be brought in conformity with the Injunctions of Islam, as also the Objectives Resolution, this Bill seeks to amend Articles 2, 203B and 203D of the Constitution so as to provide that the Injunctions of Islam shall be the supreme law and source of guidance for legislation and policy making and to empower the Federal Shariat Court to make recommendations for bringing the fiscal laws and laws relating to the levy and collection of taxes in conformity with the said injunctions.
  

Tenth Amendment March 25, 1987

• Articles 54 and 61 Amendment curtailed the working days of National Assembly and the Senate from 160 to 130 per year.
  

Eleventh Amendment Bill 1989 (It was withdrawn by the movers.)

• Article 51 the amendment bill was moved in Senate suggesting the restoration of 20 Women Seats in the National Assembly. It was withdrawn by the movers after government assurance.
  

Twelfth Amendment July 28, 1991

• New Article inserted: 212 B Provisions amended: Fifth Schedule. Amendment allowed constitution of special courts for heinous crimes as well as increase the salaries of Judges.
  

Thirteenth Amendment April 3, 1997

• Article 58, 101, 112, 243 – Amendment was to withdraw Eighth Amendment powers of the President and Governors to dissolve National and Provincial assemblies, the Prime Minister was conferred the powers to appoint Services Chiefs and other key position.
  

Fourteenth Amendment July 3, 1997

• New Article inserted 63A Amendment to provide disqualification of a member of Parliamentary party on the ground of defection, floor crossing, abstaining or refraining from vote or voting against the party policy.
  

Fifteenth Amendment August 28, 1998

• Insertion of Article 2B in view of the fact that the Objectives Resolution is now substantive part of the Constitution, it is necessary that Quran and Sunnah are declared to be the supreme law of Pakistan, and the Government is empowered to take necessary steps to enforce Shariah.

Sixteenth Amendment August 5, 1999

• Insertion of Article 27 which safeguards against discrimination in services, Quota system was extended till 2013.
  

Seventeenth Amendment August 21, 2002

• New Article Inserted 41, 58, 112, 152A, 179, 195, 243, 268 and 270AA Amendments were made to the constitution for the approval of Gen. Musharraf to stay President in uniform, his coup on October 12, 1999 and inclusion of the Legal Framework Order (LFO) into the constitution which empowered President again.
  

Eighteenth Amendment April 19, 2010

• Articles amended or substituted 1, 6, 17, 25, 27, 29, 38, 41, 46, 48, 51, 58, 59, 61, 62, 63, 63A, 71, 73, 75, 89, 90, 91, 92, 99, 100, 101, 102, 104, 105, 106, 112, 116, 122, 127, 128, 129, 130, 131, 132, 139, 140, 142, 143, 144, 147, 149, 154, 155, 156, 157, 160, 161, 167, 168, 170, 171, 172, 175, 177, 193, 194, 198, 199, 200, 203, 203D, 209, 213, 215, 216, 218, 219, 221, 224, 226,228, 232, 233, 234, 242, 243, 260, 268, 270A, 270AA, 270B
  
• Articles inserted 10A, 19A, 25A, 140A, 175A, 267A, 267B, 270BB
  
• Articles omitted 71 and Omission of sixth and seventh schedule
  
• Summary: Parliament declared the 17th Amendment to the Constitution and the Legal Framework Order (LFO) given by a dictator as without any legal authority. NWFP renamed as ‘Khyber Pakhtoonkhwa’. Good Governance by restricting the size of the Cabinet in to 11 per cent of the members of Parliament and respective Provinces. Four seats, one from each province, to be allocated in the Senate for the minorities to increase their strength. Education to each child up to the age of 16 years made compulsory. Formation of the council of common interests revised with prime minister as its chairman. The council should meet at least once in 90 days besides abolition of the Concurrent List. Prime Minister shall keep the president informed on all matters of internal and foreign policy and on all legislative proposals the federal government intends to bring before the Majlis-e-Shoora (parliament). President could use the power of dissolution of the National Assembly when a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly, in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly for the purpose. For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. Under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an act of Majlis-e-Shoora (parliament). Restriction imposed on the attorney general for doing private practice. Inexpensive and expeditious justice should be ensured to the people as also the right of access to information without any hurdle. The prime minister shall, in consultation with the leader of the opposition in the National Assembly, forward three names for appointment of the Chief Election Commissioner to a parliamentary committee for hearing and confirmation of any one person. The parliamentary committee, to be constituted by the speaker, shall comprise 50 per cent from the opposition parties, based on their strength in Parliament to be nominated by the respective parliamentary leaders. In case there is no consensus between the prime minister and the leader of the opposition, each shall forward separate lists to the parliamentary committee for consideration, which may confirm one name. The total strength of the parliamentary committee shall not exceed 12 members out of which one-third shall be from the Senate. Provided that when the National Assembly is dissolved and a vacancy occurs in the office of the chief election commissioner, the parliamentary committee shall comprise the members of the Senate only. There shall be no restriction on the number of terms for the offices of the prime minister and chief ministers. Prime minister would advise the president on appointment of the chairman of the chiefs of staff committee and chiefs of three armed forces. The Senate shall consist of 104 instead of 100 members with the addition of one minority member from each province. Working days of the Senate have been increased from 90 to 110. Restriction on a person who has been dismissed from the service of Pakistan, service of a corporation or office set up or controlled by the federal government or the provincial government on ground of misconduct has been lifted. According to this amendment, a person could be elected as MP, three or five years after dismissal from the service. A person shall be disqualified from being elected or chosen as, and from being, a member of parliament if he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled, by the federal government, the provincial government or a local government on ground of misconduct, unless a period of five years since his removal or dismissal; or unless a period of three years has elapsed since his removal or compulsory retirement. The restriction on a person being elected as member of parliament, who has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or integrity or independence of the judiciary of Pakistan, or which defames or bring into ridicule the judiciary or the armed forces of Pakistan, unless a period of five years has elapsed since his release. Chairman of the Federal Public Service Commission would be appointed by the president on the advice of the prime minister. Similarly, chairmen of the provincial public service commissions would be appointed by the governors on the advice of chief ministers. Proclamation of emergency in the province due to internal disturbances would require a resolution from the provincial assembly. If the president acts on his own, the proclamation of emergency shall be placed before both houses of parliament for approval by each house within 10 days. On dissolution of the assembly or completion of its term, or in case it is dissolved under Article 58 or Article 112, a caretaker shall be selected by the president in consultation with the prime minister and the leader of the opposition in the outgoing National Assembly. Similarly, a caretaker chief minister will be appointed in consultation with the chief minister and the leader of the opposition in the outgoing provincial assembly. Proclamation of emergency of the fourteenth day of October, 1999, the Provisional Constitution Order (PCO) No 1, the Oath of Office (Judges) Order, 2000, Chief Executive Order No 12 of 2002, Chief Executive Order No 19 of 2002, the amendments made in the Constitution through LFO, 2002, (Chief Executive Order No 24), the LFO (Amendment) Order, 2002, Chief Executive’s Order No 29 of 2002) and the LFO (Second Amendment) Order, 2002 (Chief Executive Order No 32 of 2002), notwithstanding any judgment of any court, including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect. Judges of the Supreme Court, High Courts and Federal Shariat Court who were continuing to hold the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order 2000, shall be deemed to continue to hold the office as judge or appointed as such as the case may be, under the Constitution and such continuance or appointment, shall have effect accordingly. Appointment of judges to the Supreme Court, there shall be a judicial commission. For appointment of judges of the Supreme Court, the commission, headed by the chief justice of Pakistan, shall also consist of two most senior judges of the apex court, a former chief justice or a former judge of the Supreme Court to be appointed by the chief justice in consultation with two member judges for a period of two years, federal minister for law and justice, Attorney General for Pakistan, and a senior advocate of the Supreme Court of Pakistan to be nominated by the Pakistan Bar Council for a period of two years. The judicial commission for the appointment of High Court judge, headed by the chief justice of the High Court, would also include two most senior judges of the High Court, provincial law minister, a senior advocate to be nominated by the provincial bar council. For appointment of judges of the Federal Shariat Court, the judicial commission shall also include the chief justice of the Shariat Court and the most senior judge of that court as its members. Article 58-2(b) should be repealed and substituted with “Dissolution of the National Assembly”. The substitution clause says that the president shall dissolve the National Assembly if so advised by the prime minister, and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the prime minister has so advised. Notwithstanding anything contained in Clause 2 of Article 48, the president may also dissolve the National Assembly in his discretion where, a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly in accordance with the provision of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose. Passing of the bills: Recommended substitution in Article 70 with “introduction of passing of bills”, adding that a bill with respect to any matter in the Federal Legislative List may originate in either house and shall, if it is passed by the house in which it originated, be transmitted to the other house and if the bill is passed without amendment by the other house also, it shall be presented to the president for assent. Bills presented in the house but not passed within 90 days of lying in the House shall be considered in a joint sitting of parliament. Islamabad High Court established and the judges of the Islamabad High Court should be taken from the federal capital and four provinces.
  

Nineteenth Amendment January 1, 2011

• Articles 81, 175, 175A, 182, 213, 246 – Amendment introduced a new system for appointments in the superior courts; the amendment also raised the number of senior judges as members of the Judicial Commission to four. Under the amendment, recommendations for the appointments of ad hoc judges in the superior courts will be made by the Chief Justice of Pakistan in consultation with the Judicial Commission. Moreover, in case of the National Assembly’s dissolution, members of the parliamentary committee will be from the Senate only.
  

By Zaheerul Hassan

Role of intelligentsia has never been negated in any type of war. During World Wars (WW) I & II, the allies remained successful in number of operations because of timely receipts of information and clandestine operations. However, after WW-II U.S launched agency CIA against KGB. During Cold War period both the agencies remained dagger drawn against each other. Anyhow, Pakistan felt a threat on it western frontiers once in 1979, Soviet Union invaded Afghanistan. At that time U.S and Pakistan came closer to each other despite differences over the development of our nuclear programme. The coincidence of interests also forced ISI and CIA to operate jointly against Soviet Union. Thus, CIA in collaboration with ISI have activated against KGB and finally able to defeat and disintegrate Great Soviet Union.

But just after the disintegration of Great Russian Empire, CIA has shaken hands with a new ally agency i.e. RAW. Change of ally was obvious since Pakistan can never be party to U.S. against China. CIA in collaboration with RAW and MI-6 again accelerated her campaign against nuclear programme and started overtly and covertly. At this occasion ISI unfolded the foreign conspiracy and security of the country.

The role of major intelligence agencies in international relations, threats are often addressed within the context of security studies — especially those focusing on nuclear deterrence, alliance formation and interstate conflict. In general, a threat perception is “understood as anticipation on the part of an observer (the decision maker) of impending harm – usually of a military, strategic or economic kind – to the state”. Thus, in international relations we talk about threats aimed at the territorial integrity, political sovereignty, major national interests and core ideology of the state and its regime. The truth of this quoted statement has been proved once Al-Qaida launched attack in U.S. on 9/11.

Pakistan was forced to become ally after 9/11 in Mushraf’s regime. Since then Pakistan has faced in fact two types of threat, e.g. external and internal. Foreign sponsored ethnicity, sectarianism and economic instability emerged as fundamental variables of internal security threats which gave birth to local Taliban and exploited by external forces. Religious extremism has created an unenviable image of Pakistan in the eyes of rest of the world and has affected the country adversely. CIA penetrated foreign agents along with sophisticated weaponry, suicide attacks and target killings have become everyday occurrence in the country. Indian intelligence agency RAW of under the garb of development programmes has established 13 consulates’ along the western border. It was ISI and country’s security agencies which came out to fight back the foreign sponsored covert and overt agenda against sole Islamic nuclear power.

It may be mentioned here that Pakistan security forces and ISI defeated foreign sponsored war on terror in FATA and Swat which was appreciated by the nation too. RAW, CIA, RAAM (of Afghanistan) and Mossad from 2005 onwards tried their best to destabilize Pakistan. Weapons like Kalashnikovs, MI-4 American rifles, Israeli sniper rifles, 12.7mm, 14.5mm and 107mm guns, mortars, pistols, RPG-7s, grenades, explosives, equipment like, remote control sets, jamming devices, sophisticated telephone and wireless sets, bullet proof and suicide jackets, kits, and currency of different countries have been provided to the militants. Terrorist have been sent to Pakistan through Indian training camps located at Afghanistan.

Almost four divisions of force have been involved in elimination of militancy in FATA and Swat area. Pakistan Army also managed to take care of her eastern border too. The forces came all out to undertake Operation Rah-e-Rast and her soldiers set the gallant examples while clearing Swat, Dir, Buner, Kanjoo, Shangla and other areas.

General Kayani and his team has displayed excellent professional capabilities, ISI unveiled the foreign agenda and fully supported security forces in eradication of terrorists. In this regards over 5000 civilians and 3000 troops including officers and men have laid down their lives. It also includes the martyring of over 78 intelligence officials while fighting in global war against terrorism. While addressing in-camera session General Pasha very loudly mentioned that 112 check posts of the allied forces as opposed to the 812 of the Pakistani forces. 2.8 million Individuals of Swat and surrounding area became IDPs. Pasha while addressing also maintained parliament that the actions of the United States were not expected from an ally in war against terrorism. He said that there is difference between India and the United States.
From 2007 till today, American and western media is alleging ISI for supporting Haqqani group against American forces in Afghanistan. In this connection, American, Western and Indian media has criticized ISI, instead of suggesting Afghan government to fence the border and carrying out negotiations with the true representatives of Afghan nation.

Notably, American military and civilian leadership has started irrational demand of restructuring ISI when Lt. Gen. Ahmed Shuja Pasha took over the agency as Director General in September, 2008. ISI chief instead of acting upon Assistant Secretary of State, Richard Boucher demand of forming and restructuring.The agency has took interest to improve upon the efficiency of the organization in the light of national interest. On rejecting the false and baseless allegations, US top officials intensified blame game again aftermath Osama’s death in a unilateral action of 2nd May 2011. Thus, relations between two capitals and their agencies went to its lowest level Pakistan. CIA intentionally did not involve Pakistan and her supreme intelligence agency in killing Osama, despite receiving information regarding a call made by someone from Osma’s Compound located in Abbottabad. It was ISI that first time interrupted and passed on information to the CIA for evaluation anyhow CIA mistrust over ISI, created vast distance between two agencies.

However, during a meeting with the CIA Director Michael Morell in July, 2011, it was Lt. Gen. Shuja Pasha who categorically told that we will continue anti-terror and intelligence sharing cooperation between the two agencies but would never tolerate a private ‘network’ the CIA is secretly maintaining in Pakistan. ISI under the leadership of Gen Pasha very successfully exposed the American and Indian intelligence agencies activities in Kashmir,FATA and Balochistan. The local CIA Chief Jonathan Banks has been forced to leave his station after Pakistani Intelligence services exposed his identity. It was U.S embassy that where CIA started recruiting Pakistani nationals who were vulnerable and could work on their payroll. In this context, with the pre-information of ISI, Pakistan’s police and other security agencies arrested a number of agents. For instance, on September 19, 2009, police raided the Inter-Risk, a private security company in Islamabad, and arrested its two employees, namely Tauqeer and Muhammad Khan, possessing unlicensed shotguns, handguns and ammunition. On the other side, US embassy spokesperson Richard Snelsire pretended, “The US contract with the Inter-Risk is to provide security at the embassy and consulates. Moreover, U.S ambassador address to Balochistan Jerga in 2011 Quetta has also a great concern for responsible circle of Pakistan. In memo gate issue ISI again played very vital role to expose another CIA plan against Pakistan sovereignty which is under investigation at the right forum Judicial Commission structured by Supreme Court of Pakistan .

Concluding, I say that invisible warriors of ISI under the leadership of Lt General Ahmed Shuja Pasha with very meager resources have successfully proved their superiority while defeating CIA and her sister agencies RAW and Mossad. U.S. has been forced to resolve Afghan issue as suggested by Pakistan and its intelligence Agency. In short, Intelligence organizations are not a fighting machines in its conventional sense but no army can fight without the support of an efficient Intelligence Organizations, collect, collate and disseminate information in a most efficient and reliable manner that is the key to the success of any war or battle. The job of a good organization is not only to collect information but through its mechanism, it denies or feeds false information to the enemy to achieve its goals.

The writer can be approached through zameer36@gmail.com

What is ‘Memogate’? The ‘memo’ in question is a letter allegedly written at the behest of Pakistan’s President by the Ambassador to Washington Husain Haqqani, asking USA to prevent a possible military coup in Pakistan after US Navy Seals killed Osama bin Laden in Abbottabad, Pakistan on May 2, 2011. Haqqani denied the allegations, sent in a letter offering to resign in order to facilitate an impartial inquiry, and returned to Pakistan to clear his name. Instead, he found his resignation letter accepted. The Supreme Court barred his exit from Pakistan. He has been forced for his own safety to confine himself first to the Presidency and then to the Prime Minister House. On Dec 30, 2011, The Supreme Court in response to a petition against the ‘memo’ formed a three-member judicial commission to look into the matter that the media has dubbed as ‘memogate’.

Asma Jahangir, counsel for Husain Haqqani and former Supreme Court Bar Association President, has refused to appear before the commission saying that she does not trust the judiciary. She has said that instead of forming a commission to create or produce new evidence the Supreme Court should have looked into the evidence placed before it to decide whether there was a prima facie case and whether the court could proceed to enforce any fundamental rights by making a binding order.

The entire affair appears to be geared towards undermining the democratic political process in Pakistan – specifically at targeting President Asif Ali Zardari, using Husain Haqqani as a vehicle. Asma Jahangir has unequivocally termed the Supreme Court’s judgment as a victory for the military that has run affairs in Pakistan for decades and is obviously still all-powerful behind the scenes.

Asma Jahangir has argued that the Supreme Court had no right to bar Haqqani’s travel abroad. Nor does Supreme Court or the judicial commission set up, have the right to demand Blackberry (RIM) data without due process of law. No server (BU or RIM) should share data with Commission, which is essentially pursuing a political dispute, not criminal charges. The judiciary seems to be ruling on the basis of national security ideology instead of constitution and law.

In the first place, the Supreme Court was not competent in the first place to uphold the petition as maintainable, given that no fundamental right had been violated as a result of the memo and its alleged conspiracy. Secondly, the memo had in any case failed to achieve its alleged aim – according to its recipient (then Chairman of the Joint Chiefs of Staff U.S. Admiral Mike Mullen) as well as the Pakistan Army Chief.

“Article 184(3) empowers the Supreme Court to make an order in matters of public importance guaranteed in Chapter I of Part II of the Constitution in which violation of any fundamental rights has taken place. In this case, no violation of fundamental rights has taken place, a most essential question, without an answer to which the court should not have proceeded to make an order of this nature,” comments advocate Asad Jamal in his informative article of Dec 4, 2011 (Deconstructing the SC order on the memo).

The existing evidence is not sufficient to determine whether there was some conspiracy or threat to the security or sovereignty of Pakistan. The evidence placed before the court by the DG ISI and Mansoor Ijaz shows that there was no conspiracy or threat to the security or sovereignty of Pakistan.

In fact there are several contradictions in Mansoor Ijaz’s claim. For one thing, his email dated 10 May, 2011 (annexed with Mansoor Ijaz’s affidavit before the SC) addressed to Gen (Retd.) James Jones, former US national security adviser who handed the ‘memo’ to Admiral Mullen, states that the so-called memorandum had been prepared by three persons. Moreover, Gen. Jones in his affidavit has said that Mansoor Ijaz never mentioned Husain Haqqani’s name in his communication with him, implying that Husain Haqqani was never involved in drafting it or in asking for its delivery to Mike Mullen.

The court says it will not go into the facts of the case, but is clearly influenced by the DG ISI’s statement that he went and met Mansoor Ijaz on October 22, 2011, examined his evidence and believed that what he was told was correct. If the DG ISI has evidence about the case, given that he went all the way to London to meet Pakistan origin US citizen Mansoor Ijaz, why has he not presented it in the court to facilitate the evidence collection?

Mansoor Ijaz’s Blackberry messages (BBMs) contain nothing from Husain Haqqani about the supposed memo.  Going by the transcript, assuming it is genuine, it was Mansoor Ijaz who offered to fly down to meet Husain Haqqani in 90 minutes – it was not Haqqani who invited him. There are other obvious problems with the existing evidence, including discrepancies in the BBM transcript attached with Mansoor Ijaz’s reply and that published in The News. Then, Mansoor Ijaz in his covering email to Gen (Retd.) James Jones, former US national security adviser who handed the ‘memo’ to Admiral Mullen, writes that the attached ‘memo’ was drafted by three ex-officers related to national security. Gen. Jones in his affidavit testified that Mansoor Ijaz never mentioned Husain Haqqani.

“Article 184 (3) is not an automatic trigger that gets pulled with the filing of a petition; a petitioner has to make out a proper case,” notes advocate Jamal. “When there is no violation, what fundamental right will the SC maintain? The commission appointed by the SC is to conduct an inquiry but its findings will not be binding on any court of law, the government or the Parliament. So what fundamental rights will be enforced?”

The argument so far was restricted to the maintainability of petitions but by appointing a commission, the court went a step further, granting the entire relief (and more) in one go without hearing the arguments, or discussing the commission’s terms of reference. Then, after assuming that the memorandum’s “issuance, prima facie, seems to be established”, the court suggested that the offence (the nature of which is yet to be determined) may invoke Article 6 of the Constitution, i.e. the offence of treason, notes Jamal.

He points out that: “The petitioners have, intriguingly, arrayed the President of Pakistan as a respondent, to which no objection was raised by the Court.” This lends credence to the widespread perception that the real target in this case is the President – an allegation that Asma Jahangir also levelled in her interview with Matiullah Jan of DawnNews TV, Dec .31, 2011.

Many lawyers privately agree with this view but balk at expressing their opinions publicly, afraid of antagonising the courts on which they depend for their living. “They have to plead before these same courts for relief for their clients,” says Asad Jamal. “No one wants to risk getting their backs up.”

The court’s attitude to Asma Jahangir was downright hostile, he observes. “She stood for three hours before they let her speak, and she barely said a few words when they cut in, they basically didn’t let her speak”.

Regarding Asma Jahangir’s refusal to appear before the Commission, Asad Jamal notes that for one thing, she had expressed her distrust of the Commission, and secondly, its proceedings are expected along the lines of a criminal case, which is not her area of expertise.

Last but not least, it is a matter of grave concern that Husain Haqqani, his lawyer Asma Jahangir, the columnist Marvi Sirmed and others who have taken a stand in this issue that counters the view propagated by the security establishment, find themselves at serious risk in Pakistan.They regularly receive threats to their lives. A highly dangerous situation in the current climate in Pakistan, where rule of law leaves much to be desired.

(ends)

Former Pakistan ambassador Husain Haqqani’s counsel Asma Jahangir sounds a sombre warning about the danger Haqqani is in from the military and intelligence agencies that are capable of picking him up and ‘twisting his limbs’ to make him say what they want to hear. Talking to Dawn TV’s Matiullah Jan in a detailed interview of Jan 1, 2012 she says that she took up the case because she found it a travesty that an individual was being condemned on the basis of a media trial without due process or representation. However, she will not represent him before the Judicial Commission that has been formed as she does not trust the process. The interview, posted in six parts (about 5-6 min each), is worth listening to in full as she makes some crucial points about the significance of this judgement to Pakistan’s politics. She sums some of these points up in this earlier brief interview with Al Jazeera English:

“It’s is a very disappointing judgement, because the Supreme Court has actually said it is people’s fundamental right to come set up a commission against anyone that they accuse. So once a commission is set up and if Mr Haqqani is aggrieved by that something the Commission has done, there’s nowhere he can go; his due process has been taken away. But more than that it has restricted fundamental rights to national security. It’s a big blow to those who believe in the democratic process and in the protection of fundamental rights”.

The issue as she said, was not about one individual, Husain Haqqani. “The point of the case is to go right up to the government. So this is basically (about the) civil military relationship in which sadly the courts have more or less shifted their weight with the establishment.”

In Pakistan, the military is still in power, there has been no transfer of power, she said. “They have been able to use one of the opponents of the government to go to court and take this petition under the guise of fundamental rights.” So our fundamental rights “are now subservient to national security. When there’s a tussle between what the civilian government says and what the military says, which are two different things, there has to be a showdown and where will that take us?”

Asked what the course of action should have been, she pointed out that there was already a parliamentary commission looking into ‘Memogate’. And secondly “there are laws in this country under which they could have got an investigation”. Instead, they moved to the highest court as the first instance, taking Mr Haqqani “out of the queue and denying due process”.

In her Dawn News interview later, elaborating, she says she expected the judges to uphold the Constitution and fundamental rights, rather than undermining them in the guise of ‘national security’.

“I don’t have great expectations from the judges, they seem to have expectations of themselves,” she said. “I’ve argued in court, because this is such a politicised matter, let the politicians settle it. Secondly, if we want to further democratic norms and traditions, we need to support the power of the people” rather than the power of the establishment. It is this that will provide the state its true security.

“That’s not the job of the SC. Their job is to support us, the citizens. Judges are subservient to the Constitution. This is a crucial and critical point. They should not make an issue out of national security. There can be many interpretations of national security.”

To Matiullah Jan’s question about the issue of national security, given Pakistan’s status as a “Muslim nation with nuclear weapons”, she replied: “You can’t compromise on fundamental rights, you can’t compromise on people’s rights. Secondly, there was no danger to national security.”

About Mansoor Ijaz, she said, that the DG ISI went to him and said that prima facie this is a case. Someone who has been writing articles against Pakistan for some years, DG ISI never went to him before. He is “a man who is a US citizen, who says his loyalty is to United States, someone who has written many articles against Pakistan, including one that I didn’t read out in court out of respect, in which he’d written that the Chief Justice is indebted to Nawaz Sharif. You’re accepting his credibility, not giving credibility to your ambassador to US. You’re informing the civilian government after you’ve already conspired against them. There are so many holes in the BBM memos that we’ve pointed out, but the CJ can’t see those holes?”

In essence, the army leadership has prevailed over society and institutions. This is a victory for them. There have been many petitions before SC earlier but “this is the first time that that notice was sent to them and they went running.”

Asked what proof there was that the petition was sponsored by the military, she said for one thing, they are never in such a hurry to reply, secondly, they didn’t go through Attorney General, and thirdly, it’s “clear that the federation is giving one answer, they’re giving another”.
Could this have happened if the government wasn’t weak, asks Jan.

“Yes, the government is weak. We wouldn’t have seen this day if it wasn’t. It doesn’t matter which government it is, what matters is whether the army is going to retain its influence on politics in Pakistan. They’ve exposed themselves. They’ve exposed the fact that the DG ISI was carrying out an investigation against the Prime Minister.”

She said she had asked Husain Haqqani to get another lawyer for the Commission, as it was too much for her blood pressure.
“As a professional lawyer, shouldn’t you be able to fight this case also?” asks Jan.

“It’s not about losing a case. We lose 3-4 cases every month,” she replied. “This has been a struggle I’ve been involved in (restoration of judiciary and democracy). There was a hope, but I don’t see that being fulfilled. It’s not personal, it’s not about this government or another. There are much bigger issues at stake.”

The basic issue, she stressed, is the civil-military relationship. The judgement has been a setback to the struggle for democracy and due process. The struggle, as Asma Jahangir said, will continue.