Asma questioned a meeting between the ISI chief and Pakistani-American businessman Mansoor Ijaz who had allegedly authored the controversial memo. – File Photo

ISLAMABAD: A day after Prime Minister Yousuf Raza Gilani had adopted a soft attitude towards the military leadership, the top spymaster came under intense scrutiny in the Supreme Court hearing a set of petitions in the memo case here on Tuesday.

“I called these petitions ‘benami’ (anonymous) because two of its respondents are the actual petitioners,” Advocate Asma Jehangir argued while alluding to Army Chief Gen Ashfaq Parvez Kayani and Director General of the Inter-Services Intelligence (ISI) Lt-Gen Ahmed Shuja Pasha who are named as parties in the petitions.

In her usual assertive and hard-hitting style, Ms Jehangir, the counsel for former ambassador to the US Hussain Haqqani, asked why one of the petitioners changed his mind two days after writing a letter to the Parliamentary Committee on National Security and then filing petitions in the Supreme Court.

Earlier, Attorney General Maulvi Anwarul Haq reiterated the government’s stand that the court could intervene only on the question of public importance when it also involved the breach of fundamental rights and described the controversial memorandum as a worthless piece of paper.

Jehangir questioned a meeting between the ISI chief and Pakistani-American businessman Mansoor Ijaz who had allegedly authored the controversial memo.

“Why did the spymaster investigate the matter at the back of an elected government, from where this authority came and who let him go. The ISI is not an investigating authority and if we go by their word each one of us in this courtroom is a traitor. The people of Balochistan are traitors, late Benazir Bhutto was a traitor, Wali Khan was a traitor; even one of the petitioners (Nawaz Sharif) faced the allegation of poisoning the former army chief,” the counsel said.

Referring to allegations of jeopardising and compromising the nuclear assets, Ms Jehangir emphasised that there was a misconception in the country as if the ownership of Pakistan’s strategic weapons was with the army alone. “The ownership is with the entire nation,” she stressed and recalled that it was a civilian leader who started the nuclear programme.

“If it is the property of the entire nation then each one of us has to own this, especially when there is a perception that it will likely be destroyed,” Justice Tariq Pervez said.

“But not on surmises and hypotheses,” Ms Jehangir said, adding that the sensible statement of the army chief who had admitted in his reply to the petitions that the armed forces were in great spirits and its morale had not been affected. “Then where are the cracks?” she asked.

Chief Justice Iftikhar Muhammad Chaudhry asked the counsel to read one of the paragraphs of the memorandum and referring to a news item that the government was about to sack the ISI DG said people were always cautious and took such things very seriously.

“Why should the judiciary intervene when the prime minister has the right to sack the ISI DG,” the counsel said, adding that the judiciary never moved on perceptions.

She recalled that after meeting the ISI chief Mansoor Ijaz had written an article that both President Asif Ali Zardari and Mr Haqqani knew in advance about the US raid on Osama bin Laden’s compound in Abbottabad and questioned whether the ISI DG was feeding Ijaz.

If the president knew about the American plan why he was using Ijaz, a jack in the box, when he himself could ask the top US leadership to achieve the purpose purportedly stated in the memo, she argued.

She also expressed surprise why this hullabaloo suddenly started soon after the ISI chief’s meeting with Mansoor Ijaz and a host of television shows abruptly being aired and a number of articles started appearing in newspapers.

Ms Jehangir described Mansoor Ijaz as someone who held dubious credential and was consistent in articles calling for disbanding the ISI because it knew where Osama bin Laden was hiding. The people of this country, she said, had struggled hard for decades to ensure that this institution should be independent of political interferences.

She insisted that the court should not interfere or enter into political arena, and that the authority of this court to enforce fundamental rights did not mean to put to task the ISI chief or to hurt the fundamental rights of others. The people of Pakistan helped bring the rights of judges from the streets and not through the Constitution or because of any judgments.

Through these petitions, she said, the question of public importance had been made out by vested groups, though legislators in their wisdom had closely linked the jurisdiction of the court under Article 184(3) with the enforcement of fundamental rights.

She said the pleadings to initiate a probe by this court when the prime minister had already ordered one by referring the matter to the Parliamentary Committee on National Security were not their right, especially when the choice of a forum is not their fundamental right.

When the chief justice asked the counsel to say how this court could be debarred from intervening when the same issue was with some other body, the counsel said the petitioners could prove their point only by showing some tangible evidence.

The notion of fundamental rights, she added, should not be expanded by the court by subverting the basic human rights of an individual.

Ms Jehangir deplored that the December 1 order of the court had taken away the fundamental rights of her client without giving him an opportunity to be heard. “At the moment Mr Haqqani is completely innocent till proven guilty, but his reputation has been tarnished when TV channels hold him guilty because he tendered resignation.”

Due process had been denied to her client, she said, adding that it was a settled law that this court could not supervise investigations because it would be overstepping of its jurisdiction.

Justice Tassadduq Hussain Jillani said the court was hearing the case only to decide the maintainability of the petitions and to expand its jurisdiction. “The court is not going to hold findings through a trial,” he said.

Asma Jehangir will resume her arguments on Wednesday.