Supreme Court urged to suspend December 30 order, halt commission's proceedings: Haqqani files review petition

Former Pakistan Ambassador to a US Husain Haqqani on Monday filed a review petition in the Supreme Court (SC) with a plea to suspend the apex court order of December 30, 2011, on Memo case. He also urged the court to halt the proceedings of Judicial Commission till the disposal of his petition.
PML-N Chief Nawaz Sharif and others, including Tariq Asad advocate and Barrister Zafar of Wattan Party, had filed identical petitions under 184 (3) in the SC on a memorandum purportedly written to Admiral Mike Mullen on the alleged instructions of Pakistan's former ambassador to the US.
Asma Jahangir, counsel for Haqqani, filed an application under Article 187 of the Constitution, seeking the suspension of the apex court's December 30 order passed in the Memogate scandal. The petitioner prayed, "The pending disposal of the civil review petition the proceedings before the Commission formed under the SC order may graciously be stayed," adding that "the applicant will suffer irreparable harm if the commission reaches a conclusion during the pendency of the petition before the apex court."
"The applicant has a prima facie case and balance of convenience also lies in his favour," according to the petitioner. The Court heard petitions on the question of maintainability, whereas December 30, 2011 order exhausted the entire relief sought by the petitioners in every respect, according to the review petition.
The petitioner has argued that the constitution of Inquiry Commission by the Court is not permissible by law as, "Direction cannot be issued to the judges of the High Court to constitute a commission". According to the petitioner, under the CPC Order 26 rule sub rule 2 a Commission set up to examine any person or evidence may be deputed to any court except 'not being a High Court.'
High courts are not subordinate to the Supreme Court and thus no direction can be issued to them. Article 187 of the Constitution remains subject to Article 175(2) of the Constitution and thus this court cannot direct the High Courts, she added. The petitioner has further contended that the SC has 'most respectfully' made an error by applying the principles of Civil Procedure Code to a probe that, on the face of it, is of a criminal nature, thus denying the applicant his fundamental right under Article 13 and 10A of the Constitution.
The appointment or constitution of the Commission by the Court has been exercised through the authority granted to the Court under Article 187 of the Constitution read with order XXX1, rule 1 and 2 as well as order XXXVI of the Supreme Court Rules, 1980 as announced in the judgement of 30th December, 2011, while Order XXXVI of the Supreme Court has been repealed in 2003.
According to the petitioner, Article 2A of the Constitution cannot override the provisions of the fundamental rights given in Chapter 1 Part-II of the Constitution, and only fundamental rights given in Chapter 1 Part-II can be invoked under Article 184(3) of the Constitution.
The fundamental rights of the applicant under Article 9 and 15 have been denied whereas the applicant has so far not been formally accused of any offence of whatsoever nature. The petitioner has argued that the court has misread the facts that the article in Financial Times on October 10, 2011 carried the memo with it, adding that the contents of it were unknown at that point of time.
The SC, while interpreting fundamental right, has assumed its infraction and the enforcement order does not redress any such infringement. "No terms of reference have been set out determining the scope and ambit of the Judicial Commission. It is submitted that the December 30 order falls within the established criteria which justifies the filing of review petition." The petitioner prayed for permission to submit additional grounds when the Court pronounces detailed reasoning and the matter is heard.