As the main character in the memo scandal, Pakistani-American businessman Mansoor Ijaz, failed to appear before the judicial commission probing the controversy on Monday under the pretext of a “precarious political situation” in Pakistan, Zahid Bukhari, the counsel for former ambassador Husain Haqqani, continued with his attempts ostensibly aimed at stopping Ijaz from coming to Pakistan by asking the commission to bar Ijaz from leaving Pakistan until the completion of investigation and supporting an application that sought to register a case against the US national under Article 6 of the constitution for ‘high treason’.
Ijaz was supposed to appear before the commission on Monday but his counsel Akram Sheikh said there was political and institutional instability in the country amidst rumours of change in army command, which forced his client not to come to Pakistan. He said statements regarding registration of treason cases against Ijaz and the sacking of the defence secretary were also causes of concern for his client. “Our patience should not be put to test… when will Mansoor Ijaz appear before the commission?” the commission’s Chairman Justice Qazi Faez Isa asked. However, Sheikh sought more time and told the commission that his client would be available before the commission on the next date of hearing, January 24.
Bukhari continued throwing a spanner in the works by objecting to the scope and procedure adopted by the commission for investigation and declining to waive privacy rights of his client with Research In Motion Limited, the manufacturer of BlackBerry smartphones, coupled with the revelation made by the attorney general that the BlackBerry handsets of Husain Haqqani were not found in the US. Bukhari consumed a considerable time of the commission on the question of the procedure to be adopted for investigation.
One of the petitioners in the memo case, lawyer Tariq Asad, told the commission that Brig (r) Imtiaz and Lt General (r) Javed Ashraf Qazi would be the witnesses he wanted to produce before the commission. Bukhari filed an application to the commission pleading that Ijaz be barred from leaving Pakistan until the investigation by the commission was complete, adding that the Supreme Court had asked his client not to leave the country as well. However, Justice Isa said Haqqani was a government servant and a citizen of Pakistan, but Ijaz was neither, so it would be unfair to stop him from leaving Pakistan. He told Bukhari that if Ijaz left Pakistan before the completion of the investigation, it would benefit Haqqani.
In view of the statement made by Sheikh in which he stated that his client would be available for cross examination, the commission – with the consent of Bukhari – disposed of the application. The commission said Ijaz could leave whenever he wanted and he would be summoned again if needed. Bukhari contended that as stated by Sheikh, his client did not choose to come to Pakistan because of the precarious political situation in the country and requested to simply close the enquiry as improving the political situation was beyond the commission’s power and might take years.
However, Sheikh told the commission that his client would appear before it on January 24 and added that if Ijaz failed to appear this time, he would no longer represent him. He also requested the commission that his client did not want to share his itinerary with the media for security reasons. Subsequently, the commission directed the government not to disclose Ijaz’s schedule of arrival and departure. Earlier, Sheikh said Ijaz was ready to come to Pakistan but he and his family had been receiving threats since the last proceedings of the case. He also referred to a statement of Interior Minister Rehman Malik on Sunday, in which he stated that the departments concerned had been directed to collect evidence on with whose connivance Ijaz had conspired to topple the government of slain former premier Benazir Bhutto and added that a case would be registered against him under Article 6 of the constitution. However, the Attorney General refuted the statement and reaffirmed his undertaking that no case would be registered against Ijaz. Bukhari termed Sheikh’s statement a mere excuse to delay the proceedings. He said Ijaz had still not even applied for a visa to Pakistan. To a question, the attorney general told the commission that Deputy Chief of Pakistan’s Mission in Washington, Iffat Imran Gardezi, had told him the Blackberry handsets of Husain Haqqani were found neither at the residence of the former ambassador nor at his office. When asked, Bukhari said it was not a legal requirement that Haqqani waive his privacy rights with RIM or RIM be requested for the same. He said his client was not legally bound to do so.
The commission then said it was appropriate to give an opportunity to Haqqani to submit an affidavit to the commission in which he must answer three questions: to whom did the BlackBerry phones that were in his possession and use belong; when did he last use these phones, and where did he leave them last. The commission asked Haqqani further to state in the affidavit whether he was prepared to waive his privacy rights with RIM.
Sheikh held that as the phones were the property of the government of Pakistan, it might well waive the privacy rights. The attorney general, however, said the participants of the conversation were required to give their consent to RIM to obtain the data. Bukhari submitted to the commission the email addresses and telephone numbers of Haqqani, but added that his client did not remember his PIN. Declining to submit a tentative list of witnesses, Bukhari told to the commission that the accuser should first bring the witnesses forward in support of the allegations and then he would see who he could present as witnesses.
The commission dismissed an application filed by a PPP activist Khalid Javed through his lawyer Raja Israr Abbasi seeking to review the commission’s order restraining the authorities concerned from registering any first information reports (FIRs) against Ijaz. The applicant said the US national had written articles against state institutions and tried to pitch them against each other, and that he was liable to be tried under Article 6 of the constitution. Abbasi said that, inter alia, the commission order had given immunity to Ijaz.
After hearing the applicant and his lawyer, the commission termed the application an “attempt to seek publicity at the cost of others” and said it was an attempt to prolong the work of the commission. “If according to you, we have committed an illegality, approach the Supreme Court,” Justice Isa said. He asked the applicant whether the ‘offence’ was committed against the state or him. He observed that the applicant was hindering the work of the commission and warned that the commission may consider his prosecution. Bukhari also supported the application. However, the attorney general stated that the application was not maintainable. Sheikh also opposed the application.
The attorney general told the commission that he had yet to send a copy of the application to RIM through the Canadian embassy in Pakistan to retrieve communication data. He said the commission should await RIM’s response in an earlier application for data retrieval. He said the company had so far conveyed that as soon as research was complete, the record would be compiled.