MemoGate: Public Interest or Political Interest?

Published in Daily Times on Monday December 19, 2011 as weekly column BAAGHI

When Nawaz Sharif decided to file a petition in the Supreme Court against whosoever had written a supposedly treasonous memo to Admiral Mike Mullen of the US, he was probably in a great hurry. Not only did he forget that the matter was already being dealt with by parliament but he could also not appreciate the fact that similar overtures to the US were made by his own government after the Kargil misadventure. Not only that, in all that rush of urgency he chose to wrongly invoke Public Interest Litigation (PIL) in a case where it was not even remotely applicable. One is, however, stupefied to see the superior court aiding him magnanimously in this falsification of law and indicting the other party without even hearing it.

Article 184(3) of the constitution, which has been made the locus standi of Mr Sharif’s petition, guarantees judicial redress in matters of public importance where a violation of fundamental rights of the citizens has been made. PIL under Article 184(3), thus, gives way to judicial activism on matters where the poor and marginalised sections of the citizenry may be victims of gross violations of their fundamental rights. What distinguishes PIL from the rest of litigation is its distinctive position benefitting the larger public and for the greater good rather than for serving personal purposes. Whereas only the aggrieved party could initiate litigation against the perpetrators, PIL empowers public interest groups and human rights activists to go into litigation on matters affecting the larger public even though they may not be directly affected. It is, however, a matter of great care for the judiciary to admit petitions under PIL so that ‘public interest’ may not become personal or political interest.

In a report in March 2010, the Human Rights Commission of Pakistan (HRCP) came up with broad guidelines and recommendations for the apex court to regulate and govern PIL and judicial activism under suo motu notices so as to avoid the abuse and misuse of this constitutional provision. According to these guidelines, it is incumbent upon the court to see that the petitions filed under PIL must not be for personal gain, private profit or political or other oblique considerations. The HRCP report also warned the apex court about the dangerous consequences of careless judicial activism, which might compromise the dispensation of justice instead of guaranteeing it — the raison d’être of the judicial system per se. Another point of distinction of PIL is its cooperative and consultative nature as opposed to being adversarial in which one party is aggrieved and the other is accused, the way it is in traditional litigation.

Now let’s come back to the petition Mr Sharif has filed and the haste with which the apex court admitted it and issued orders without even hearing the other party. Mr Sharif’s legal advisors got their master in a wrong position by advising to invoke PIL, probably responding to his impatience to pounce on the government in unison with a media group that looks like holding a personal enmity with the ruling party and more so with the democratically elected president of the country. The honourable court could not see the obvious that Mr Sharif is a prime minister-in-waiting and is an obvious possible beneficiary in case the continuity of the current democratic system is disrupted. The basic concept of PIL is to foster the democratic system with public access to justice but it seems to have been compromised in this particular case where the very democratic system that PIL intends to secure is being put into turbulence to the extent that its very existence is endangered.

In a famous PIL case of Ashok Kumar Pandey Vs The State of West Bengal on November 18, 2003, the bench consisting of Justice Doraiswamy Raju and Justice Arijit Pasayat opined: “When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation, which has now come to occupy an important field in the administration of law, should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘paise income litigation’. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke one’s nose into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity.”That should have put Mr Sharif’s petition in perspective and my lordships should have allowed justice to prevail instead of becoming a party against the democratic dispensation in a case that stands on mere suspicion, not proven hitherto in any court of law and which gives undue credence to news items appearing in the media. The very order issued by the honourable court gives rise to many suspicions when one reads the petition only to find that not even the petitioners have made the claim that the news items are based on irrefutable facts or the truth. A suspicious memo, the existence of which is claimed to be unquestionable by certain sections of the media, is made the basis of a purported case of public interest that looks more like a personal interest litigation and which the apex court is not able to see. The said media group, too, has a corporate as well as personal stakes in bringing down a government that has been adamant on collecting income tax, which it sees as an act of ‘victimisation’ by the former.

Although one might like to believe that the lordships were trying to speak through their judgement, it appears someone in the honourable court is surely not in love with democracy and the separation of powers principle Pakistan is bound to observe under Commonwealth’s Principles of Latimer House. Not only international commitments, but also according to Pakistan’s own constitution under Article 69, it is incumbent upon the honourable courts to not indulge in matters under parliament’s consideration. Not only the judiciary but also Mr Nawaz Sharif, who otherwise likes to appear a thorough democrat and proponent of civilian supremacy, should have heeded that parliament had already taken up the matter and that the petitioner and the court should have waited for the parliamentary outcome of the issue.

Freedom and independence of the judiciary rests in strictly adhering to the separation of powers principle. Undermining trias politica will ultimately impair the judiciary’s hard-earned freedom by civil society. Moreover, just because portions of the bench are not pleased by certain people, it should not become the basis of denying justice to those people. Probably that’s what Martin Luther King Jr meant when he said injustice anywhere is a threat to justice everywhere.

Postscript: Let me put it as a litmus test of the lordships and see if my (a bona fide citizen of Pakistan, and only Pakistan) previous columns on these pages are also considered by the honourable court as my petitions, just as has been done for a Canadian citizen, Mr Shafqatullah.

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2 thoughts on “MemoGate: Public Interest or Political Interest?

  1. Tony Ryals says:

    It’s obvious that justice wasn’t served when another Washington, D.C. and CIA connected Mansoor Ijaz who has been ex CIA director James Woolsey’s partner in stock fraud and money laundering and fraud against Americans through Crescent Hydropolis NY based Bloomberg protected hedge fund, is never mentioned by Zionist shill Asra Nomani when she lays the blame to distract from any real investigation into the death of her supposed friend and WSJ boss Daniel Pearl,( just like Daniel Pearl’s Zionista daddy Judea Pearl seems to be prorecting Israelis of ICTS International who allowed Richard Reid to board at De Gualle Airport with his ‘shoe bomb’ one month after allowing the presumed Islamic Saudi Mohamed Atta terrorists to board at Logan Boston on 9/11/01 a month before that. ).
    It was Mansoor Ijaz ‘advice’ and connections in Pakistan that got Daniel Pearl murdered in the first place. And Asra Nomani who was there knows all this and if she was a Wall Street Journal ‘reporter’ she is an embarrassment,(or a good example of the pseudo-journalists WSJ hires),because she doesn’t even know of her fellow Beltway parasite Mansoor Ijaz’ involvement in stock fraud,particularly but not only Crescent Hydropolis,with James Woolsey,Lt.General James Alan Abrahamson and Lt. General Mcinerney on the London AIM stock exchange that had the backing of Dubai war AND MONEY LAUNDERING criminal Sheik Mohamed Al Rashid bin Maktoum whose country sent $100,000 from Pakistani Kalid Sheik Mohamed to Mohamed Atta, pre 9/11, in Venice,Florida where he was hanging out at Jeb Bush’s pal Wally Hilliard’s terrorist flight school,Huffman Aviation.This Snake of Dubai Sheik Mohamed al Rashid Maktoum was then rewarded with over 20% ownership of the U.S.NASDAQ FOR HIS MONEY LAUNDERING BUSINESS IN DUBAI AS A CONSOLATION PRIZE FOR NOT BEING ALLOWED TO BUY CONTROL OF U.S.PORTS THROUGH DUBAI PORTS.Asra Nomani and other phony ‘professional’ reporters made sure to not write about Sheikh Maktoum’s take over of 20%+ of NASDAQ and SEC Chairwoman Mary Scapiro and IRS Commissioner Doug Shulman’s self dealing and millions of dollars for their treasonous act of selling it to him in their roles as FINRA execs before their retired to their Barack Osama Obama approved SEC and IRS positions in the U.S. ‘government’.
    Asra Nomani is a sick joke and she is also the only Moslem I know of, besides Richard Reid ‘the shoe bomber’, who was given VIP treatment and an easy and welcome pass to travel to Israel.Maybe Israel welcomed her because she is such a good Moslem ? Ha.
    Asra likes to forget that even according to the ridiculous movie and book supposedly written by Mariane Pearl,(whose role was played so absurdly by the white ‘actress’ Angelina Jolie),that Daniel Pearl’s main reason for being in Pakistan was to investigate Richard Reid ‘the shoe bomber’ .And yet if Daniel Pearl was sincere he would have been in his own country of Israel investigating because as any fool who is familair with the background knows,it was Israel and El Al Airlines and particulary Israeli money launderer and 9/11 mass murder suspect Menachem Atzmon and his ICTS International(who allowed 911 to happen in the first place by allowing Atta and his gang to board flights 175 and 11 from Logan Airport ,Boston on 9/11/901 with their plastic cookie cutters in the first place), who also facilitated Richard Reid’s vacation in Israel,( supposedly to visit Hamas) !
    If you or I were to wanted to enter Israel to visit Hamas do you think Israel and ICTS and El Al would facilitate and aid our visit ? I don’t think so.However if you are Richard Reid the shoe bomber or the great Islamic WSJ ‘reporter’ and Georgetown University journalism fraud Asra Nomani, Israel gives VIP treatment.Why!?

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  2. Siddharth Sharma says:

    Its high time Pakistan should come out of its Allah-Army-America syndrome.,fed on anti India sentiments,glorification of Pakistanis as ‘Martial’,considering Indians as ill-witted and Coward ‘Hindoo Baniya’ , its high time that the Pakistani public should introspect about the results they have achieved by all this. Time is to look forward,this is a new age, new beginning is necessary, and who else would be better to lead the Pakistanis into the glorious path of Peace and development than Mervi Sarmad.

    Kudos to you, ma’am.For being the lone sane voice in a country which is currently in shambles.

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