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.