These are all issues falling in the political domain and require political resolutions.
HOUSTON, TX, US: As reported in your newspaper on the memogate case, the Honourable Supreme Court invoked its original jurisdiction pursuant to Article 184(3) of the Constitution and admitted Nawaz Sharif’s petition on the ground of ensuring the enforcement of the petitioner’s fundamental rights, specified in Articles 9, 14 and 19-A.
This special jurisdiction is conditional and limited on account of practical necessity — lest the apex court is inundated with an endless plethora of petitions, for which it would have neither the time nor the resources to adjudicate. The petitioner was required to establish by persuasive evidence that the said memo had resulted in, or would irreparably result in a direct, actual, substantial violation of his fundamental rights as mentioned above, and to show that the remedy he seeks, i.e. an investigation or inquiry, would actually redress the actual harm or injury done to him. It is very doubtful that the petition would have overcome such a burden of proof in the hearing.
It’s difficult to see how this memo directly and individually affects or impinges on the petitioner’s fundamental rights under Article 9 (“No person shall be deprived of life and liberty...”) and/or under Article 14 (pertaining to “dignity of man”, “privacy of home” and “torture for the purpose of extracting evidence”).
Finally, the fundamental right pursuant to Article 19-A is the “right to have access to information in all matters of public information subject to regulations and reasonable restrictions imposed by all”. This article was enacted through the 18th Amendment to provide citizens access to official information that is already in government files. In this case, the government is denying the very existence or possession of such information and the petitioner has shown no such proof, other than to ask the Court to order an investigation into the possibility of the government’s connection to the memo.
Moreover, mere speculation or the possibility of existence of any information in government hands is not enough to invoke the special jurisdiction of the court. The Supreme Court is required to adjudicate only those cases or petitions where the injury or harm to a citizen, arising from infringement of his constitutionally-guaranteed fundamental rights, is concrete and actual; not potential or abstract, where it is individual and personal and not general and vague.
Has the writing of this letter or memo by a foreign citizen or its submission to a US general resulted in any personal, direct, actual or concrete violation or denial of his above specified fundamental rights? If not, then clearly the petitioner(s) failed to establish through pertinent evidence that he had such required legal standing to solicit this special jurisdiction of the Court.
The case seems to be inconsistent with the established principle of judicial review that the courts are prohibited from admitting or hearing cases that involve mainly political questions. There can be no doubt that the subject matter of the memo dealt with political issues and goals: to prevent the army from averting a coup, overthrowing of a civilian democratic government and strengthening of the executive branch, etc. These are all issues falling in the political domain and require political resolutions.
Tausif Kamal
Attorney at Law,
Published in The Express Tribune, January 15th, 2012.
