update: There has been alterations and additions made to accommodate few other articles on the same issue

The Supreme Court has stated that under the Article 184-3, they have
jurisdiction to hear the petition on alleged memo, because fundamental
rights are directly involved. The three fundamental rights that are
directly at issue are Article 9 (Due Process), Article 14 (Dignity of Man)
and Article 19A (right to information on matters of public information). If
there are any rights breached, it must be that of petitioner, which in this
case is Nawaz Sharif.
Here is the text of Article 9 “No person shall be deprived of life or
liberty save in accordance with law.”
It boggles mind that as petitioner was under no threat of any such loss of
liberty (as he not even a party to any of incidents) it may be assumed that
someone else’s life and liberty were under threat.
Mr Waris Hussain, JD. Writing for Daily Dawn makes an apparently ludicrous
claim that
“the implicit argument by the petitioners could be that if the U.S. had
acted on the memo and stopped a military coup from taking place, Pakistan’s
generals and treasonous military personnel would be subject to death or
illegal detention at the hands of the U.S. This hypothetical series of
events was enough to satisfy the Court to continue its probe in order to
protect the fundamental rights of the military”

 

But if Article 9 is at issue, one can’t help but feel if this was in fact what was in Supreme Court’s mind; unfortunately not much discussion is done to elaborate as to the line of thinking that led to this conclusion. It is clear that by having a parallel commission at same time as parliamentary
commission, under the prescribed rules in the proper legislation, National Commissions Act, Mr Haqani’s fundamental rights of due process are arguably being subverted.
As hinted earlier, Mr Sharif is not even party to any of the incidents, yet is a petitioner and court allowed him locus standi (i.e. Standing to fight the case). Now principle is that X, can’t fight Y’s claim against Z, unless X is himself somewhat affected as well. Only exception is that when Y’s
claim is such an issue that it is in Public interest that X should fight this case. There are of course limitations to this, one of this being that X must be a person who represents the people as a whole. No discussion was made in decision as Mr Sharif actually being that person. Similarly there
must be a credible reason why Y himself can’t start litigation. No discussion is made as to this either. It is as if Mr Sharif was given standing as of a right, even though he is not party to facts of the case.
Such are the pitfalls of an activist court that takes suo moto notices of customs relaxations.
Article 14 Text is “(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence.”
I have no idea whose residential privacy was violated, or who has been tortured, nor has the Court in its order explained this predicament. If anything Mr Haqqani’s privacy is going to be breached by court’s demand for his personal Blackberry messages.
Article 19A “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.”
If we are being honest, petitioner’s case mostly is dependent on this Article only. This however is an article that provides the freedom of Information to the public that is held by the Government. It is historically read as an enabling law. If a government agency is holding information against you, and you feel you have a right to it, or if that information is in public interest, then article 19A allows you to sue for that information.
What court has done in a moment of judicial creativity has turned this into a positive law which not only enables but also requires precipitous action, and by further taking it upon themselves to find the ‘facts’ it is submitted that the court has gone five steps further then a role ever
envisaged for a Supreme court in common law system. It taken the role of Judge, legislative (by a highly creative interpretation of Constitution) and executive (by means of the commission) – it was thus already raised by advocate for Hussain Haqqani that court had made itself bias, and by
removing a chance of appeal – it has further subverted due process. Creative reading of Article 19A has also other ‘flood gate’ implications, which normally courts are wary of, and thus avoid such adventures. If the court can on its own accord seek investigate memo issue, in public
interest. What stopped the court from investigating wikileaks? For example the leak that General Kiyani had spoken to US Ambassador about removing President Zardari. Here in addition to all, there is direct application of Article 6 as well. Or what prevents the court from looking into death of Akber Bugti, whose death was arguably violation of Article 9 and 10. In fact, in one of his speeches during the lawyer’s Movement, The Chief Justice alluded to killing of Akber Bugti being extrajudicial, if so, shouldn’t article 19-A not be used here as well. Then there is Death of
Benazir Bhutto, Liquat Ali Khan, Fatima Jinnah and Muhammad Ali Jinnah.
Also the issues of Kargil, Ojri camp, Tashkant Agreement, Niazi Surrender, East-Pakistan and so on. See what I mean by flood gates? This decision is a clear precedent for all other issues to be raised in the court, and with already a enormous workload at all courts, it may be a giant’s burden that
Supreme Court has taken upon itself. One can only speculate why?
Finally is the issue of Due Process. There was already a parliamentary
commission formed under the proper mechanism. If the Supreme Court or
petitioner had any objections to the said commission, a review of the
commission was possible even prior to its investigation. If the court was
worried about the commission’s potency, then more power should have been
recommended. The sphere of investigation may have been increased and if any
people on the commission were questionable, then even that could have been
addressed.
It is not for no reason that Highest Court in Land is being criticised in the country, there have been many liberties taken, and there is a lot of speculation, in the land of conspiracy theories, as to why there may be such an extreme action taken by Supreme Court. Only time would tell .

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