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Editorial
overview Covering the
familygate accountability Business
typhoon Prodigal
son? Our
hypocritical polity
This indeed is a
grand exposè. Ironically, the choice one has to make is between crooks. Of
course you can ignore the option to choose which you will if you happen to
be a common man. In the entire episode that
has come into public knowledge in the last two weeks, and which we are being
told is only a tip of the iceberg, the common man appears to have been
shortchanged. Or is he? For the time being, at
least, it looks as if we are heading towards an institutional chaos. But
what exactly is it? Politicians represented in the parliament were sold as
the most corrupt of the lot for too long; they actually have learned to live
with the reputation. It was not too difficult to criticise the military
either, even if at the risk of violating national interest. However, nothing
could go wrong with the newly independent judiciary which was sold as the
most virtuous and infallible institution. The media was guilty of selling
this impression. But this was not its only fault; it was equally guilty of
protecting Malik Riaz by exercising a fair amount of self-censorship and
caution. In a strange twist of
fate, the two sacred cows are today pitched against each other. The merits
of the case may await decision but in the court of public opinion the deed
is done. Reputations have been made and unmade. But wait. The common man out
there counts us, the mediapeople, in the list of sacred cows too. And he is
right. The media is an important stakeholder in the current crisis and has a
lot to answer for. If one decides to leave
the cynicism aside for a moment, there could be a silver lining here — all
sacred cows standing in the open and facing accountability of the people. These are the issues that
we have tried to address in today’s Special Report with the most sacred of
these cows receiving the most attention.
overview The grand exposè Leaving aside the merits or motives of Malik’s sensational charges, what is clear is that the hour requiring a judgment on the judiciary’s performance is, for better or for worse, upon us By Adnan Rehmat In hindsight it
was inevitable. Both the Supreme Court of Pakistan and its judges were
always going to be eventually themselves judged for performance benchmarks
and high ideals they had set for themselves after being restored in the
aftermath of a collective resistance against a military dictatorship. Five
years after staking its claim to a ‘truly independent judiciary’ that
neither brooked fear nor favour anymore and being transformed into a
selfless institution, the judiciary finds itself now in an intractable
situation where anything they do or decide incriminates them for,
ironically, self-judgment — whether they indict or exonerate themselves. The reason: serious
allegations from the super-rich realtor Riaz Malik about Chief Justice
Iftikhar Chaudhry being less than enthusiastic about bringing his prodigal
son Arsalan Iftikhar to justice — in time and with the same righteous rage
that he has demonstrated he reserves for others — on charges of taking
massive amounts of money to influence decisions from his father’s court
and the father not taking action even knowing the son was in business with
Malik. And, that judges as a whole are judging their chief less harshly and
more slowly than, for instance, the government’s functionaries charged for
similar allegations of indiscretions at worst and indifferent at best. Leaving aside the merits
or motives of Malik’s sensational charges, which he appears to be
unfolding in installments with clear indication their severity will grow and
that purportedly more incriminatory evidence will be revealed, what is clear
is that the hour requiring a judgment on the judiciary’s performance,
priorities and singular patent on dispensing justice is, for better or for
worse, upon us. How both the apex court and its judges as well as the chief
justice apply their own standards of justice to themselves will show if they
practise what they preach when it comes to accountability, impartiality and
fairness. The resistance in 2007 by
the judges to their sacking, led by the Chief Justice, and the movement for
their restoration was always predicated on a moral high ground that
necessitated not accepting the decision by a military dictator to sack them
en masse — notwithstanding the fact that the same set of judges had
validated General Pervez Musharraf’s self-confessed unconstitutional
putsch against an elected government. That the showdown between the
judiciary and the army eventually resulted in Musharraf bowing out and the
justices donning their black robes again ostensibly meant judiciary had
become ‘truly independent’ and severely dented the military’s powerful
dominance over the polity and apparently strengthened the parliament and
presidency. How ironical, then, that
five years down the road, the army is stronger than ever before and the
parliament and the elected representatives as well as the political forces
on the back foot. And, the judiciary itself in the proverbial dock, to boot.
All because, rightly or wrongly, the superior judiciary decided soon after
its second restoration by the elected coalition government to focus its
energies on not just taking on political cases but itself encouraged
litigation on political issues. Where this encouragement wasn’t enough, it
launched into an undisguised phase of judicial activism based in a perceived
legitimacy drawn from restoration as an outcome of its institutional
resistance to the executive fiat of General Musharraf’s dispensation. This activism driven by a
sense of mission and destiny has also been helped by the fact that Iftikhar
Chaudhry has managed to get an unusually long term in office as the head of
the apex court, which has fuelled the drive to be judge, jury and
executioner in several cases — best illustrated by the trial of Prime
Minister Yousaf Gilani for contempt of court, which by implication sought to
all but throw him out of office based on perceived slight. With less than a
year to go in his tenure, the chief justice, as illustrated by his larger
than life profile and vocal demeanor, also seems to be obsessed by his
legacy. Legacies, however, are a
dangerous business when the equation includes the power to influence events
that not just go beyond your term in office but sometimes a generation and
beyond and to actually have, by the last word on fates of institutions,
governments and nations. Notwithstanding the intention, influence or
capacity of Iftikhar Chaudhry to accomplish goals that seemingly go beyond
the normally perceived and acceptable mandate of judges and judiciaries, the
legacy of the Chief Justice is looking different from his stated (as opposed
to accorded) mandate of ridding the society of all ills. Chief Justice
Iftikhar Chaudhry’s real legacy throws up at least three characteristics
in relief: 1)The Supreme Court has
been rendered a court of complaint more than a court of appeal. Consequence:
defendants lose at least two chances of self-defence and appeal in case they
feel shortchanged by an inefficient justice system. No one in the last four
years has won a single case of appeal against the apex courts own judgment.
High profile examples: Admission of petition after petition against the
government from ordinary citizens — from an appeal to stop sacking of ISI
Chief General Pasha when there was no such decision to stop former
ambassador Hussain Haqqani from working and putting him on Exit Control
List. 2)The Supreme Court has
turned the maxim of innocent until proven guilty to guilty until proven
innocent. Consequence: Whoever moves the Supreme Court first against someone
all but wins the case. High profile examples: President Asif Zardari guilty
of alleged corruption despite failure of both complainants and courts to
convict him for over two decades now, half of which he spent in prison.
Another example is Hussain Haqqani who has been all but declared a traitor
without even being tried — the commission that investigated him not having
the status of a tribunal. 3)The Supreme Court moves
in a pack and hands out unanimous judgments with nary a dissenting note from
a judge in a bench in sight. Consequence: Defendants are at a significant
disadvantage in the pursuit of justice when dealing with a bench that has
clearly strong opinions on issues — sometimes bordering on premeditation.
High profile example: a seven-member bench declaring Prime Minister Gilani
guilty of contempt of court in a unanimous decision that oozed unusual
venom. A distinct feature of
these three characteristics is that an elected government and parliamentary
supremacy have been the largest victims of this judicial activism based on
initiation either by the Supreme Court itself or by unelected politicians
such as Imran Khan who reserve unguarded contempt for parliament and its
public mandate of five years. The Supreme Court led by Iftikhar Chaudhry has
not only gone about admonishing and punishing elected leaders for perceived
contempt for disagreeing with the court but also singularly failed to ask
others like Imran Khan and Nawaz Sharif to not openly support the judges for
political ends. Not asking them to stop is akin to enjoying this perceived
‘popularity’. Justice, they say, should
not only be done but seen to be done. Has justice been done? The Pakistan
People’s Party and its coalition allies may feel they have been wronged by
a judiciary that is supposed to be neutral but has played political; how
does the superior judiciary and its chief justice feel when the shoe is on
the other foot? The irony is that the judges will judge themselves on the
Arsalan-Riaz case. That may be the ultimate luxury but there’s no escaping
the fact that it is judgment time and the judges are going to discover they
are humans after all and the only mission is not a guilty verdict.
Covering the
familygate The surfacing of
what has been described as the familygate has put the Pakistani media in the
dock. But unfortunately, for the wrong reasons. The familygate has raised
many questions which need to be answered. This article focuses on the
following two questions: Did the media act inappropriately in covering or,
more precisely, not covering the latest scandal in Pakistan? Did the media
play in the hands of Riaz Malik or, as some say, the government or, as some
others say, the military establishment? Between June 4 when
journalist Shaheen Sehbai discussed the scandal on the newly launched
Washington Beat channel on YouTube and June 12 when Malik Riaz appeared in
the Supreme Court with his dossier on Dr Arsalan Chaudhry, a large number of
journalists, anchorpersons and commentators severely criticised the
Pakistani media for having covered the scandal. The common argument was that
no journalist has the documentary evidence to substantiate the allegations.
They also tried to prophesy that Malik Riaz was using these journalists and
he would deny having spoken to them in the court. Some even criticised Mr
Sehbai for discussing it on the social media instead of the newspaper he
edits. They argued that this would not have happened in the West. Those who were making such
criticism were wrong on all counts. The available evidence shows that Riaz
had started showing the dossier to his specially invited guests as early as
six months ago. Although he did not give them the copies of the documents,
he allowed them to cite and quote him. In other cases, this would
have been enough for a reporter to write the story or dig out the story.
Journalistic accounts are not meant for courts of law and are rarely backed
by documents. Riaz’s guests disappointed him by withholding the news. The
news was, however, spicy enough to become a hot topic among the chattering
classes of Pakistan. In the last one month or so, the same people started
referring to it in the social media. However, the scam hit the headlines in
Pakistan once Mr Sehbai discussed it on the YouTube. Had the media played in
the hands of anybody, the scam would have broken several months ago. The wealthiest people in
any country do and say and make news. Malik Riaz is no doubt one of the
richest persons in Pakistan. Had he been a citizen of the United States or a
European country and paid such money to the son of that country’s Chief
Justice, he would have gotten the news out in six hours instead of six
months. The Supreme Court emerged as a new kind of taboo subject in the wake
of the restoration of Chief Justice of Pakistan Iftikhar Mohammad Chaudhry.
It would one day give legitimacy to military action against the present PPP
government. Many journalists and
anchorpersons and commentators have been almost begging the Supreme Court to
call in the armed forces against the government. According to Tehrik-e-Insaf
Chairman Imran Khan, the army chief had refused to act under his orders when
Chief Justice Iftikhar Mohammad Chaudhry privately sounded him out. The hope
is still alive. The surfing of this scam was bound to smash all hopes of
bringing down the government. The role of the Pakistani
media is far from satisfactory in this case as in most cases. Like always,
the Pakistani media has been selective in its coverage of this scam. The
media is clearly biased against Riaz although some of his allegations are
prima facie correct. There is no evidence of CJ’s involvement in this scam
at the time of writing this story. However, there is enough evidence that
some of the questions raised by Malik Riaz at his press conference on
Tuesday are valid. There is enough evidence that the CJ was made aware of
his son’s involvement in the scam by a female journalist, through a common
friend, and Chaudhry Aitzaz Ahsan several months ago. Why did the CJ not
take action or suo moto action before June 4? The Registrar of the
Supreme Court has at least accepted on behalf of the CJ that the latter met
with Riaz before his restoration in broad daylight if not in the darkness of
the night. Under the discipline of the Lawyers’ Movement, the CJ was not
supposed to meet any government intermediaries. The media is avoiding them
as plague. Many journalists,
anchorpersons and commentators have been criticising Malik Riaz for taking
oath on the Holy Quran at his press conference, but the same people
conveniently ignore the fact that the CJ had done the same earlier. Dr Arsalan is reported to
have built a huge business empire in the last 3-4 years. He claims his net
worth is around Rs900 million. He also claims that he had returned whatever
Bahria had paid him or spent on him. The real question for the media to
raise is: Would someone whose total worth is just Rs900 million spend Rs340
million on pleasure trips to London and Monte Carlo? There are many other
questions the media need to raise but avoids it. Many journalists,
anchorpersons and commentators see the government behind Riaz. Others see
the military establishment pulling Riaz’s strings. The real issue is
whether Riaz’s allegations are true. He should be given enough opportunity
to prove his allegations against Dr Arsalan Chaudhry and Dr Arsalan to
disprove them. The son of Chief Justice Iftikhar Mohammad Chaudhry must be
treated as any other accused like the sons of Prime Minister Gilani or any
other politician.
Quis custodiet
ipsos custodes? (Who will guard the guards?) was the question posed by the
Roman poet Juvenal. The context of the original question in his Satires is a
cynical one with Juvenal suggesting that wives cannot be trusted and putting
them under guard is not likely to work. Notwithstanding the thoroughly
unappealing and chauvinistic context, the independent formulation of the
question retains its allure and remains incompletely answered in Statecraft. One question that has not
arisen out of the Arsalan Iftikhar episode is that of judicial
accountability. This is perhaps justifiable since no direct allegation of
corruption has been levelled against the Chief Justice. However, one needs
to be partially tone-deaf to ignore the offstage noise. In any event, it is
always a good time to talk about accountability and now is a time as good as
any. The primary problem of
talking about judicial accountability is that the frontiers of
accountability and independence are on most occasions very fuzzy and there
is always the fear of infringing over independence and of impending contempt
of court. The independence of judiciary, as we are constantly reminded, is
not something to be trifled with. The Constitution of
Pakistan does lay down a procedure of holding judges accountable in the form
of the Supreme Judicial Council. At a basic level, the Council comprises the
senior most judges in the country and hence rightly attracts the presumption
of being composed of men (I cannot recall a woman being on it) of
unimpeachable integrity. Therefore, many would say that there is already a
mechanism in place for accountability of judges. The major objection to the
SJC is that it is judges holding judges accountable and it, in many ways,
strikes at the very essence of separation of powers and checks and balances. It is not the uprightness
or ability of individual judges who are members of the Supreme Judicial
Council which is under argument but rather the concept. Thomas Paine once
said, “A body of men holding themselves accountable to nobody should not
be trusted by anyone.” The parallel is not exact since the Supreme Court
admittedly holds itself accountable to the SJC but it is a little too close
to comfort. If SC and SJC are not fraternal brothers they are at the very
least close cousins. I restrain myself from paternal analogies. General principles aside,
the SJC and self accountability has become increasingly difficult in the
case of the present court. The court has displayed an ominous tendency of
galvanising and closing its ranks at any external threat. I do not intend to
use this in a pejorative way, yet there is feeling of something which
vaguely resembles trade unionism. This can be explained by the rather simple
historical analysis of the idiocy displayed by General Musharraf in 2007 and
unity was necessary then. However, it seems that they have never really
gotten out of the “band of brothers” battle mode. Similarly, the Chief
Justice seems to have been accepted as a leader by brother judges, I
speculate, but I think this is good speculation. The front of solidarity is
neither good for judicial independence nor for accountability. Let me be
clear, I do not allege any malice on any Honourable Judge, yet the war time
ethics do blur the vision. There is a decent argument
that the SJC is now practically a defunct organisation. In the matter of
sending PCO judges home, the SC did not feel compelled to refer individual
cases to the SJC but rather proceeded to terminate employments themselves.
The unhappy irony is that the SC could be said to have done exactly what
General Musharraf did — remove judges of the Superior Courts without
reference to the only body constitutionally empowered to do so, the SJC. Powerful people holding
themselves accountable should always make everyone nervous, the possibility
of institutional degeneration into an oligarchy is a very real one.
Remaining on nervousness, I personally become fairly jittery and speechless
when people talk as they often do about “having faith” in Judiciary as
if it is a matter of belief and not of temporal institutional arrangements. The debate in India on
judicial accountability is considerably more elevated and can be consulted
by anyone so inclined. One would have thought that while amending the
appointment process in the 18th Amendment, the Parliament would have given
some consideration to the process of accountability. A new proposed
accountability mechanism is considerably beyond the scope of an opinion
piece, yet replicating the appointment model of having at least some members
of the legislature (equally from opposition and government benches) might
have some value. The Honorable Judges of the Superior Courts can themselves
spearhead the process and demand a change so as to put themselves above any
undue suspicion. For the time being, symbolically a periodic declaration of
assets of Judges can be made public and perhaps even be demanded under
Article 19-A (freedom of information) by any citizen. Coming back to the
original question of Juvenal, Plato might have pre-empted him by a few
centuries. In Plato’s Republic, Socrates while discussing the
permissibility of intoxication for the Guardians said that they should
abstain from getting drunk as then they might need a guard and that would be
absurd. Plato’s teetotaler scheme was that the Guardians would not need
guards because they will invent a “Nobel lie” to not only guard the city
but also themselves against themselves. Perhaps, Plato can be forgiven for
his naiveté since he wrote in a time before cable television, wily anchors
and Malik Riaz. The writer is a Lahore
based lawyer
Business
typhoon Sixty-three years
old Malik Riaz, the first person to drive a Bentley on Pakistani roads,
began his career as a lowly clerk in Military Engineering Service (MES) at
the age of 19. Later, he took up a small-time contract with the military and
grew into the country’s top land developer. Although Riaz was born
into a reasonably wealthy family, his father’s business had collapsed by
then and the entire household was forced to live hand to mouth. Riaz is
never shy to discuss his ‘poverty days’ and he also relates how, at 22,
he had to sell some family silverware just to buy medicine for his
two-year-old ailing daughter. Well-known Pakistani
columnist Javed Chaudhry wrote in a Dec 2010 column that Malik Riaz
“passed his matriculation examination by a margin of only one mark. …His
got his first contract worth Rs1,500 only. This was followed by a small,
road construction contract. …He used to walk up to 8-10 kilometres in
order to just save 50 paisas. To get small contracts he would line up
outside the concerned offices for as many as two consecutive days. His
wife’s biggest wish was to own a 5-marla house. Little did she know he was
destined to start Pakistan’s largest housing scheme. …He convinced
foreign investors and companies to invest in the country. This is an amazing
rags-to-riches story.” Today, Malik Riaz is a
business tycoon to reckon with — the man behind Bahria Town, one of the
largest private development projects to have materialised in the entire
South Asian region. From being a small-time contractor in the 1980s, he has
come up to rank as Pakistan’s ninth richest man with total assets worth
$800 million. But, according to his
critics, the details of how he climbed the ladder of success are extremely
shady. They say Riaz’s Bahria Town empire is fuelled by his close ties
with the military. Dr Ayesha Siddiqa, a civil-military analyst and the
author of Military Inc: Inside Pakistan’s Military Economy, alleges in her
book that those links have allowed him to acquire land, in some cases return
a percentage to senior officers in the shape of developed plots. BBC Urdu
reports that a lawyer who is party against Malik in the SC submitted
documents in the Court that included his agreements with ex-Naval Chief
Admiral Fasih Bokhari. Malik Riaz has become a
phenomenon in Pakistan over the past two decades or so. He is one of the
most influential people of the country who have developed friendly relations
not only with the military but also with all important political parties and
leaders. He is one business man who, reportedly, brokered the Bhurban deal
between Asif Zardari and Nawaz Sharif. He reportedly remained in the
Governor’s House, Lahore, during the Governor’s rule in 2010 with
bagfuls of money to buy parliamentarians to form a coalition government of
the PPP and the PML-Q in the province. But this act of his did
not hurt his relationship with the Sharif brothers and later Riaz invested
more than Rs700 million in Shahbaz Sharif’s Ashyana Housing Scheme for low
grade government officials. It is also said that he is
the main sponsor of the PTI political rallies. In the early days of
Pervez Musharraf, scores of cases were opened against him in the NAB, but he
successfully developed friendly relations with the former President and,
during the same time, he befriended the then imprisoned Asif Zardari. National Accountability
Bureau (NAB) is currently looking into another application filed by a former
military officer Lt Col (retd) Tariq Kamal which states that the land on
which Bahria Town is constructed — and is further expanding — was not
acquired through legal means. It is alleged that a handful of important
serving army officers, bureaucrats and lawyers are practically on his
payroll. Chaudhry Nisar Hussain,
opposition leader in the National Assembly, told the media that presently
nine former generals are working with him (Riaz). According to media
reports, Riaz with the help of the Defence Housing Authority (DHA) had
grabbed Rs62 billion worth of land from an estimated number of 150,000
people belonging to lower- and lower-middle income group. This is not the only case
against him. There are scores of cases of illegal occupation of land and
fraud — even murder — against him being heard in different courts f the
country including the SC. Media reports hint at over 30 cases against him
lying pending in the SC. It is assumed that the reason why he bribed Dr
Arsalan Iftikhar and financed his trips to London was to gain influence in
the judicial circle and buy the verdict of the charges levelled against him.
Malik Riaz openly says
there is a price for everything in Pakistan. His friends have come on record
to claim that he is an extremely shrewd person. He has also been running a number of charity organisations. Bahria Dastarkhwan, held in a number of cities of Pakistan, serves thousands of people twice a day. In one of his interviews, Riaz claimed that he was pursuing the strategy of ‘Sultana Daaku’: “I earn from the rich and give to the poor!”
Prodigal
son? 34 year old Dr
Arsalan Iftikhar’s name came into limelight for the first time in the year
2007 when the then President and Chief of Army Staff Pervez Musharraf filed
a reference against Justice Iftikhar Muhammad Chaudhry before the Supreme
Judicial Council. He quoted several allegations against Dr Arsalan in the
reference. However, none of them was proved during the trial of the CJ.
According to the reference, one of the charges levelled against the CJ was
that he had (allegedly) committed misconduct by using his office to give
undue favours to Dr Arsalan Iftikhar. The reference stated that
Dr Arsalan had secured a C grade in his intermediate examination, and later
got admission in Bolan Medical College (in 1996). As his grades were not
good enough to grant him admission, it was alleged that the then chief
minister of Balochistan was approached to nominate Dr Arsalan for admission
against the quota of chief minister. Nine years later, in 2005,
Dr Arsalan was appointed as a medical officer at Institute of Public Health,
Quetta. But, within a few days, he was promoted as section officer in the
Health Department by then chief minister of Balochistan. Within a few
months, by the August of 2005, the Ministry of Interior sent a letter to the
government of Balochistan regarding Dr Arsalan’s services being required
in FIA. In September of 2005, the Ministry of Interior issued a notification
to appoint Dr Arsalan as Assistant Director in the FIA. In the April of
2006, Dr Arsalan was promoted to the position of Deputy Director in FIA. The reference alleged that
after being promoted in the FIA, a campaign was launched to recruit Dr
Arsalan in the police service and, in the May of 2006, the Ministry of
Interior issued a letter to National Police Academy, Islamabad to attach Dr
Arsalan for field training along with under training ASPs. It was a normal
routine to send officials of FIA to get training in the police academy but,
a few days later, the Ministry of Interior issued another letter ordering
that after the completion of Dr Arsalan’s training at National Police
Academy, the services of the trainee be made available to Punjab Police. It was never proved that
the chief justice ever used his office to gain advantage for his son. On
March 11, 2007, senior journalist Ansar Abbasi filed a story in The News
specifically on Dr Arsalan’s case. According to the story, interior
minister Aftab Sherpao, whose ministry had issued repeated orders to treat
Dr Arsalan extraordinarily, right from his posting from Balochistan to the
FIA to letting him get police training along with the probationers of the
Police Service of Pakistan, had said that the junior VVIP got special
treatment because of his father. “How would have we known
Arsalan had he not been the son of the (deposed) CJ?” said Sherpao when
asked by The News here Saturday if Justice Iftikhar had ever used his
influence to get extraordinary treatment for his son. Without commenting on
the question if the interior ministry is not required to be charge-sheeted
for doing the undoable for the CJ’s son, he said his ministry did not
violate any law as Arsalan was never inducted into the Police Service of
Pakistan. Sherpao said that Justice
Iftikhar was in full knowledge of what the government was doing for his son.
To a question, the minister said that both the father and the son asked the
government for the favour. “We had made it clear that Dr Arsalan could not
be inducted into the police service,” the minister said. After serving in the
police only for a month or so, Dr Arsalan resigned from his job when
Musharraf sent a reference against his father in 2007. Then he tried his
luck in business and did amazingly well. According to a recent interview
with The News, the CJ’s son said he is into construction and
telecommunications businesses and earns reasonable profits to finance the
foreign visits of his family members. He said that his business value is
Rs900 million, it has more than 400 employees and has paid Rs2.2 million and
Rs3.2 million as tax in 2011 and 2010, respectively. Family friends of CJ and
those who have met Arsalan during the Lawyers’ Movement term him “a
soft-spoken and nice guy”. Malik Riaz, in his written
statement submitted before the SC, stated that he spent a total amount of Rs
342 million on the chief justice’s son Dr Arsalan. He wrote that Dr
Arsalan had assured that he would help resolve the pending cases in the
court but did not get any relief despite the money spent. “Dr Arsalan
Iftikhar not only cheated me, my son-in-law but also committed fraud,
extortion, and other offences under the Prevention of Corruption Act and the
offences falling under the NAB ordinance.” In his interview published
in The News on June 7, 2012, he categorically denied that he received even a
single penny from Malik Riaz. “My father’s track record is before
everyone. He is a man who can’t be approached,” he said, adding if the
claims of Malik Riaz are correct about paying or benefiting him to get his
SC cases settled in his favour, then why did it not happen even in one
single case? Arsalan categorically said he had never met Malik Riaz in his
whole life but was trapped by a friend, who was requested to arrange his
foreign tours for which he was to pay him back upon his return from each
tour. Arsalan admitted that Ahmad Khalil, his friend who he believed trapped
him, has been asking him to talk favourably to the chief justice about Malik
Riaz’s cases but he never acceded to such requests because, he said, he
knew his father would never entertain such requests and has always decided
cases on merit.
Our
hypocritical polity From moralising to
self-righteous claims to references to pristine Islamic past to overt
recourse to Objectives Resolution in the various judgments issued by the
Supreme Court in the last three years, it was only a matter of time that a
copy of the Holy Quran was brought to a court room. The whispering campaign
prior to this appearance further necessitated this since there were obvious
references to Hazrat Umar and even the Holy Prophet (PBUH) and his daughter
Fatima, and their impartial dispensation of justice. Within days, the real
estate tycoon who had accused the son of the chief justice of being involved
in a financial scam also carried a copy of the holy book to declare that his
version of events is as sanctimonious. It’s a matter that now
lies before the Supreme Court and, in a substantial way, involves the very
court itself but the principals have decided to ignore the supremacy of the
law and constitution and take refuge behind a purified religion to establish
their innocence [remember Malik Riaz’s pleas of mercy from God]. The code of conduct for
the judges lies equally ignored while other yardsticks of moral authority
are being accepted. In a rather sad and
ironical way, things have come full circle. This seems a logical conclusion
of the worldview espoused and projected by one virtuous institution that
held every other institution as lowly and corrupt. Indeed, it spoke through
its judgments. And while doing so the human rights framework laid down in
the constitution did not suffice; the Islamic provisions were invoked and
generously so. In the NRO judgment, a
sufficient case was made against the ordinance for being discriminatory and
hence unconstitutional when Justice Ch Ijaz Ahmed deemed it fit to add an
additional note. A few sentences from the beginning of his note may be
enough to give a sense of what would follow: “Legislative history/past
events are relevant for interpreting constitutional provisions on the
principle of historical modalities. The Muslims had ruled subcontinent for a
considerable period. During the period of the Muslim rule, subcontinent was
rich in all spheres of life. It is interesting to note that rate of literacy
was very high above 90 percent… Even otherwise subcontinent was known as
the richest part of the world...” He then moves swiftly
between the superiority of Islamic legal system and Mughal sense of justice
and Objectives Resolution and the Islamic provisions of the constitution
with equal ease, spending quite a few pages on the definition of amin and
morality etc. When all is said and done,
this additional note is as much a part of the jurisprudence as the earlier
one and can be invoked with mixed results. Indeed, one sees some echoes of
it in the short order of the Arsalan Iftikhar case where religion takes
precedence over the code of conduct. It thus begins: “We may
note that being believers and faithful to the Almighty Allah and the Holy
Prophet Hazrat Muhammad (PBUH) in the presence of Quranic injunctions
(4.135) where it is strongly held that we should stand firmly for justice
even against ourselves or our kin etc. There are glorious examples in the
Islamic history that whenever there was a call to administer justice there
had been no distinction between the nearest one and the general public. In
as much as during the days of Khulafa-e-Rashideen sentences were invoked on
the direction of father to his son… and there are also judgments, (precedented
law) which leave it for a Judge to decide on a Bench to hear a case or not.
Undoubtedly, the superior judiciary in this country is also guided by the
code of conduct of the Judges and they are bound to follow the same.” The language of Article
IV, on the other hand, is clear: “A Judge must decline resolutely to act
in a case involving his own interest, including those of persons whom he
regards and treats as near relatives or close friend...” While referring to the
prime minister’s oath in the Implementation of NRO case, Justice Asif
Saeed Khosa dwells at length on what the Quran says about using Allah’s
name in an oath and then moves on logically to quoting the Article 62(1) of
the Constitution “A person shall not be qualified to be elected or chosen
as a member of Majlis-e-Shoora (Parliament) unless… he is sagacious,
righteous, non-profligate, honest and ameen, there being no declaration to
the contrary by a court of law.” These articles (brought
under Ziaul Haq’s active or ‘spiritual’ supervision) were allowed to
remain in the constitution untouched for obvious reasons. But recent years
have seen exceptional developments including a suo moto notice to a woman
actress for carrying two bottles of alcohol on an inter-city flight. Somehow, in our
hypocritical polity, the emphasis on shariah and corruption remained
directly proportional to each other; till we reached the point where
examples of pristine glory of early Islam have come to haunt those who used
them the most.
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