CAN the son of Pakistan’s chief justice be held accountable for his alleged misdeeds? Can individuals wielding the power of money and allegedly influencing justice be held legally accountable?
Justice Jawwad S. Khawaja and Justice Khilji Arif Hussain, in two judgments (June 14, 2012 and Aug 30, 2012), in the Arsalan Iftikhar/Malik Riaz case, try to address these questions, also implying that judicial independence and integrity were under threat from the influence of personal relations and attraction of money.
Justice Khawaja’s repeated references to the lawyers/judicial movement of 2007-2009, and the judicial events thereafter in his June 14 judgment emphasise that the case was a “matter of the highest national importance” of “the institutional credibility and authority” of the Supreme Court (SC).
Therefore, it was surprising that the mere fact that Malik Riaz himself admitted he was not successful in influencing the SC, including the chief justice, led Justice Khawaja to conclude that his admission “settles the question of public importance”.
But was it not a matter of public interest to know whether Arsalan Iftikhar had indeed misused his position as the chief justice’s son by allegedly accepting bribes, regardless of the SC’s non-involvement? And whether rich people like Malik Riaz can get away with the crime of allegedly attempting to influence the SC? And whether this was indeed a conspiracy against the SC?
Surprisingly, Justice Khawaja ended this “matter of the highest national importance” by issuing vague directions to “set the machinery of the state in motion” against Arsalan Iftikhar, Malik Riaz, etc, to the controversial attorney general of Pakistan (the latter had been removed both as NAB prosecutor and high court judge by the SC itself). With such vague directions to a controversial attorney general there was bound to be further controversy.
Not surprisingly, Justice Khawaja, through a further judgment (Aug 30), had to accept errors in the operative part of his earlier judgment, also noting its violation on grounds of the ‘partiality’ and ‘bias’ of the attorney general, the National Accountability Bureau and the joint investigation team (JIT) constituted by the NAB chairman.
The allegation against the attorney general is based on two grounds. Firstly, if he had disclosed that he had been a lawyer for Malik Riaz previously, the SC would never have given this task to him. In short, since there was a possibility of bias, this disclosure should have been made by the attorney general.
Secondly, the latter had a limited role but in his letter to NAB, he “transgressed” the June 14 judgment by directing NAB to proceed with the inquiry, dictating the composition of a JIT and asked NAB to “send a fortnightly progress report” to his office.
In short, he illegally assumed the powers of the NAB chairman under the garb of the June 14 judgment whereas the SC judgment did not necessarily require an investigation by NAB specifically.
But regardless of the attorney general’s controversial role, it was the SC’s vague directions which allowed the misinterpretation of its order.
As for the allegations of ‘partiality’ and ‘bias’ against NAB, the SC has given three main reasons.
Firstly, the very fact that NAB obediently followed the attorney general’s directions gave the impression that its independence was compromised. (But to be fair to NAB, was the accountability bureau not under the impression that the attorney general’s interpretation of the June 14 order allowed such dictation? Therefore, it is the SC’s vague directions which might have misled NAB.) Secondly, the SC’s own inquiry, its detailed examination of CCTV cameras and the interior ministry’s report, proved that Faisal Memon SP, a member of the JIT, was partial and biased in favour of Malik Riaz but Mr Memon was still included in the JIT by NAB. Despite such bias and partiality, NAB initially supported Mr Memon’s retention to investigate the case.
Thirdly, a vague letter by NAB was addressed to the SC registrar, without specifying the information/documents being requested from him and the reasons for summoning him. (The SC is right in holding that this letter is illegal but is it correct in saying that this raises serious questions about the “fairness, competence and professionalism” of the NAB investigation?)
In view of the above, the SC transferred the investigation of this case from NAB and formed a one-man judicial commission, headed by retired police official Shoaib Suddle, to probe the issue. The SC was correct in doing so. A police or FIA inquiry would have raised the issue of government interference and a judge-based inquiry that of judicial bias.
A few further comments on the SC judgments. Firstly, in the public perception, the allegations against Arsalan Iftikhar are linked with the SC’s credibility. This public perception is an undeniable fact and can only be ignored by the SC at its own peril. Therefore, the court must ensure that Arsalan Iftikhar and Malik Riaz face the full force of the law and are punished if found guilty.
Secondly, the case confirms the public perception that unless one has connections, is powerful or rich, one cannot access even one’s legitimate legal rights in Pakistan.
The SC rightly transferred a biased investigation from NAB to a commission in this case but the real issue is whether scores of ordinary Pakistanis who have faced, or are facing, unfair investigations, would ever be granted such a privilege.
Thirdly, the problem lies not with the formation of the commission but the way it has been formed. Fairness and due process required that the SC should have informed both parties about the formation of this commission and then heard both parties on the nature, structure and composition of the commission.
A thorough and fair inquiry and trial is indeed a litmus test for the SC. The reason for this should be obvious — a judicial system relatively free from the influence of personal relations, power and money is the only judicial system in which the ordinary, powerless people of Pakistan can hope to get justice.
The writer is a lawyer