In a perfect world

June 12, 2012

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In Pakistan narrative trumps fact. Its juicy gossip we’re after. A thrilling story. When simple truth does not suffice, a ripping good yarn takes precedence. In the case of Dr. Arsalan Iftikhar, with reports surfacing of detailed ‘dossiers’ of information stretching over two-three years, the possibility of a grand conspiracy against the judiciary seems all the more likely. Though the Pakistan Tehreek-i-Insaf has levelled the blame at the Federal Government, the more likely candidate is surely elsewhere. It’s no secret that Malik Riaz’s deepest connections are far more institutionally entrenched than mere politicians, who come and go with the tide.

It is important to note, however, that at the heart of all these distressing narratives there are allegations of illegality and impropriety at the highest levels. With public confidence in the legal system as a whole already at a low, it is critical to maintain the perception of integrity which the Supreme Court currently enjoys, lest the whole edifice come crashing down around us. Unfortunately, the manner in which the process is being handled leaves it open to further criticism.

The single most problematic issue in ‘Family-gate’ is the initiation of the suo moto case by Dr. Arsalan Iftikhar’s father. Even though the Chief Justice has already stepped down from the bench hearing the case (which was the correct thing to have done in light of the Code of Conduct), there will always remain the possibility of an allegation by those who wish to malign the Supreme Court, that the initiation of the inquiry pre-empted a full and forthright investigation into the matter by the concerned authorities. This is now a moot point, since very little can be done about it at this stage. It is unfortunate though, that should the apex Court come to a final decision and then further evidence come to light, it would be put in a very embarrassing position indeed.

The other issue, though more complex, is remediable. The problem is that from a legal perspective, there are three distinct allegations at play. Firstly, there is the question of whether or not Dr. Arsalan Iftikhar accepted monetary favours in exchange for attempting to influence the course of a judicial decision. Next, whether Malik Riaz, either himself or through people acting on his behalf, attempted to influence the course of a judicial decision by giving monetary favours. The final allegation, and the only one of national importance, is whether or not an apex Court decision was in fact influenced in any way. Problematically, the third issue can only be determined once the first two have been decided. Perhaps it is for this reason, that the Supreme Court is collectively hearing evidence in relation to the scandal under its suo moto jurisdiction.

Since suo moto proceedings are essentially discretionary (as Supreme Court decisions have indicated in the past), propriety demands that they should be resorted to only when the legal process has been frustrated. In the present case, the legal process has not yet been given a chance. It seems to me, that the proper course of action would be to initiate criminal proceedings against Dr Arsalan Iftikhar, Malik Riaz and the individuals who purportedly acted on behalf of the latter. Thereafter, an inquiry should be held, not by serving, but retired judges, into the question of whether any influence was at play in the relevant Supreme Court decisions, no matter how unlikely this may sound. In the meanwhile, the Chief Justice should recuse himself from all matters having any possible nexus whatsoever with the allegations made. This appears to me to be the only way to once and for all, pre-empt any possible allegation of impropriety which may be made in the future.

When faced with a truly challenging situation, it is only natural to balk. The Supreme Court finds itself within such a morass now. But it is only by wading through the thicket that we can cut a path for others to come. What we need from the Supreme Court today is a precedent for the future. An example of how things will be handled differently from now on: in a manner which is both ethically unassailable and legally principled.


The writer is a lawyer practicing in Karachi.


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