In a perfect world
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.
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.
Yusuf Nasim has expressed his views in his blog. Everyone has the right to agree or disagree with him. If anybody disagrees with him he can propound his arguments for or against the writer. Just the sweeping remarks against the writer or the court are not the desirable things to do. Let the court deal with the case. Pakistani public has the full confidence on the present judiciary and feel that justice will prevail.
Here most ppl requesting CJ to resign, unfortunately the future looks faded without CJ as he is the only one taking difficult decisions. i strongly object the idea of resignation as that would put judiciary on reverse track
It looks CJ is indirectly involved in this corruption.
If this was a progressive country CJ would have resigned by now.
In my opinion the best thing that can be done by the chief Justice of Pakistan is that,that he should resign and rest of the Honourable Judges should hear this case. It will restore people's confidence upon Judiciary and Chief Justice of Pakistan. If Arsalan Iftikhar is guilty, he must be punished and if there is some conspiracy against the chief Justice and Judiciary then the conspirators must be unveiled and their face should be brought before the people of Pakistan.
I think CJ son is corrupt like most of the people in Pakistan and CJ knew about it
the people who criticise CJ do not know his integrity. He is the man who does not have any political or financial gains. He had taken a bold stand against Musharref and he is standing against the corrupt ruling mafia. He will emerge victorious. The matter will definitely be reffered to NAB or FIA if the need be. we must keep our faith in the one and only institution-judiciary in Pakistan. it will not let us down.
Excellent article. The only way to 'trump' the grand conspiracy is to conduct an impartial investigation. But this has been ruled out via the suo moto. I don't understand how their lordships can even contemplate over-riding an investigation in a case such as this. Even if the CJ has recused himself, doesn't there still remain an institutional conflict of interest. Shouldn't the Supreme Court, in toto, recuse itself to achieve any semblance of transparency. Or is this such an ephemeral attribute that we clutch at any straw, thereby failing to see the forest for the trees?
strict implementation of a law is the biggest cause of its failure
in an emerging democracy and an undeveloped country applying extremely high standards of honesty and integrity on government officials and ministers can only result in chaos as is evident now
ironic but true
Now it known that CJ knew about this 6 months back. Suddenly why this sue moto. Asking Malik to show tax details. Not asking fromArsalan any details how you got all the money. Now it is very clear. The way Arsalan speaks,he pretends to be honest. A really wondeful person.
good article and mostly good comments. only a few left to still recognize law in all this chaos.
3 … The Big ones at Security Agencies have got an excellent opportunity to payback to CJ & his Judicial Cartel for projecting our country's elite security agencies as criminal gangs and human rights violators all over the world including for releasing of murderers/terrorists of lal Masjid, LeJ, TTP and so many others; go ahead, nation is with you for all your sacrifices and pains that your jawans and officers have endured in last so many years.
Some Recommendations to those in power, politics and also to unfortunate Pakistanis:
1 … As 7 -8 Judges in SC (Choudharys, Ramdays, Khosas, Khawajas, Khiljis etc) are acting as a Judicial Cartel, it is time for the honest few amongst the remaining to come forward and clean the judiciary through judicial revolt while those unfortunate over 60 judges who lost lifelong careers including Kurds, Tariqs, Ahsans, Munirs etc of the bar will follow suit by breaking their silence; coming Friday's meeting is the God given opportunity.
2 … The govt should intervene in Arslan's case by launching its own investigation and keep it dragging till coming elections while NAB doesn’t need anybody's direction to initiate one at their own; Mr. President you have all the rights and legality now to do so.
Contd…….