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Test for Pakistan judiciary: Arsalan Iftikhar case
Dr. Javid Iqbal
Justice Khilji Arif Hussein’s note sums up the case, “While we as judges are particularly in the public domain, all persons exercising state functions are in the eyes of the people. Although family members of public functionaries are, properly speaking, not performing state functions, the alleged facts of this case highlight the necessity of extreme caution and discretion in their private and public dealings and conduct”. That Arsalan Iftikhar…son of the person referred to as Pakistan’s most powerful Chief Justice ever…Justice Iftikhar Chowdary has not exercised the needed caution, in his dealings with a business tycoon of doubtful character, is apparent. Across the subcontinental borders, family members of state functionaries dwelling in democratic institutions—the political executive, the legislature, and in judiciary are known more by the violation of established norms, rather than by observance. So, Arsalan Iftikhar might not be an exception. By the indiscretion exhibited, he has brought his father, several notches down in the esteem he was held in. His judicial activism though, often getting beyond the logical, the reasonable limits was however looked with disfavour, especially by sections of civil society opting for civilized norms in administering justice, rather than make an exhibition of it.

Subcontinental countries—India, Pakistan, Bangladesh, Sri Lanka are known for needless activism and going beyond civilized norms while practicing democracy and in handling democratic institutions…be it the political executive, the legislature or judiciary. Some judges in recent years have exhibited a measure of activism in India too. However, Justice Iftikhar Gilani of Pakistan, it seems has crossed all limits. While it is alleged that chief of state in Pakistan—Asif Ali Zardari has siphoned off money to Swiss banks, the manner of handling the case by judiciary leaves a lot to be desired. An investigation was on, however Pakistan’s former President—General Musharaf issued ‘National Reconciliation Ordinance’ [NRO] meant to clear the deck for Benazir Bhutto’s re-entry into Pakistan’s political scene. The reconciliation, it is rumoured was American channeled.

Benazir’s unfortunate assassination led to chain of events, Asif Ali Zardari emerging in the forefront of Pakistan Peoples Party assumed power after Musharaf was swept away by unprecedented and relentless lawyer’s movement backed by masses. Justice Iftikhar Chowdary was at the core of this movement, as his judicial activism upset Musharaf and led to termination of his tenure as chief justice. Thenceforth restoration of the embattled justice became the slogan of the movement. Incidentally, Asif Ali Zardari remains as fearful of Justice Iftikhar Chowdary as was Musharaf. The justice had taken to hate NRO…an ordinance in defence of Zardari. As Asif Ali Zardari became president, he claimed immunity from judicial perusal of money laundering case. Zardari nominated Prime Minister—Yousuf Reza Gilani refused to oblige the Supreme Court, as the apex court insisted on dispatch of latter to Swiss authorities to probe Zardari’s alleged accounts in Swiss banks. Gilani censored by judiciary had no option, but to resign. In between a chain of related events, Arsalan’s case up, catching his father, feathered with unprecedented judicial activism on the wrong foot.

The question arises…has the Chief Justice who is virtually breathing down the spine of Pakistan’s political executives, delivered justice, while dealing with the case of his son. The final delivery may be much away, however has the Chief justice been fair in preliminaries, while handing over the case to the attorney general, an executive appointee? Attorney general is a part of the same executive, which has been subjected to judicial censor. Comments Asma Jehangir, Pakistan leading lawyer and widely known Human Rights activist, “This appears illogical, as he represents the very executive that is suspected of hatching this sleazy conspiracy”. Asma questions, Will Arsalan Iftikhar get justice from such an executive? She suggests that, “The SC should have given the matter greater thought”. Asma’s contention is understandable; in her question “if Arsalan Iftikhar is indeed guilty of misdeeds would an already beleaguered executive dare say so and be believed,” lays implied her two pronged fear…executive may not dare to say it, fearing severe reprisal, as also the fear that the executive tale even if true may not be believed, it may be taken as trying to get even with judiciary, which has given the executive many sleepless nights.

There is a widespread feeling in Pakistan’s legal fraternity implying that a dubious business tycoon has been set up to defame the judiciary. Such an implication has been questioned by many, including Asma Jehangir. What is in question first and foremost is that---is it conceivable at all for a businessman to take the huge risk of exposing the son of Pakistan’s most powerful chief justice ever? Two, even if he did take the risk being assured of firm backing by those craving to get even with Justice Iftikhar Choudhary, why Arsalan fell prey to designed machinations? However the speculation of the frame-up has many backers. Asma Jehangir call it entirely possible, based on her admission that Supreme Court has irked the government and most recently the establishment too. The frame-up was planned, such an inference Asma believes could be drawn, as the tycoon claiming to have documented each transaction. Why did he document it? The reason could be collecting as much evidence as possible, evidence that honourable court would find difficult to refute.

A contrary view emerges, the businessman might be dubious given the speculations vis-à-vis his possible backers, does it or should it all absolve Arsalan? If the businessman is dubious, so is Arsalan’s accumulated wealth. Pakistan’s Supreme Court did describe the matter as of, “gravest national importance”, however it stopped short of taking a pro-active view, which has been a feature of it lately. Otherwise, handing over the matter to attorney general might have sounded reasonable course to follow. It alludes to the old maxim…Justice should not only be done, it should seem to be done. Unfortunately Justice Iftikhar Choudhary might have fallen prey to the net of his own making…judicial activism beyond logical judicial limits. In his son’s case, he might not have been judicious enough, speculate many in Pakistan.

There are judicial issues in Pakistan, beyond this case, however relevant to it. The prime one remains taking suo motu cognizance of cases. Many in Pakistan believe, and that includes Asma Jehangir that standards applied in the selection of suo motu cases, the admissibility of cases under Article 184(3) and the processes adopted do not follow similar criteria. A twin factor is involved, the role of media in public projection of an issue and judicial cognizance of the projection. While it is recognized that in a democracy media cannot be regulated, as to lay down what to say and what not to say, it could be expected of media to behave reasonably. Not for nothing has media been called the fourth pillar of democracy. It may not be a noted fact in constitutions framed around the world; nevertheless it is taken as such. Media in civilized democratic societies is expected to evolve its own code of conduct and abide by it. In Pakistan many believe that media has gone bizarre with the total freedom to do its bidding, without taking due care of reputations of people under media trial. There is indeed a thin line dividing freedom of expression and the responsibility that goes with it. And there are many in Pakistan with the perception that media might have been provided the rope to hang itself with. The recent exposures are evident; there are skeletons in media cupboard too.

With Arsalan Iftikhar case coming to the fore, the misery that Pakistan is living through is apparent…skeletons in cupboards of high and mighty multiply with every passing day. In recent past, in cases judiciary has taken suo motu cognizance of media projections. Nothing could sum it up as comprehensively as Asma Jehangir has done in one of her recent articles in Pakistan’s leading newspaper—Dawn. Notes Asma, “The judiciary remained the only institution in which people put their faith, over the years that too has eroded”. Asma reserves harsh comments for judiciary, “Many judgments appear self-laudatory and judged with different yardsticks. Those who follow constitutional rulings may disagree on every aspect of the judgments delivered by the Supreme Court (SC), but there is ample evidence to show that the standards applied in the selection of suo motu cases, the admissibility of cases under Article 184(3) and the processes adopted do not follow similar criteria”.

On that note we may concluded, by adding that while it appears late, it may not be made too late for the reversal of the trend that has had Pakistan’s democratic institutions touch the nadir…the all time low. Arsalan Iftikhar case is indeed one of the stern tests, if not the only one.

Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]

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News Updated at : Sunday, October 14, 2012
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