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Thursday, June 21, 2012


(JUNE 20, 2012)


The President has taken it for granted that he enjoys immunity without even formally claiming it in a court of law. He thinks and behaves as if he is above the law.

The Speaker of the National Assembly declined to ruled that as a result of the conviction of the Prime Minister a question had arisen whether he has become disqualified from being a member of the Parliament. She declined to send the matter to the Election Commission as per Art.63 (1)(g) (2).

The National Assembly passed resolutions reposing confidence in a convicted Prime Minister and supporting the Speaker’s decision not to send the matter of Prime Minister’s disqualification or otherwise as a member of National Assembly to the Election Commission.

The Prime Minister did not consider his conviction by the Supreme Court in the contempt of court case as a sufficient reason to step down and had to be disqualified, on June 19, 2012, by a three member bench of the Supreme Court with effect from April 26, 2012. Hence Pakistan does not have a Prime Minister or Federal Cabinet.

A reporter enquired from Winston Churchill in the midst of the Battle of Britain as to how the United Kingdom was faring during those dark hours. Churchill responded by asking: “Are the courts working?” “Yes”, replied the reporter. “Then Britain is fine,” said Churchill confidently.

Nations have overcome extremely difficult, challenging and threatening situations with healthy, strong and vibrant state institutions.

Although the history of Pakistan’s superior judiciary in dealing with politico-constitutional matters had hardly anything to be proud of, still the restoration of pre-November 2007 Supreme Court Judges in March 2009 created the hope that a new era of the supremacy of constitution and rule of law would dawn in the country.

But what one witnessed since then was a game of hide-and-seek between the superior judiciary and the executive. The executive successfully dilly-dallied implementation of the Supreme Court’s directives in a number of matters, as a result of which the confidence of the people began to erode in the efficacy of the legal system even under restored superior judiciary.

Apparently, the Supreme Court was in a fix. If it issued directives to improve governance in specific areas, it undertook the risk of encroaching upon the domain of the executive. If it took up politically sensitive cases, like that of May 12, 2007 mayhem, and passed orders, it feared backlash from political forces.

It was determined to not take upon itself the blame for derailing the democratic system.  In order to avoid outright clash of institutions, the Supreme Court moved calculatedly and acted selectively on different issues.

It was a tight-rope walking between judicial restraint and activism.

Simultaneously, their lordships understood that the people were getting disillusioned with the Supreme Court and wanted results. Even protracted proceedings had to come to an end.

The conviction of the Prime Minister in the contempt of court case by the Supreme Court, and its observations and directives in the missing persons’ case caused considerable embarrassment to the executive and the military establishment respectively.

Although at times the Supreme Court appeared helpless in getting its orders and directives implemented, its proceedings and their lordships’ observations were widely reported in electronic media and contributed to the shaping of adverse public opinion about the government and military-controlled intelligence agencies.

And now we have this so-called bombshell in the form of Malik Riaz’s charges against, Doctor Iftikhar Arsalan the son of the Chief Justice, that the latter is ‘a don who blackmailed him and his relatives into giving nearly Rs.320 million apart from other benefits.’

The charges against Arsalan Iftikhar have, just by virtue of his office, cast direct aspersions on the person of the CJP Iftikhar Muhammad Chaudhry who holds the most respectful office, and the Supreme Court of Pakistan, which is the most sacrosanct state institution.

If due to any reason one’s reputation is tainted, it becomes extremely difficult to exercise moral authority.

There are reasons to believe that the Chief Justice was informed by different persons about the activities of his son, including Barrister Aitezaz Ahsan. He does not have excuse that he was completely unaware.

It may progressively be a challenge for Honourable Iftikhar Muhammad Chaudhry to lead the Apex Court in future with same dignity and sense of purpose, however, his decision of June 19, 2012 does show otherwise.

That said, virtually the executive-legislature combine and the judiciary are at loggerheads on more than one issue.  The bars are on the streets. What if the lawyers get divided into hostile camps or cracks appear within the benches? Whither the respect of black coats and robes if this happens?

Yet another casualty of Arsalan Iftikhar affairs is the media. Some anchors are virtually at each other’s throats. Those who used to deliver lectures from high pedestals are rubbing their noses in the dust. The people are aghast to learn that those who gave lofty sermons had their price tags.

Apparently Malik Riaz’s allegations aimed at not only disgracing the Chief Justice but bringing into disrepute the august institution of the Supreme Court, at a time when the Supreme Court was seized of the matters of the National Assembly Speaker’s decision not to send the question of the Prime Minister’s likely disqualification to the Election Commission (hereafter referred to as the Speaker’s ruling case) and the picking-up and killings of Baloch nationalists allegedly at the hands of the FC.

The people had a rude shock when they came to know of Malik Riaz’s charges against Arsalan Iftikhar. The Chief Justice immediately took suo- moto notice of the matter, but it seemed that the damage to his reputation had been done. There came reports that some individuals, including Barrister Aitzaz Ahsen, had cautioned the Chief Justice about the activities of Arsalan Iftikhar months before Malik Riaz’s ‘disclosure’ but the Chief Justice had ignored their advice.

The airing of the controversial footage of conversation between anchors (Mubashir Luqman and Meher Bukhari) and Malik Riaz, recorded before the beginning and during the commercial break of Malik Riaz’s interview to Dunya channel, came as a God-sent gift to the Chief Justice and the Apex Court.

Most of the other channels projected the interview as ‘fixed’ with ‘planted’ questions solely meant to discredit the Supreme Court. This was like reading too much in the episode but the Chief Justice got something to fall back upon.

As things stand today the Supreme Court has directed the Attorney General to investigate the charges against Arsalan Iftikhar. It has called the above mentioned interview of Malik Riaz a conspiracy against the judiciary without clearly pinpointing who was its author.

It was certain that the Supreme Court will expedite the proceedings in the Speaker’s Ruling Case and deliver its adverse judgment within days and that has come to pass.

Unusually the Supreme Court Judges watched the controversial footage of Dunya TV in the presence of media and the same was telecast from different channels.  

Although internally the lawyers are divided and confused, they are on the streets condemning what they term as an attempt to malign the Chief Justice and an assault on the independence of the judiciary. There is an effort to enact the scenes of 2007 when the Chief Justice was removed by a military dictator, yet as of now the same enthusiasm is lacking.

The ruling coalition led by the PPP has declared the action of the Speaker of the National Assembly in not sending the matter of the Prime Minister’s disqualification to the Election Commission as justified and has declared that the government would investigate the Arsalan Iftikhar affair to find out the truth.

No doubt in a country like Pakistan one cannot rule out the possibility of a conspiracy against the apex court hatched by the quarters that are not happy with the present Chief Justice and have reservations about some of the orders and directives of the Supreme Court.  

That said, conspiracies usually take place when there are some weaknesses in those against whom they are aimed at. What may come next for the Chief Justice, may be a matter of conjecture but there is lot of room for it and potential too.

The questions arise: First, what if more allegations with incriminating evidences, including videos and audio recordings, against Arsalan Iftikhar come to light? Secondly, will the things be the same again even if without further damage the dust settles down?   

A dispassionate analysis of the crisis would suggest that the maintenance of the moral authority of the Supreme Court is of paramount importance. Prima facie the Chief Justice could not have been completely ignorant of his son’s activities, especially when the Chief Justice’s other family members had, allegedly, also enjoyed lavish stay in London.

The Supreme Court is an august body. It does not look nice if it indulges in populism or politicking, directly or through bar councils and media.

The impression that their lordships have started enjoying projection on electronic media, often their remarks during the proceedings appear as if they are meant for public consumption, is not going well with the people.

We know for certain that within the bar there are lawyers loyal to different political parties and if the crisis continues, it is very likely that bars may get divided into hostile camps. Within the benches also there is no surety that all judges consider Chief Justice above reproach.

In due course cracks may appear within the benches also. Pakistan cannot afford the casualty of another state institution. The judiciary should not get polarized or politicized.

It is also important that the Supreme Court should do some introspection to see if it has come to the expectations of common man in other respects. As an institution, the Judiciary has failed to dispense cheap and prompt justice. The backlog of cases casts a bad impression. The High Courts have not fulfilled their supervisory role over their respective subordinate courts properly.

The rampant corruption, miscarriage of justice, delayed and poor quality of judgments at lower levels make a mockery of the judicial system in Pakistan.

It is time the superior judiciary gave more importance to the hardship of common people and reform the whole system instead of focussing only on high profile cases.

The people have had overdose of politics, they yearn for solution of their everyday problems which have direct impact on their lives. This is the essence of what Churchill had meant when he said: “Then Britain is fine.”


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