The CJ, the doc and the suo motu

One can accuse Pakistan of being many things—but you would be hard pressed to credibly allege that it is a place that is uneventful. This, of course, may not always be a good thing. One is reminded of the Chinese curse, “May you live in interesting times”.
Following a YouTube video and what many have referred to as a “whispering campaign”, we have seen developments that have caused dances on the Richter scale. After Mr Mansoor Ejaz’s “Nasty Nancy” wrestling video, Mr Sehbai’s interview has had telling effects on Constitution Avenue and beyond.
When first rumors of the allegations against CJ’s son circulated it should have been clear to most folks that this would result in a suo motu action by the Honorable Supreme Court. I commented, to friends and on social media, that though the CJ will eventually recuse himself, commentators will draw analogies with days of the Islamic Caliphate and examples from the days of Hazrat Umar will be thrown around. The fact that such outcomes are predictable can be depressing—the saving grace is that they are based on a realistic view of how our society approaches issues.
Even if there had been no Code of Conduct for judges, mere convention of appearance of impartiality dictated that the CJ should not be on a judicial bench hearing a case involving his son. Faith in ability and integrity has little place in such matters. People who commented that the CJ should continue to hear the case because “we have full faith in him” were inviting disaster. Such logic would mean that any clear conflict of interest, be it involving a legislator or even a government servant, should become irrelevant if “enough” people say they don’t have an issue with it. Of course a sizeable but lesser number who would express doubts then lose out and so do the requirements of a system. The act of recusal, therefore, should not just be welcomed but must be reiterated as a necessary one.
The fact that suo motu action was taken has been celebrated by many. Perhaps justifiably so. But a realistic, and some might say cynical, world view suggests another answer: it had to be done. There was no way out. Institutions, and personalities, often become victims of their own success and policies. The suo motu action is an extraordinary step but it has been used frequently by the present Supreme Court/CJ. Once this no longer remained an infrequent action and a case like this hit the town, the CJ simply had to take suo motu to keep intact the reputation of his own person as well as the Supreme Court. Context is everything: a Lawyers’ Movement, a populist Supreme Court in the aftermath trying to assert itself as non-corrupt compared to a political government and there you have it. Therefore, a realist might argue this: forget “Insaaf” and “justice”, this is about maintaining a reputation (even appearances), this involves politics and ambition of remaining relevant. A populist politician pushing a policy, while battling a complex past, would be forced into at least appearing to apply his policy even if it affects his personal interests. If he doesn’t, he becomes irrelevant. As long as the appearance remains, whether of justice or anything else (depending on the context), so does the relevance.
This matter of appearance will be telling in the coming days as this saga unfolds. The CJ is no longer on the bench but the Honorable Court has, reportedly, raised a number of issues concerning Mr Malik Riaz. It would be deeply unfortunate if instead of exploring the real issues, the Court adopts a stance that seeks to discredit Mr Riaz (based on his past, tax return record et al). The Court must not act as an entity prosecuting Mr Riaz for his past. That is not the issue here. Unfortunately, there will be no shortage of people who will celebrate Mr Riaz’s trial—a trial of everything he has allegedly done. No lawyer or rational citizen can or should find that acceptable. Anchors calling for it deserve to be made irrelevant in this discourse.
Is this a PPP conspiracy? We will find out in due time but I am willing to suggest that close to the elections a ruling party would gain little by hatching such a conspiracy. Now there are even reports that Mr. Riaz has denied the whole thing. A number of institutions, including the powerful spy agencies, are clearly irked at the Supreme Court too. Could this be a signal from them that the balance of power needs to be restored? The democratically elected Executive in Pakistan has almost never been in a position to meaningfully dictate things to our apex court. That has happened in other instances involving the men in khaki. Is there a “switch in time” that the powers that be are hinting at? I use that phrase, of course, by borrowing it from FD Roosevelt’s battles with the US Supreme Court.
Dr Arsalan Iftikhar has been in the news earlier too—for the wrong reasons. Thanks to Mush’s horrible actions, we never heard whether or not the allegations regarding him and those close to him had any credence. Those questions could haunt him and his father—as well as the institution that his father has done so much to raise in the public eye. Let’s not get too excited and hold our horses. Let’s resist the temptation to throw allegations around where our only aid is speculation. This drama of high politics, back room deals, power and ambition should be seen through a realistic lens rather than a moralistic one. Those who are expecting impartial proceedings would legitimately scrutinise the words used by the Honorable Court in this case. The order reads that the Registrar of the Honorable Court took notice of “a campaign against the Chief Justice of the country and his family and the judiciary”. One hopes and trusts that this is not a guiding presumption in this case.
Ambition and power are inevitably cloaked in the garb of legitimacy. Legitimacy relies on appearances till deeper truths are established. The aim here should be seeking deeper truths rather than focusing on mere appearances. There is no shortage of naïve folks who celebrate appearances but hopefully enough of us will refuse to join in such dances.

The writer is a Barrister and an Advocate of the High Courts. He is currently pursuing his LL.M in the US and can be reached at [email protected] or on Twitter @wordoflaw