An embattled court

Was this an opportunity lost?

The honourable Supreme Court of Pakistan has handed down a judgment disposing off the suo moto case concerning allegations that Dr Arsalan Iftikhar took bribe-money from Malik Riaz, on the promise of yielding the real-estate tycoon favourable verdicts in cases pending before the apex court. And as a result of the judgment, a considerable section of our civil society and media, along with majority of the lawyers, have breathed a sigh of relief.

But it needs to be asked: was this sigh of relief a function of judiciously having found out that the court’s name and reputation had not been sold by a ‘prodigal son’, or is it simply a sigh of relief on having avoided an embarrassing impasse, regardless of the illegalities committed by the persons involved? In order to asses this, a closer look is required at the judgment, its reasoning, and its conclusions.

The honourable court has delivered a very wise judgment that disposes off the controversy, without concluding on the veracity of the underlying issues. In terms of specifics, the judgment adopts the following line of argument: 1) it starts by stating that the events of this case are holding field in the backdrop of the lawyer’s movement of 2007, 2) it quotes excerpts from the statements filed by different journalists, 3) it states that Malik Riaz has himself admitted that he “did not get any relief whatsoever in the suo-moto/ human rights cases pending before the court contrary to the assurances made by [Dr Arsalan]”, 4) it declares that this admission is sufficient to cast away any doubts on the integrity of the court, 5) it criticises the role of media in creating hype, 6) it declares that since there is no proof of the court having been influenced, the issue of “national importance” stands resolved, and directs the Attorney General to pursue the matter against Malik Riaz and Dr. Arsalan and 7) it concludes, once again, with a reminder of the lawyer’s movement and its gains. Oh, and as is becoming customary in recent SC judgments, the decision is also punctuated with poetry.

First thing first: the judgment reads less like a jurisprudential discourse, and more a statement aimed at defending the legitimacy of the court against “unconstitutional forces bent upon undermining it.” And this defence of the apex court is mounted on the echoes of the lawyer’s movement. While the events of 2007 and the resulting lawyers movement was a defining moment in our judicial and national history, it should not be mistaken for an overarching license that can be used, from hereon end, as a shield against every possible suspicion (whether warranted or unwarranted) regarding judicial virtue. In order for the judicial organ of the state to command sustainable authority, its legitimacy must emanate from the impartiality of its verdicts, and not from some event in history that took place many years ago. Each judgment of the Court either strengthens or squanders the legitimacy and moral authority of law. Linking such authority to some event in the past, each time the court is embattled, draws attention to the fact that circumstances and an accident of history, not some inherent virtue, necessitates obedience to judicial verdicts. The hangover of the lawyer’s movement, while prevalent among some lawyers and the bar, should not seep into the judicial mindset.

Furthermore, disposing off the case based on the assertion that under Article 184(3) the court generally refrains from exercising ‘inquisitorial powers’, seems incredulous to anyone who has been following the magnificent work that the honourable SC has done in the recent past in exercise of Article 184(3). In fact, many a times (during the NICL scam or Haris Steel case, for example) the apex court has made observations that were it not for the exercise of inquisitorial powers under Article 184(3), the responsible individuals would not have been brought to justice (through the regular trial process). Let us close our eyes and imagine for a second that the scam had related to Malik Riaz paying bribes to a son of some prominent politician in order to influence state’s executive authority – would the inquisitorial powers still not be exercised? What has been the history of such scandals?

This combined with a castigation of the media on not having checked the veracity of the allegations, makes the point deeper. While there is no denial that media, in all instances and all news stories, must hold itself to a higher standard of professional ethics, is it not true that similar (not-well-researched stories) in the newspaper or television (by the same anchors) has caught the attention of the SC in the past and resulted in long drawn-out inquisitorial proceedings? And has the apex Court, in such instances, not praised the media for bringing the issue (though without doing all the necessary background checks) to the court’s attention? If so, then the only difference in the media reporting on other such stories and this one, is that this instance involved a possible blemishing of the apex court’s reputation. And if this is the only difference, then admonishing the media in this case alone, and not the others, fuels the voices within our society that (perhaps wrongly) question the unbiased dispensation of justice in our system.

In many ways, this has been an opportunity lost. The court, possessed with the matter, could have (once and for all) settled its impartiality and established its credence through this case. This was an opportunity to demonstrate that the honourable judges of apex court, each equal in voice and authority to the other, hold institutional legitimacy above all personal and professional concerns. It could have been settled that the apex court would employ the same degree of enthusiasm in probing a matter that concerns their own reputation, as it does with matters concerning other institutions. And this could have been easily established through a thorough investigation of the matter, and a decision on merits.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]