In the name of impartial justice

Is that how the Supreme Court has found the Attorney General guilty?

The Honorable Supreme Court, in a petition filed by Dr Arsalan to review the judgment dated 14 June, 2012, has announced its order. This order, in summary, encapsulates 1) observations against the Attorney General of Pakistan (AGP) regarding influencing NAB; 2) observations against NAB (specifically, its writing to the Registrar of the Supreme Court) 3) role of Faisal Bashir Memon in the investigation; 4) a reminder, through religious references, for the need to investigate and judge dispassionately; and 5) consequent transferring of investigation of the case to a one-man commission (Dr Shoaib Suddle).

A comprehensive comment on the entire judgment is beyond the space constraints of this op-ed piece. As a result, I will limit myself to only examining the first of these issues: court’s conclusions regarding the conduct of the AGP.

The AGP’s involvement in this case germinates from paragraph 22 of court’s earlier judgment, through which the Honorable Court had expressed its “expectation” that the AGP “will set the machinery of the State in motion” to bring to justice any illegalities committed in the Dr Arsalan saga.

Consequently, the AGP wrote a short (3 paragraphs) letter to Chairman NAB, on 18 June, 2012, reproducing the relevant portion of the said judgment, along with “request” to proceed against any acts of corruption “in accordance with law”. The AGP further reminded the chairman about NAB’s exclusive purview in investigating offences under the NAB Ordinance, and expressed his “expectation” that Chairman NAB “may” constitute “a broad based team”, through the inclusion of “competent and honest officers” from NAB, FIA, Islamabad Police, and may also “consider” including experts on financial crime. The letter urged that the “needful” be done at the earliest, “in line with the letter and spirit of the aforesaid order of the Supreme Court”, and “requested” a “fortnightly progress report” in this regard.

As a novice student of law, I have read the contents of this letter of the AGP a few dozen times, and have been unable to decipher how the honorable judges have imputed impropriety or “transgression” to the AGP. While accepting my lack of wisdom, especially compared to a judge of the apex court, I would nonetheless highlight a few points for consideration.

Starting, first, with the honorable court’s direction that the AGP “set the machinery of the State in motion”; I have never seen the insides of the AGP’s office but, by all popular accounts, there is no red button that sits on the AGP’s desk that automatically sets the state machinery into motion. Neither can he stand at some podium and declare, “I hereby set the state machinery in motion” – oddly reminiscent of ‘kun fa yakun’ (no religious pun intended). He had to write some letter, to some authority, recommending some course of action. And the letter (reproduced in the order) seems to do the minimum possible in this regard.

Specifically, the order takes an objection to the AGP’s use of the word “expectation” in his letter. However, does an “expectation” of the AGP that NAB “may constitute a broad based team” of “competent and honest officers” seem unreasonable or biased? Once again, I admit to not having the judicial wisdom of seeing some latent scheme behind these words, and I hope to be forgiven for such naivety.

“Fortified” by NAB’s constituting such a Joint Investigation Team, the court concludes that there is “reasonable and well founded prima facie basis” that the AGP “did not act fairly and impartially.” In the absence of any hard proof, the judgment makes no allowance (none!) for the possibility of NAB taking into consideration the AGP’s suggestion, independently reviewing it, and then deeming it in the interest of justice and independent investigation.

The honorable court further states that, since the AGP was (half a decade ago) counsel for Malik Riaz in some petition before the Lahore High Court (incidentally, Dr Arsalan’s counsel was also once Malik Riaz’s lawyer), this fact should have been disclosed by the AGP, as a result of which the court would not have “tasked the AGP with any responsibility in this matter”. But isn’t the AGP’s task simply to “set the State machinery in motion”? Is he suddenly also the investigating officer? What part of his (once upon a time) relationship with one of the contending parties, interferes with “setting the State machinery in motion”? As a lawyer, he has known the CJP (and his son) for longer – would this relationship make him ‘prima facie’ biased in Dr Arsalan’s favor? Also, since Attorneys General (all of them) are very successful lawyers before they become Attorneys General, is the court implying that they can never be entrusted in dispassionately representing the Federation of Pakistan against any of their former clients?

Also, is it not the Office of the AGP that was tasked with setting the State machinery in motion, rather than the person of Mr Irfan Qadir? And if the allegation is that behind the veil of the Office of the AGP is the person of Mr Irfan Qadir, who (as a human) could be biased in favor of someone he once had association with, then does this human folly of impartiality not also extend to the office of a judge of the Supreme Court? Should the honorable judges sitting in Dr Arsalan’s case not abstain from sitting in the bench of the honorable Chief Justice (father of Dr Arsalan) till Dr Arsalan’s case is finally decided? And if the answer is ‘no’, because the office of a judge is an impartial office, rising above human bias, then should the constitutional office of the AGP not be imputed the same impartiality?

In reading the judgment, it is helpful to keep in mind that since the Federation of Pakistan was not a party in Dr Arsalan case, the AGP was only present on court call (not as a counsel to any party). No proof of any exerted influence or bias (other than derivations from a seemingly regular letter) has been attributed to him. And he is not the investigation officer (though an official press release by the Supreme Court, in Urdu, incorrectly states that had the court known of Mr Qadir’s previous representation of Malik Riaz, “tafteesh ki yeh hassaas zimadari” would have been reassigned to someone else). Reiterating my lack of experience in law as well as in conspiratory statecraft, I certainly am unable to understand the honorable court’s observations against the AGP.

In a culture that is hypersensitive in terms of its ‘contempt’ radar, I hope that this discussion will be seen in the spirit that it has been authored – a cry for reason by a student of law who has been flummoxed by the court’s judgment. I pray, one day, to be able to summon the intellect and wisdom to understand it.

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]