Pak­istan

The Supreme Court flexes its mus­cles

Southasia - - Contents - By Anees Jil­lani

You may like or dis­like Chief Jus­tice Iftikhar Muham­mad Chaudhry but you can­not ig­nore him. Un­til re­cently, power in Pak­istan flowed from the GHQ and the ISI head­quar­ters. The Chief Jus­tice has, how­ever, proven that the in­sti­tu­tion he is head­ing is not far be­hind.

In just four hear­ings, the Court de­cided the fate of for­mer PM Gi­lani who was sent pack­ing within hours. Sud­denly, Gi­lani’s bab­bling about the in­ter­pre­ta­tion of ar­ti­cle 248 of the Con­sti­tu­tion, deal­ing with the ini­ti­a­tion of crim­i­nal or other pro­ceed­ings against the Pres­i­dent, came to a halt.

Pres­i­dent Zar­dari is of­ten re­garded as a mas­ter player who can out-ma­neu­ver his com­peti­tors, par­tic­u­larly the Sharif broth­ers. Ma­lik Riaz Hus- sain of Bahria Town, one of the rich­est if not the rich­est per­son in Pak­istan, is a force to reckon with. His rags to riches story within a short pe­riod of sim­ply 20 years with just a Ma­tric cer­tifi­cate in hand, has shown our chil­dren that ed­u­ca­tion is not nec­es­sary in or­der to be suc­cess­ful. The com­bi­na­tion of Zar­dari and Riaz was seen as a for­mi­da­ble al­liance against the Chief Jus­tice; and the ru­mors about Arslan Iftikhar’s for­eign trips and ac­qui­si­tions were re­garded by many as fi­nally cor­ner­ing his fa­ther.

How­ever, the Chief Jus­tice over­turned the pres­sure sim­ply by ini­ti­at­ing a suo motu ac­tion re­gard­ing al­le­ga­tions of busi­ness deal­ings be­tween Ma­lik Riaz and his own son for at­tempt­ing to influence the ju­di­cial process; an un­prece­dented move in a coun­try where politi­cians go to any lengths to pro­tect their sons from pros­e­cu­tion.

The suo motu case was ini­ti­ated on June 6, 2012 in re­sponse to a se­ries of talk shows aired on the elec­tronic me­dia in the pe­riod be­tween June 3 and June 6. These talk shows con­tained in­sin­u­a­tions al­lud­ing to deal­ings be­tween the son of the Chief Jus­tice and Ma­lik Riaz. Two lead­ing hosts, Hamid Mir and Kam­ran Khan, in whose pro­grams the al­le­ga­tions sur­faced were called to the Court to record their state­ments. Kam­ran Khan in­formed the Court that an anony­mous phone call in May claimed that Dr Iftikhar was al­legedly us­ing his po­si­tion to ex­tract money from wealthy

peo­ple whose cases are pend­ing be­fore the Supreme Court, in­clud­ing that of Ma­lik Riaz Hus­sain

Ma­lik Riaz ap­par­ently ini­ti­ated the ru­mors by shar­ing doc­u­men­ta­tion show­ing Dr Iftikhar’s sum­mer va­ca­tion trips to Lon­don over the past three years, in­clud­ing ten­ancy agree­ments for five star ac­com­mo­da­tions in Cen­tral Lon­don and Monte Carlo and re­ceipts/ in­voices show­ing pay­ments made from the ac­counts/ credit cards con­trolled by him or his fam­ily mem­bers.

As it hap­pens with many elite in this coun­try, Ma­lik Riaz was un­der med­i­cal treat­ment in Lon­don at the time of the com­mence­ment of the pro­ceed­ings and his son Ali con­ve­niently left for Dubai. Upon re­peated direc­tions, they fi­nally ap­peared in the Court on June 12 and filed a state­ment along with a set of doc­u­ments.

In­ter­est­ingly, Ma­lik Riaz un­abashedly ad­mit­ted of brib­ing or at­tempt­ing to bribe high func­tionar­ies of the State or other in­flu­en­tial per­sons. He ad­mit­ted in a TV in­ter­view that he puts wheels to his files in gov­ern­ment of­fices. How­ever, the in­trigu­ing as­pect to his deal­ings with Dr Iftikhar is that de­spite dol­ing out huge sums of money start­ing from 2009, Riaz rarely re­ceived any re­turn for the same in the form of fa­vor­able ver­dicts from the Court; in­ci­den­tally mak­ing the Chief Jus­tice’s case stronger.

In any event, the Court on June 14 dis­posed of the case by re­ly­ing on the prophetic say­ing that the one who gives bribes as well as the one who takes bribes are both doomed to hell fire. The At­tor­ney Gen­eral was di­rected to set the ma­chin­ery of the State in mo­tion so that all those who may have com­mit­ted any il­le­gal acts, in­clud­ing Ma­lik Riaz, Dr. Ar­salan Iftikhar, and Riaz’ son-in-law Sal­man Ali Khan, be brought to book with the full force and rigor of the law. The Court noted that such ex­change of bribes with the at­tempt, even a failed one, to influence the course of jus­tice, is il­le­gal and pun­ish­able un­der var­i­ous laws.

It may be pointed out that the doc­u­men­ta­tion fur­nished by Ma­lik Riaz in the Court re­lated to only 4.5% of the to­tal money al­legedly spent on be­half of Ma­lik Riaz. The to­tal al­leged amount spent as il­le­gal grat­i­fi­ca­tion is around Rs. 342.5 mil­lion, in the form of fa­cil­i­ta­tion dur­ing for­eign trips and by way of cash trans­fers, which com­prise the largest chunk of the al­leged bribes: Rs. 327 mil­lion.

As if out of the blue, an off the record record­ing of Mubashir Luc­man and Mehr Bokhari’s in­ter­view with Ma­lik Riaz on Dunya TV did enough to kill the Dr Arslan Iftikhar story. The rest was done by Ma­lik Riaz him­self by ad­dress­ing a press con­fer­ence at the Mar­riott af­ter his ap­pear­ance in the Court on June 12. He was is­sued a con­tempt of court notice the very next day and barred from mak­ing any fur­ther re­marks about the ju­di­ciary.

If it was the in­ten­tion of the rul­ing party to ex­ert pres­sure on the Chief Jus­tice and the Supreme Court by grad­u­ally re­leas­ing ma­te­rial to the me­dia against Dr Arslan Iftikhar, it ap­par­ently has failed at least for the mo­ment. This could not de­ter the Chief Jus­tice from rul­ing against the Prime Min­is­ter who was held guilty of con­tempt of court by a seven-mem­ber bench of the Supreme Court, for fail­ing to com­ply with the or­ders given in the NRO case. The Court dis­qual­i­fied the PM from be­ing a mem­ber of the Par­lia­ment in terms of Ar­ti­cle 63(1) (g) of the Con­sti­tu­tion, on and from the date of pro­nounce­ment of the judg- ment dated April 26, 2012 with all con­se­quences. Gi­lani ceased to be the Prime Min­is­ter ef­fec­tive the same date and the Elec­tion Com­mis­sion was or­dered to is­sue a no­ti­fi­ca­tion of his dis­qual­i­fi­ca­tion from be­ing a mem­ber of the Na­tional Assem­bly.

Is all of the above good for Pak­istan? I would say that it is good in the long run for a num­ber of rea­sons. To quote Jus­tice Khilji Arif Hus­sain in the Dr Arslan suo motu case, “the judges are … 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.” Re­gard­less of the fate of Dr Arslan Ifthikar, the pro­ceed­ings of the case will help in not only the su­pe­rior court judges but also their fam­ily mem­bers be­ing care­ful in their pub­lic deal­ings.

Sim­i­larly, im­par­tially speak­ing, the task of in­ter­pre­ta­tion of laws is not the job of the ex­ec­u­tive in­clud­ing the Law Min­istry; it is the func­tion of the courts. One may dis­agree with it, but it at­tains fi­nal­ity once de­cided by the Supreme Court. The Prime Min­is­ter and his co­terie of ad­vi­sors who tried to make a joke out of this whole ex­er­cise, even­tu­ally had to pay the price. The les­son hope­fully is learnt and all con­cerned would now know as to where the lines are drawn and should not be crossed. Anees Jil­lani is an ad­vo­cate of the Supreme Court and a mem­ber of the Wash­ing­ton, DC Bar. He has been writ­ing for var­i­ous pub­li­ca­tions for more than 20 years and has au­thored sev­eral books.

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