The way ahead – By Najam Sethi

In India at least half a dozen chief justices in the past have been accused of corrupt practices or conduct unbecoming a judge of high stature. However, none has ever been dragged to the dock. But matters are very different in Pakistan where the chief justice and the Supreme Court are battling for their credibility and independence because of the misdemeanours of the son of the chief justice. There is bitter discord in state and society. The fear is that if the political fallout isn’t quickly contained, the military might be tempted to step into the fray.

Riaz Malik has presented credible evidence of footing the bills of Arsalan Chaudhry, the son of the CJP, for more than Rs 34 crore in the last three years for favours promised but not fulfilled in cases of property disputes relating to Mr Malik’s business empire pending before his father in the SC. He claims he was blackmailed by Arsalan Chaudhry to cough up or face hard times in the court before his father. Arsalan says he was entrapped in order to influence his father. In the event, Arsalan took favours from Mr Malik but his father didn’t return the compliment, which raises the question of who was blackmailing whom and who gained and who lost from this unholy transaction.

Mr Malik faces the prospect of losing his empire if he is convicted of contempt and blackmail. Why would he take such a risk? Therefore conspiracy theorists are justified in asking about Mr Malik’s timing and motive – the military establishment is angry with the CJP for blocking its anti-terrorist operations on grounds of human rights violations and the PPP is up in arms for being singled out and hounded for corruption by him. The CJP is popular with the media and middle-class urban Pakistanis because of his summary judgments against the powerful and wealthy.

Mr Malik’s argument also is that the father knew his son was up to no good and ignored the matter. He claims the CJP’s conduct was unbecoming because he had secret meetings with the Prime Minister, with Mr Malik himself and with unnamed others to cut political deals. He insists he will furnish more evidence later. In turn, the CJP has slapped a contempt notice on him and called upon fellow judges to signal a vote of confidence in him.

The media is bitterly divided. A few blindly believe in the CJP’s integrity and innocence and are accusing others more rational and independent of being on Mr Malik’s payroll. But it is the considered response of the bar that will be critical in tilting the scales of this case. Many lawyers have become critical of the CJP’s conduct and judgments in the last two years. They want an independent commission to investigate the charges against the son. The independence of the judiciary as an institution is more important to them than the fate of one man, however heroic his past. If the CJP rides rough shod over their concerns, they could line up against him.

The opposition parties are mulling their options. Privately, everyone acknowledges that the son is guilty as charged. Some also say, prima facie, the CJP is tainted. But publicly they are with the CJP. The government is silent. It doesn’t want to be seen as conspiring against a popular judge.

The military’s secret intelligence agencies are suspected of hatching this conspiracy to oust the CJP or weaken him so that he cannot make trouble for them. Insiders claim that Mr Malik would never have acted so boldly without a green light from them. Indeed, he proudly claims to have dozens of retired generals, admirals and other ranks working in his multi-trillion empire.

The outcome of this case will be important. If the SC rallies behind the CJP and successfully shrugs off its detractors, it could be emboldened to take a hard line against the unpopular government. But given past practice, the government will probably resist obeying its orders, thereby leading to a constitutional gridlock. If the court orders the sulking military to compel the government to obey its orders and the military refuses to do so (on the constitutional ground, for which a precedence exists, that it takes its orders from the government and not the court) the CJP will crumble. Equally, if the CJP and SC cannot withstand pressure from the lawyers and media, egged on by the government and military, to investigate the case impartially, the odds are that fellow judges will revolt and ditch the CJP if he insists on having his way.

Therefore the SC cannot afford to be obstreperous. In the worst case, if the gridlock persists amidst bitter wrangling and violent protests, the military might be emboldened to intervene in the “national interest” to stop the slide into anarchy as it has done three times in the past six decades. Whether such an intervention would be sustainable or not is another question.

Courtesy: The Friday Times

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