By: Asma Jahangir
THE masks are off and daggers drawn. Pakistan’s democratic process may once again become a part of history, leaving the world to wonder how we could so willingly poison ourselves in the belief that it would lead to better days.
Those in power have consistently let their people down — ruthlessly. But no one is being fooled. They may feel helpless in the face of manipulation by everyone trying to save their skins — the judiciary included — but as the courts have often held themselves the truth does eventually prevail.
In the meanwhile, the country is headed for another phase of political instability that may finally lead to yet another autocracy. Sense may prevail at the end, but in the process, many heads will roll and hopes will be demolished. These are sad days for Pakistan.
Four years of democratic rule have given people little to rejoice about. Memories of dark nights and empty stomachs will begin to symbolise democracy. Political parties will be judged by their rowdy TV shows and insincerity. The judiciary remained the only institution in which people put their faith. Over the years that too has eroded. Many judgments appear self-laudatory and judged with different yardsticks. Those who follow constitutional rulings may disagree on every aspect of the judgments delivered by the Supreme Court (SC), but there is ample evidence to show that the standards applied in the selection of suo motu cases, the admissibility of cases under Article 184(3) and the process adopted do not follow similar criteria.
The Arsalan Iftikhar judgment is no exception. An additional note from one honourable judge is perhaps the only sobering part of the entire judgment that otherwise appears weak in its reasoning and strong in paying tribute to itself.
Justice Khilji Arif Hussain’s additional note says “while we as judges are particularly 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”.
Judges ought to be judged on the basis of the level of integrity they display and the quality of their judgments, not by the numbers of followers they have in the bar rooms while they serve on the bench.
Similarly, the independence of bar associations lies in being objective, professionally sound and judged by the quality of deliberation at the premises, not by the rumpus created during meetings. They must not be seen to please either the judiciary or the executive. Their agenda should be led by principles, not the position taken by any political party.
Debarring members of the legal fraternity from bar associations without due process is objectionable. Intimidating lawyers from accepting a brief is not the practice of independent bar associations. Even criminals accused of genocide had legal counsels. How does debarring and intimidating fellow lawyer promote the rule of law or the independence of the bar and bench?
Arsalan Iftikhar’s case has disturbed the legal fraternity that suspects a dubious business tycoon has been set up to defame the judiciary. This is entirely possible. Admittedly, the SC has irked the government and most recently the establishment too. The inference is strengthened with the Bahria tycoon claiming to have documented each transaction.
Moreover, it is almost inconceivable, despite pleas of being driven to the wall, for a businessman to take the huge risk of exposing the son of Pakistan’s most powerful chief justice ever. On the other hand, it is argued that while traces of conspiracy are well founded, only someone with strong backing could have come forward and that the wealth accumulated by Arsalan Iftikhar is equally dubious.
The matter may be a scam. Nevertheless it needs to be probed extensively. The SC ruling described it as a matter of the “gravest national importance”, but went no further and the matter was handed over to the attorney general, an executive appointee. This appears illogical, as he represents the very executive that is suspected of hatching this sleazy conspiracy. Will Arsalan Iftikhar get justice from such an executive? The SC should have given the matter greater thought.
On the other hand, if Arsalan Iftikhar is indeed guilty of misdeeds would an already beleaguered executive dare say so and be believed? Any such adverse finding against Dr Arsalan Iftikhar would eventually bring the jiyalas of the PPP and the jan nisaris of the honourable chief justice in direct confrontation. That could be embarrassing for the judiciary that has no concern with the accusations.
The attorney general is advised to handle the matter delicately and in a depoliticised manner. The probe must be impartial and transparent. The SC has often reiterated the need for unhindered access to information on matters of public importance and now is the time to test its words of wisdom.
The Arsalan Iftikhar case and subsequent unethical disclosures in the media have finally convinced the superior judiciary of ensuring that the media follows a code of conduct. An earlier awakening may have spared some painful embarrassment, especially when a large number of suo motu cases were picked out of media reporting without any verification.
Being maligned in the media hurts but when this reaches the highest echelons of the judiciary it becomes a permanent smear. Judiciaries must be as sensitive to the reputation of others as they are to their own. At the same time, they are the custodians of freedom of expression and speech, thus restrictions on the media must be balanced so that this precious right gained after decades of struggle is not compromised in any way.
The media must regulate its own code of conduct; its freedom cannot be compromised and restrictions on it must not be applied from outside unless, it incites violence, like in the case of Rwanda.
The courts have powers under contempt of court to restrain the media from interfering in the administration of justice. Denials should be fairly displayed and defamation cases effectively dealt with by the media. There are enough laws to keep the media in check if these are effectively and properly used in a balanced manner. The worst outcome of the Arsalan case will be to unwittingly pressure the media into self-censorship. It is better to respect its freedom, even when it errs, rather than gag it with heavy guidelines from the outside.
Sadly, the democratic process may prove shortlived. The establishment has played its cards well. It has masterfully used the hands of civilian institutions to cut each other down to size.
There will be no winners as the one who survives will also suffer in isolation. A mere stroke will paralyse the victor too. After all, democracy rests on all three pillars of the state and no one pillar alone can bear the weight of this complex system. We are moving fast in this unfortunate direction and unless we reverse it now, it may be too late.
The writer is a prominent lawyer and human rights activist.