One suo motu too many – By: Tausif Kamal

Whenever some of our preconceived myths are shattered by a stark, unyielding and yet truthful reality, we tend to revert to denial and a refusal to face up to the facts as they are

The Supreme Court’s short order in the Arsalan Iftikhar case absolving the Honourable Chief Justice (CJ) without any investigation or examination of any evidence in the underlying imbroglio is premature. It is in fact contradicted by the Supreme Court’s own statement in this order: “…the Supreme Court (SC)…cannot judge the guilt or innocence of the parties without evidence or trial…” So how is this ruling not applicable to the CJ, who is so intertwined in this scandal being the father of one of the main suspects, and whose judicial power is at the heart of this corruption scandal?

This is in way to imply that the CJ is guilty but there cannot be an exemption from inquiry and investigation along with other participants and witnesses, for possible criminal violations based just on mere words of one of the parties. Who is Malik Riaz to give a clean bill of health to the CJ? It is strange that the SC is relying on the good word of Malik Riaz whom the former considers to be an accused fit to be prosecuted for some serious criminal offences under Pakistan’s criminal laws.

To contend that the media is maligning the judiciary by highlighting this scandal is to blame the messenger and not the message. Let us not be sidetracked, for now at least, by corruption in the media, which no doubt prevails, but which is less important than the imperative of our judiciary to have an unassailable reputation and an image above reproach. Conducting a thorough probe or inquiry of all those allegedly involved, including the Honourable CJ, will clear rather than tarnish the judiciary’s reputation and remove the dark clouds hanging over our most esteemed institution.

The nation has a right to know answers to such vital questions as how long the CJ knew about his son’s involvement with Malik Riaz and how many meetings the CJ had with Malik Riaz before the matter was seized through a suo motu action. The only other acceptable alternative to such an inquiry would be for the CJ to quit honourably in the larger interests of the judiciary and the country.

Lately, it appears that the rule of law in our land has been supplanted by a rule, by a surfeit of suo motu suits. Although in the sou motu matter of the CJ’s son and Malik Riaz, it is a case of one suo motu too many: the one that backfired, and the one that might come to haunt the judiciary for years to come.

Whether dwelling on issues of purely executive governance (sugar pricing, highway bypasses, bureaucratic postings and transfers, etc), or of separation of legislative powers (Speaker’s parliamentary rulings, disqualification of assembly members, etc), or of admissions and adjudication of petitions (lack of legal standing and subject-matter jurisdiction in the memo case, usurpation of powers of the executive branch in the contempt case, etc), the misuse of the original jurisdiction by the judiciary has been whimsical and arbitrary.

Far from strengthening the rule of law in our country, this judicial adventurism under the cover of Article 184 (3) suo motu jurisdiction has created a climate of political instability in the country. It has undermined the law-enforcing and prosecutorial institutions, increased the cost of doing business with Pakistan by millions of dollars, and above all, diverted the judiciary from performing its basic constitutional function of deciding thousands of regular cases that are languishing before the apex court on appeal. It is about time we discarded the anomalous, overreaching Article 184 (3) in the dustbin of history and thus join the other democratic nations of the world in matters of judicial oversight.

Our knee-jerk reaction to this alleged corruption and blackmail scandal the moment it unfolded in the media seems to indicate the prevalence of a national psychosis or a mindset of paranoia, delusion and denial — reminiscent of the lugubrious, conspiratorial days of 9/11 and May 2 incidents. It seems that whenever some of our preconceived myths are shattered by a stark, unyielding and yet truthful reality, we tend to revert to denial and a refusal to face up to the facts as they are. In the case of the 9/11 attacks, our myth that all Muslims believe and adhere to the peaceful precepts of Islam, and in the case of the Osama bin Laden raid, our myth of invincibility of our armed forces were shattered and laid bare. As we all know, our preferred mode of coping with these setbacks was to spin a web of conspiracy theories.

If the current national gridlock does bring down the edifice of democracy once again it would be the fault of our three institutions: the army, because of its running the country’s foreign and security policy; the government, because of its inept, non-transparent and ineffective performance, and the judiciary, because of its vengeful, overarching adjudication, creating roadblocks in political governance.

Concerning our superior judiciary, we have created and embedded in our minds an illusion of cool, incorruptible, super judiciary that is beyond mendacious politics, mundane temptation and inveterate ambition. As soon as this high-flying myth came crashing down to reality with this corruption case, we reacted with, what else, conspiracy theories. Unless and until we stop believing in fairytales, in the last bastions of hope that Ayub will save us, that Zia will save us, that Bhutto will save us, that the army will save us, and now that the judiciary will save us, we will continue to be hugely disappointed and doomed to live perennially in these parlous times with one setback after another.

We alone can save the country and ourselves.

The writer is a JD, Attorney at Law in Houston, USA and can be reached at Tausifkamal@hotmail.com

Courtesy: Daily Times

http://www.dailytimes.com.pk/default.asp?page=20126\20\story_20-6-2012_pg3_6

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