The perfect storm - Legal eye

The writer is a lawyer based in Islamabad.
The conspiracy narrative is appealing. Pakistan’s makeshift accountability system comprises the media and the judiciary. The media brings into public focus stories of corruption of the ruling elite and the court takes suo motu notice, orders inquiries, stipulates timeframes, assumes supervisory responsibility and produces legal consequences for illegal conduct.
Take away the role of the media and the Supreme Court and the plunder of state largesse would be a no-holds-barred affair. As the power of the judiciary and even the media is largely rooted in probity and credibility, take that away and the distinction between those being judged and those doing the judging vanishes into thin air. And hence the Riaz Malik exposé that maligns the judges and the journalists by dragging them into the cesspool he lords over.
All this is fine. But what is the one factor outside the control of someone like Malik Riaz that makes such grand conspiracy work? Free will? Could he contrive moral failings or defects amongst the righteous that he could later expose? Even if we assume that the ‘evil’ Malik meticulously laid out a trap for unsuspecting decent folk (there’s much talk of entrapment these days) was he holding a gun to their heads forcing them to take a dip in the cesspool?
Can it be that we are all mad at Malik Riaz because he has shown us the mirror and our reality makes us nauseous? Is he lying through his teeth when he says money makes the mare go? Is he maligning the judiciary if he suggests that our justice system is corrupt? If we didn’t name names, wouldn’t we all agree that graft is firmly entrenched in the media business?
Can there be a simpler, non-conspiratorial explanation for Malik Riaz’s actions? Let’s consider this. Here is a man who has mastered the art of using money to make things happen. He has accumulated a heap of money and created a spoils system outside the structure of the state for the benefit of all segments of the power elite. He believes everyone wants a piece of the forbidden fruit.
He is not greedy and is willing to share the boodle with everyone who has power. He believes he is not wicked for in an otherwise dysfunctional state he is delivering value as a developer and paying his dues to the society through charity programmes. So why expose and jeopardise the ‘public-private partnership’ that has been working so well?
Could it be a combination of fear and anger? Malik Riaz got afraid when his son was booked for murder in the car-racing incident. He felt his son was being unfairly implicated. There were other cases picked up by the Supreme Court in suo motu jurisdiction that took the long arm of criminal law to the person of Malik Riaz. For once he found himself at the wrong end of the system. He instinctively tried to buy his way out of the mess. As the crucial matters were before Court One in the SC, no one lesser than the CJ himself could help. He engaged the CJ’s son. The son happily accepted the largesse lavished upon him but did not deliver. This provoked anger. Pakistan was a sordid place, but so sordid that there was no honour left amongst thieves either?
And Arsalan Iftikhar alone did not arouse the anger. What was the point of years of ‘sharing and caring’ if in his hour of need no one was able to shield him? As time passed, the SC continued with its proceedings and Arsalan Iftikhar with his merry-making on borrowed money, the frustration mounted. The code of conduct in the dark world was clear enough. If you take money, you get the job done. If you can’t, you return the money and apologise. If you do neither, you’re not a freeloader but a blackmailer. And so Malik Riaz went postal. If he was going down, he certainly wasn’t going down alone. Could the government, the establishment, stop him? Maybe. But here came the congruence of interest. Who in the power elite wouldn’t benefit from a shamed and subdued Supreme Court?
The challenge of reforming our state and society is herculean. But let he who has not sinned cast the first stone is what Malik Riaz seems to be saying. And the argument has resonance. Arsalan Iftikhar doesn’t preside over a court. By establishing through documentary evidence that Arsalan did actually accept monetary benefits and by alleging that the money was accepted in the Supreme Court’s name in order to influence the outcome of judicial proceedings, it is the integrity, independence and credibility of the SC that has been impugned. The charge levelled by Malik Riaz never was that the exercise of authority by the SC or the CJ had been influenced by illegal gratification. That was not the main cause of concern in public mind.
The charge was that the CJ’s son had made a promise (in the name of the SC) in return for consideration and had failed to deliver. Consequently the questions and doubts in the public mind were threefold: One, did the CJ’s son accept money and benefits from Malik Riaz? Two, if so, was the receipt of money the outcome of genuine business dealings between private persons?
And three, if the CJ’s son accepted money by creating an impression that he could get someone relief from the SC, would the SC prosecute him with the same fervour and rigor that it unleashes on those implicated in lesser corruption scandals? In not recognising and addressing these questions and concerns in the Arsalan Iftikhar-Malik Riaz case, the Supreme Court has seriously erred.
The three failings evident in the Supreme Court ruling are these. One, the assertion that the court usually refrains from exercising its inquisitorial powers under Article 184(3) isn’t backed by the court’s record in the many corruption cases it has handled recently. When it assumes supervisory jurisdiction and issues categorical directions and timeframes for inquiries in other scandals, why leave this matter to the attorney general? Application of restraint in one case and activism in others without any significant distinction in the subject matter raises the question of whether the court is applying double standards.
Two, the court celebrates the role of the media when it highlights scandals implicating executive officeholders, but issues a sermon when the media acts as a whistleblower in a graft case involving the CJ’s son. There is no denying that the media needs its own code of ethics, but a case involving the alleged impropriety of the CJ’s son might not have been an opportune time to drive home the point. Additionally, here the media did not allege any facts that are untrue. So having stumbled on an embarrassing story regarding the CJ’s son, should it have simply shoved it under the carpet in the ‘larger national interest’?
And finally, to assert that the concerns in public mind stand addressed because Malik Riaz has submitted in writing that court verdicts weren’t affected by his bribes is to miss the point completely. This man sits on national TV for two hours and continues to hurl accusations at the CJ and his son and the honourable court asserts the very next day in a detailed judgment that the matter now rests. Such naïveté lends credence to SC detractors who allege that we are living in an era of selective justice.
In its handling of the Arsalan Iftikhar case the Supreme Court might have squandered a vital opportunity to salvage its reputation as a neutral arbiter of the law. Now if Malik Riaz is punished it will be called a vendetta. And if he is let off, it’ll be seen as a deal. Welcome to Orwell’s Pakis-farm: all animals are equal, but some animals are more equal than others.
Email: sattar@post.harvard.edu