by Babar Sattar
The writer is a lawyer based in Islamabad.
The chief justice did the courageous thing by taking suo motu notice of the clandestine affair between Malik Riaz and his son Arsalan Iftikhar that had spread like wildfire through a crafty whispering campaign. And after putting the judicial wheels in motion to hold to account his son and Malik Riaz, and throwing his weight behind affixing the liability of the two in a transparent and impartial manner in an open court, he did the right thing by recusing himself from the case. Those who argue that the accusations rooted in gossip should have been shrugged off are wrong. The conduct in question might be that between two private individuals, but one of them being the CJ’s son, the insinuation was that illegal gratification was offered and accepted to influence the outcome of court cases pending before the Supreme Court.
From the disclosures made by journalists so far it is obvious that documents and accounts (and probably even videos?) were meticulously kept to drag the name of the CJ through dirt and consequently bring into disrepute the integrity and credibility of the apex court. The matter therefore didn’t relate to the CJ alone, but would bring under cloud the competence of the highest court of the land to dispense justice not adulterated by considerations of favour. And this in turn would bring into question the very notion of the existence and utility of rule of law in Pakistan by lending credence to the view that (i) law is not a shield for the weak but a weapon in the hands of the powerful to keep in subjugation the lesser mortals in society, and (ii) unimpeachable integrity is a defunct concept as every mortal is up for sale at the right price.
Such jaundiced view of the state and society is not a figment of cynical imagination but is rooted in the reality that the ordinary Joe is confronted with on an everyday basis. By all rational accounts we are living in a kleptocracy: a government of the extortionist, by the extortionist, for the extortionist. The state is in default of its contract with the citizen. You no longer have an entitlement to your rights even if you do your duty as a citizen. And consequently you have to pay for everything, even to protect your most basic rights to life, liberty and dignity. And if you are ready, willing and able to pay, it doesn’t matter if what you seek is right or wrong. State largesse flows through channels of personal patronage. Personal loyalty trumps merit. There is no distinction between honest and dirty money. And there are no principles remaining, only interests.
And consequently instinct demands that one accumulate as much wealth and influence as possible and use it to build social networks of protection to replace the role of the state. And it is people like Malik Riaz, who have mastered the ways of this ‘brave new world’ where money buys influence, influence yields more money, and with the use of money and influence to cajole the powerful and coerce the weak there are no limits to what you can accomplish. But not everyone in this state and society is comfortable with the rules of our evolving kleptocracy. And when someone who has reached the highest echelons of power within the state, like the CJ, refuses to be bought or otherwise inducted within the kleptocracy, the stakes go through the roof.
Within the kleptocracy that we are referring to, the kith and kin of the powerful do exceedingly well. Why should it be surprising that the mediocre son of our CJ grew a sense of entitlement to receive preferential treatment and climb the ropes without paying his dues? Does such lack of discretion and propriety reflect poorly on Iftikhar Muhammad Chaudhry, the father? It probably does. But does it undermine his integrity or credibility as a judge and a public-office holder? Absolutely not. In exposing the dealings between himself and Arsalan Iftikhar, Malik Riaz has used the nuclear option. Why would anyone need to employ means of last resort in the event that quiet persuasion is working? According to media accounts, Malik Riaz leaked details of sponsoring the merry-making of Arsalan Iftikhar because his investment wasn’t paying off.
So what we have so far is this. By his own account, Malik Riaz paid Arsalan Iftikhar to influence the outcome of judicial proceedings pending before the Supreme Court. Was he forced to do so because the wily Arsalan was blackmailing poor Mr Malik? Improbable, and Mailk Riaz would need to adduce evidence to establish that he was at the receiving end of this clandestine relationship with the imprudent 34-year-old. As Arsalan Iftikhar was not holding court and adjudicating cases implicating Malik Riaz, he would in fact need to establish that the CJ was in fact blackmailing him while using his son as an agent. Without this, and in view of information disclosed by Malik Riaz himself, he could be charged for offering illegal gratification to influence a public servant.
This could make him liable under Section 165-A read with Sections 162 and 163 of the Pakistan Penal Code as well as Section 9 of the NAB Ordinance. If it were established that Arsalan Iftikhar accepted the gratification with a view to influence the discharge of functions by the office of the CJ or other public servants due to the exercise of his personal influence, he could also be liable under Sections 162 and 163 of the PPC. Now that details of this scandal are out in the open, it is essential for the apex court not to take a narrow view of this affair in the event that Malik Riaz backs off and doesn’t adduce any evidence before the court, but instead exercise its inquisitorial powers to collect and decipher facts to ensure that both Malik Riaz and Arsalan Iftikhar are held to account for their actions in accordance with the law.
In this debate, Malik Riaz must not be seen as a solitary individual. He might be a good friend, a loving father and a rich man who believes in charity. But he is also a phenomenon that highlights the growing predatory instincts of our society. This phenomenon has cultivated the myth of infallibility and immortality of the powerful within the society. It has defeated the conventional wisdom that if you are caught with hands in the cookie jar society holds you to account and respectable folk refuse to associate with such delinquents. It has established that irrespective of personal repute, money can buy the best professional assistance. It has proven that if cut a piece of the pie everyone is willing to play ball. This phenomenon has established an ethic of success that labels right and wrong as irrelevant for those who aim for upward professional and social mobility.
The CJ’s commendable action of dragging his son before an open court and laying his ethical failings in plain public view is a defining moment in the fight between continuity of the depraved status quo and the desire for change. As nothing succeeds like success, the strength of the entrenched kleptocracy is rooted not in its popularity but in its efficacy. Our ruling elites – across the political class, the khakis, the bureaucracy, the media and the lawyer fraternity etc – are mostly its beneficiaries.
The few who still have qualms about meddling in grime have turned apathetic having made their peace with the ‘ground reality’ they cannot change. In this environment, the action of the CJ to stand by law and principle, even as he subjects himself and his family to public scrutiny and possible embarrassment, has provided a unique opportunity to stand up and fight the kleptocracy. We must not fitter this opportunity away.
Note that the purpose of UN commission was fact-finding not fixing the responsibility.
1) Why Musharraf was given a safe exit when even PPP workers think he was responsible for BB’s murder? Was it due to the fact that Mr. Zardari was one of the beneficiaries or it was due to some pressure?
2) Why the key responsible persons continued to work on their positions without proper accountability during the government of PPP including interior ministry officers, police officers, intelligence agency officers including former DG MI Nadeem Ijaz, former ISI head and Vice Army Chief General Kiyani?
3) Kiyani is now Army Chief and was representing Musharraf during NRO deal. Will he allow further investigation on the role of ISI, MI,Musharraf and Kiyani himself?
4) In Rehman Malik’s car, two other persons were also sitting. These two persons are Babar Awan and Musharraf’s close friend and former Core Commander Mangla Lt. General (R) Tauqir Zia(who was also the Chairman PCB during Musharraf time). Will some probe them for their role and negligence?
5) Why the government of Pakistan delayed UN Commission Report for 15 days (till 15th April 2010)? Even though UN Commission didn’t conduct any new interview after 31st March 2010 as opposite to the government’s claim that the Commission is requested to conduct few interviews. Rehman Malik even yesterday revised the same claim.
6) Will this murder go into the dustbin of Waziristan or some serious investigations will be done to investigate this high-profile murder?
Lets see if millions of dollars invested by a poor nation on this report will be of any use or not?
I hope some serious and independent investigation and trial will be conducted for this murder.
9 ) Commission didn’t find evidence against Asif Zardari’s and any of the family members’ involvement in this murder.