A very poignant article on this affair by Ayaz Amir.
Et tu Brute?
Ayaz Amir
Friday, June 15, 2012 From Print Edition
Islamabad diary
We know the kind of influence Malik Riaz Hussain of Bahria Town has been famous for peddling: chummy with presidents and prime ministers, close links to all major political parties, ex-generals and air-marshals in his employ, leading champions of the fourth estate in his pocket, or at least beneficiaries of his largesse. We can even go a step further and for the sake of argument say that he is the biggest wheeler-dealer this side of Suez.
But in the unfolding saga before us that is hardly the point. What on earth was Arsalan Iftikhar, the son of the chief justice of Pakistan, no ordinary chief justice at that but our hero and icon, someone so many of us looked up to, someone for whose sake we had marched up and down Constitution Avenue, doing in this sordid company? If there is a point to this drama it is this.
Ponder over this for a while. A son of Iftikhar Chaudhry and receiving favours from Malik Riaz? First class tickets to London for himself and family, swanky accommodation, a trip to Monte Carlo lady-companion in tow, her identity known to everyone in the right circles in Karachi and Lahore expensive gifts, etc, to the tune of a cool 32 crores. Small change perhaps for Malik Riaz but for most Pakistanis a fabulous sum. All between a period from My Lord the CJs second restoration in March 2009 to the end of 2011. Well have to hand it to the young man, not bad at all.
Commenting on Warren Hastings doings in Bengal, Edmund Burke said that considering his opportunities one was astounded at his moderation, meaning to say that the Governor General could have made so much but made so little. No such fear in Arsalans case. If the documents Malik Riaz has presented in the Supreme Court are anything to go by, there is no squeamishness in the favours extracted, or willingly bestowed. Bold as brass is the cliché which comes to mind.
Whatever opinion judges, high or low, may like to entertain of themselves, most Pakistanis look cynically at the judiciary. Judicial failings, to put it no stronger than that, are the stuff of popular legend. So if these accusations had been about the son of any other judge most people would have just shrugged their shoulders and moved on. But Arsalan Iftikhar living it up at the expense of the guy we have for the sake of argument dubbed the shadiest character this side of Suez? This is the real shocker. Et tu Brute?
Are we in the least bit surprised by President Zardaris reputation, Pervaiz Elahis son, Moonis Elahi, caught in a land scam, the prime ministers sons and other members of his family named in corruption scandals, the money-laundering exploits of political leaderships past and present? No we are not. But Justice Chaudhrys son in the same boat, caught in the same hamam? It takes a stiff shot of brandy to swallow this one.
For when you hear such a thing you are apt to just raise your hands and ask what next? Far from being titillated by Malik Riazs accusations, I felt depressed. I can say the same for many of my friends. Not that Justice Chaudhry is without his shortcomings. I think he has quite a few. Even so, he was a different chief justice, the Supreme Court under him the nearest thing to a populist court in Pakistan. And because he stood up to Gen Musharraf when there was darkness all around, so many of us, even while aware of his failings, considered him our hero.
So despite the fact that he, like other judges, was baptised in the waters of Musharrafs Provisional Constitutional Order, and was part of the benches which validated the generals usurpation of power, we closed our eyes to this past because we were desperate to believe in the future.
It was not just that we suspended judgment. We made a near-Khomeini out of the CJ and persuaded ourselves that a new dawn had arisen. As Aitzaz Ahsan drove the CJ around during the tumult and excitement of the lawyers movement it seemed as if he was not at the wheel of a car but heading some caravan of history.
And now to see the son wallowing in Malik Riazs cesspool, at one with the sharks and the octopuses...it is enough to give anyone a headache.
Ah, but My Lord says he knew nothing. Coming from the highest judge of the land, our hero no less, such a statement has to be taken at face value. Still, is it not a little strange that the son should have taken to wearing fancy suits and driving around in fancy cars, and taking expensive holidays, and become a prosperous entrepreneur perhaps in a shorter time than it took Field Marshal Ayub Khans son, Gohar Ayub, to become a thriving industrialist, and the father should have not the slightest inkling of this magical transformation? Sounds like something from the Arabian Nights.
A father, moreover, sitting constantly in moral judgment over others, inveighing against corruption and wrongdoing in high places, delivering mighty verdicts, not afraid to hold the highest in the land to account, not afraid to look into the shadows and poke with a rough stick institutions hitherto treated as the holiest of cows. For such a one especially charity should have begun at home.
Does anyone remember that amusing episode about the American evangelical pastor, the Reverend Ted Haggard? This was some years ago. One of the Reverends pet hates was homosexuality which he was forever denouncing. One day someone wrote to the Denver Post that he was a male prostitute and that for the past three years the holy reverend had been one of his regular clients. The reverend had to step down and has been doing community service ever since.
I am not saying that any similarities exist with our current saga...only this that when you are on any kind of a pedestal you just have to be that much more careful. If we begin with the proposition that this Supreme Court is different, that its resurrection and restoration were a reflection of the popular will, then the very tenets of this gospel demand that we apply a higher standard of conduct to its performance and standing.
True, Arsalans sins cannot be visited upon the father. But this is a bit like the Abbottabad operation. Osama bin Ladens prolonged presence on Pakistani soil was certainly no proof of our complicity but it did raise questions about the competence of our vaunted intelligence agencies. The father keeping an eagle eye over everything else but oblivious to the shenanigans so close to him...this also raises some uncomfortable questions.
It is not easy to admit this but Malik Riaz is being at least partially honest in this affair. He is not saying that the money gifted to Arsalan was for charity or the Salvation Army. He is frankly admitting to trying to bribe him in expectation of favours in return. This is self-incriminating and could boomerang on him. Arsalan, on the other hand, is protesting innocence. The CJ is pleading ignorance.
Others smell a conspiracy which, for all we know, may be true. The CJ has stepped on too many powerful toes and it stands to reason that he would have powerful enemies. But just consider: with the ammo that Arsalans escapades have provided them, would those enemies have missed their opportunity when it came their way? We are talking of power-brokers not saints. In a game of power the rules do not vary: favour for favour or an eye for an eye and woe betide the innocent soul who forgets this.
The SC is under attack. No question about it. But its defence is also in its hands. The clouds should lift if it only ensures that the dice are not loaded against anyone and that justice is seen to be done. Above all, the CJ must distance himself from all Bahria Town cases. Else impartiality will become all that harder to establish.
Email:
winlust@yahoo.com
Et tu Brute? - Ayaz Amir
Looking at this matter with a different angle:
The perfect storm - Legal eye
Babar Sattar
Saturday, June 16, 2012 From Print Edition
The writer is a lawyer based in Islamabad.
The conspiracy narrative is appealing. Pakistans 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 (theres 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 didnt name names, wouldnt we all agree that graft is firmly entrenched in the media business?
Can there be a simpler, non-conspiratorial explanation for Malik Riazs actions? Lets 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 CJs 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 cant, you return the money and apologise. If you do neither, youre not a freeloader but a blackmailer. And so Malik Riaz went postal. If he was going down, he certainly wasnt going down alone. Could the government, the establishment, stop him? Maybe. But here came the congruence of interest. Who in the power elite wouldnt 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 doesnt 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 Courts 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 CJs 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 CJs 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 CJs 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) isnt backed by the courts 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 CJs son. There is no denying that the media needs its own code of ethics, but a case involving the alleged impropriety of the CJs 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 CJs 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 werent 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, itll be seen as a deal. Welcome to Orwells Pakis-farm: all animals are equal, but some animals are more equal than others.
Email:
sattar@post.harvard.edu
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