Daily Times Editorial Sept 1, 2012

One-man commission The Supreme Court (SC) two-member bench hearing the Arsalan Iftikhar versus Malik Riaz Hussain case has come up with a most surprising judgement regarding the investigation into the alleged Rs 342 million business deal between the two parties. It may be recalled that when these allegations against the son of Chief Justice (CJ) Iftikhar Mohammad Chaudhry surfaced some months ago, and the SC, taking suo motu notice, constituted a three-member bench headed by none other than the CJ himself to hear the case, this caused considerable consternation amongst legal circles and the public regarding the appropriateness of the CJ heading a bench in a case involving his own son. Wisdom mercifully quickly set in when adverse opinion was voiced against this decision, and the CJ wisely, albeit belatedly, decided to recuse himself from said bench. On June 14 the residual two-member bench had announced a reserved judgement referring the matter to the Attorney General (AG) to set the state machinery in motion for an investigation into the matter. The AG then wrote to the National Accountability Bureau (NAB) to initiate the investigation. NAB constituted a Joint Investigation Team (JIT) for the purpose. Prima facie this seems perfectly reasonable, legal, and within the rules. The SC however, in its latest judgement on August 30 has found grave flaws in the procedure adopted by the AG. He has been put on notice by the bench to explain his handling of the matter, which in the court’s opinion went far beyond the scope of its June 14 order. The SC has also castigated the AG for not revealing before the bench that he had at some point represented Malik Riaz Hussain in his professional capacity as a lawyer. It should also be recalled that the SC had stopped the JIT from proceeding in the case on the grounds that the senior police officers who had been inducted into the JIT, SP Faisal Bashir Memon and DSP Tahir Malik, stood accused by the court of in one case providing undue ‘protocol’ to Malik Riaz Hussain on the occasion of his appearance before the SC, and generally of submitting false, dishonest or deliberately misleading statements during the proceedings or inquiries ordered by the court. On this basis, the SC wants disciplinary action taken against these officers. Not only that, the SC labels NAB ‘biased’, therefore unable to conduct the probe free of the perception of partiality or lack of competence. The case investigation has therefore, including all the record in NAB’s possession, been transferred by the SC to a one-man commission comprising Dr Shoaib Suddle. Now issue can be taken with this judgement at a number of levels and on a number of contentious decisions contained therein. First and foremost, the SC seems to have taken recourse to speculative opinion about NAB’s bias or competence before the fact has been established in any reasonable manner. The AG’s representing one party professionally is hardly conclusive proof of bias. The judgement’s castigation of the police officers in question seems to be based purely on behaviour or ‘body language’ evident in video evidence placed before the court by Arsalan’s lawyers taken from the SC’s CCTV cameras. The placing of this video evidence by a party to the case aroused a great deal of concern even then as to how one party could get hold of internal SC footage not normally available to any member of the public. Second, did the footage establish beyond reasonable doubt or at least contention that the police officers betrayed bias or sympathy towards the other party, Malik Riaz Hussain? Could it not be argued, for example, that they were simply showing courtesy to one of the litigants or even ensuring their safety? On the other hand, the setting up of another (one-man this time) commission to investigate will again become controversial just as the setting up of the Memo Commission by the SC troubled many legal minds. Fingers may now be pointed that this is another case of the SC assuming to itself the powers of an investigation agency, which it is not mandated to do, and which is the exclusive preserve of the executive. Such commissions of inquiry are normally set up by the government under the Commissions of Inquiry Act. This new ‘jurisprudence' by the apex court is bound to arouse controversy, possibly face legal challenges, and reinforce the opinion that holds that the SC is either unable, or seen to be unable, to do impartial justice in a case involving the CJ’s son. For this negative perception, the SC has no one to blame but itself.