When the late Mother Teresa went to meet the Pope in the Vatican for the first time, she took a bus and was dressed in a sari that apparently cost one rupee. The late Christopher Hitchens wrote about it saying that this would be the definition of behaving ostentatiously since a normal modest person would have at least taken a cab and put on their best scarf. One can disagree with the particular example yet the point does have some weight. Excessive displays of piety are often affected and a flag should go up whenever one encounters them. The Chief Justice’s decision to take suo motu notice of the allegations of substantial corruption against his son and then briefly presiding over the Bench put many members of our free media in visible confusion. The Chief Justice has since recused himself from hearing the case and supposedly barred his son, Dr Arsalan Iftikhar, from entering his house or maintaining any contact.
The Chief Justice took suo motu notice of the case and presided over the Bench while in the complete knowledge of the code of conduct of Judges. I think, given the experience and acumen of My Lord, the Chief Justice, one can say to a moral certainty that he would be aware of the general principle and the specific provision of the code of conduct, which requires judges not to hear matters involving immediate family members. Far be it for me to allege that the Chief Justice wanted any personal control over the matter or send a signal and I am equally sure that he was driven by the best of intentions to administer justice. Yet, the fascinating thing about the episode was the reaction to it. Hazrat Umar (RA) was the standard reference and the decision was almost allowed to go unexamined. The simple argument that Hazrat Umar (RA) was not bound by a written constitution or separation of powers etc is either conspiratorial or un-Islamic. Now he has recused himself, yet the idea that our superior courts feel empowered to rely on their version of history, notwithstanding petty temporal codes of conduct is not very confident inspiring. I have a forbidding feeling that the Abraham and Isaac references are maturing in the casks for now. A random but more recent historical reference is when Field Marshal Ayub Khan during his tenure was told about the thriving and extraordinary growth of his son’s business, he reportedly replied, “Ah, I never thought the boy had it in him”.
There is tremendous confusion about the law of contempt in Pakistan, although for the purposes of the present matter it should suffice that the Chief Justice’s son or any member of his family does not enjoy any immunity from fair criticism. The presumption of innocence that should be extended to everyone cannot and should not be denied to Dr Arsalan iftikhar. However, imagine the reaction if Prime Minister Yousaf Raza Gilani or Chief Minister Shahbaz Sharif had said that they swear that they had no idea about what their son’s source of income is. Well, the reaction is fairly easy to imagine. The media and ‘independent’ analysts would have had a field day with cheers, jeers and smirks and there would have been demands of resignation on the grounds that someone who does not know the happenings of his own home is completely unfit for governing the country or a province. The mass forwarded text message jokes would have written themselves. That reaction would have been silly. Let us be clear, there is no allegation on the Chief Justice and swearing on the Holy Quran is almost too strenuous a display. I in no way suggest that any adverse inference against the Chief Justice can be drawn on the basis of the alleged conduct of his son, yet then the same principles should apply to our elected representatives. There is an unmistakable double standard here; surprisingly the inane examples of mature civilised democracies and the corelation between allegations and resignations also seemed to have dried up.
The lazy consensus is that the “politicians” are corrupt, so an allegation against them or family members is basically a conviction, whereas against the armed forces or the superior judiciary it is a conspiracy. This is the paradox of judging actions on the basis of reputation or perception rather than the other way round. My argument is not the same lowered bar be applied to the khakis and the judges, but the reverse, that the presumption of innocence until proven guilty is applied to everyone, without exception.
Some time back, I saw Ms Asma Jahangir on television making the distinction between the “Shudra” (lowest caste) and the “Brahmins” in Pakistan. For purposes of clarity, the “Shudra” class is the elected representatives. The classification was made before this scandal came to light, yet it has amazing prescience in regards to the response to the Dr Arsalan episode. I think of Ms Jahangir for another reason. Recently, she has very vocally expressed knowledge of a plan to assassinate her by the state agencies of Pakistan. Asma Jahangir has acquired the right to be taken very seriously at all times and she is not one to make this sort of revelation lightly. Who and why anyone would want to kill Asma Jahangir is an easy question with multiple easy answers. Ms Jahangir is a national asset and it would be catastrophic if anything were to happen to her. If there was ever a case fit for suo motu and asking the security agencies to come and give an undertaking, this is it. This does not absolve the onus on the federal and provincial governments to not only provide security but also demand explanations from establishment agencies.
Dr Arsalan’s case will be the litmus test, the gold standard for our Supreme Court. Dr Arsalan remains innocent as of now and this is how I hope it stays at the end. However, any compromise on transparency, the perception of neutrality or the strict confines of the law, would make a mockery of a lot of high-minded talk.
Published in The Express Tribune, June 10th, 2012.
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