Ward of the Court

Treating of Dr Arsalan as ward of the court should stop, would actually farther independence, neutrality of Court.

Finally, all of us can go to sleep in peace with the newly acquired knowledge that My Lord, the Chief Justice remains vigilant as ever to ensure that no vulgarity slips through the cracks on our television channels on his watch and the Pemra chief can no longer slack in his duties. My Lord, with customary wisdom, has observed that there are certain programmes and advertisements that one finds unbearable to watch alongside with the family. This exercise of the “paternal” jurisdiction of the court and the fact that the Chief Justice is a “family man” is infinitely comforting. It might be interesting to mention that My Lord is not always the brilliant, stoic, sober statesmanlike, paragon of justice and has a human, lighter side to his personality as well as indicated by his remarks in court that the parodies of politicians are in “good humour” and “are enjoyed”.

As we swoon in relief on the consolation of being under the eternal, paternal gaze of My Lord, one is also conscious of a slight unease. Dr Arsalan Iftikhar is hard to banish from the mind. The latest, although unconfirmed news report about Dr Arsalan using the address of the Chief Justice House for commercial purposes is unnerving to say the least. One sincerely hopes that the unconfirmed report is a complete fabrication. Nevertheless, many other questions still remain regarding the Young Doctor. What serious person has not indulged in some juvenile frolics behind their parents’ back at one time or another, however, Master Arsalan seems to have taken this mischievous streak of youthfulness well into his adulthood. Whatever other sterling virtues that he may possess, staying out of trouble is not one of them. The core of the infamous letter written in 2007, which later formed the substantial part of the chargesheet levelled against the Chief Justice pertained to him. No one, not even the malicious General (retd) Pervez Musharraf could find anything to accuse My Lord and it was only Dr Arsalan who proved to be the weak link.

The delinquent first-born male offspring has been the undoing of great men in history more times than by foreign armies or thousands protesting in the streets. Let us solemnly hope that this does not happen. There is one way to make sure of that, namely to put the case of Dr Arsalan on the fast track (like the NRO case, perhaps) and in full public light. I am convinced to a moral certainty that the Court is completely unbiased in this matter, yet even natural delays give rise to whispers and as My Lords will be well aware that whispers tend to damage the perception of neutrality. As a suggestion, this case can proceed on the same pace as the Prime Minister’s contempt case, Malik Riaz’s contempt case and the Ephedrine case. Our media does not seem to bring this up because of a fear of contempt. Master Arsalan, though deserving of our affection, is not protected by any laws of contempt. We, as a nation, are fairly generous in ascribing paternity/maternity to individuals, e.g., Dr Afia Siddiqui is “qaum ke beti”, I for the moment forget if Ajmal Kasab was a “qaum ka beta” or not. In any event, Dr Arsalan is not the “son of the judiciary”, he is an accused entitled to the presumption of innocence and not protected from fair questions. The treating of Dr Arsalan as a ward of the court should stop and would actually farther the objective of independence and more importantly the perception of neutrality of the Court. There is no allegation against My Lord and he, I am sure, has nothing to hide. I see no reason why his case should have any less attention or probing than Malik Riaz, Ali Musa Gilani or Raja Pervaiz Ashraf.

The Contempt of Court Act was not entirely thought through and perhaps, got the treatment it deserved. However, as always, the action on the periphery was more fascinating than the final verdict. My Lords began by inquiring into the motivation or the good faith of Parliament in passing that law. Surely, a mistake has been made, it would be naïve and discourteous to assume that My Lords would not be aware of the principle that no mala fide can be attributed to Parliament since it would be equal to attributing malice to the will of the people. Parliaments pass silly and unjust laws and some of those laws are sometimes rightly struck down by courts as being unconstitutional, yet the question of motive is not a relevant consideration. One of his Lordships then proceeded to comment on the conduct of the opposition and gave an admirable tutorial on how the opposition should not have walked out and protested inside Parliament. This came, from perhaps, the finest judge in the country and I am in no doubt that he was driven by the best of intentions and had the reformation of our parliamentary system at heart, yet a line was clearly crossed. The Court can declare laws as unconstitutional, hold people in contempt and hyper-technically, arguably send Prime Ministers home but what they cannot do is to instruct or demean the manner in which parliamentarians debate or choose not to debate matters in Parliament. That conduct is adjudged and weighed by the people.

With the amount of talk on the “independence” (useful to remember not interchangeable with “objectivity”) and contempt of the Judiciary, there is perhaps, a small case to be made for the independence of Parliament and how some things could be contemptuous to Parliament. All members of Parliament (government and opposition) should protest at this sermonising and infringement into their domain. It would be futile to complain much about the impending, inevitable contempt of court hearing of the Prime Minister as that seems to be settled but is it too much to ask that the case of Dr Arsalan, the Asghar Khan petition and the summoning of the DG FC also be accorded a fraction of the attention, I think not.

Published in The Express Tribune, August 12^th, 2012.