Great responsibility

By Yasser Latif Hamdani (writing in the Friday Times)

The Supreme Court's suo motu notice of allegations of corruption on Chief Justice Iftikhar Chaudhry's son was odd. The presiding judge was the father, and the accused, his son.

Many have attempted to justify the action of the chief justice of Pakistan by quoting examples from Islamic history, including that of Hazrat Umar (RA) who sentenced his son. Others have referred to the fictional but more indigenous example of the Anarkali story where Prince Salim was tried for treason by Emperor Akbar. It is unfortunate that substance has always been disregarded in emotive arguments for form. 

Although the chief justice eventually did the right thing by leaving the bench - established principles of jurisprudence in most of the world, including in India and Pakistan, do not allow a situation where a presiding judge is intimately aware of the facts or the parties - he should not have taken a suo motu notice in his son's case to begin with. Any such situation merits recusal of the judge from the bench.

The tradition of our courts is that a son or a daughter does not even appear as a counsel, let alone a plaintiff/petitioner or a defendant/respondent, before a judge who is their parent.

The allegations leveled by Malik Riaz against Arsalan Iftikhar are of a serious nature and require proper investigation

In India, one can refer to PK Ghosh v JG Rajput AIR 1996 SC 513. Here the Indian Supreme Court held that justice should be done and seen to be done. Therefore any interested judge was declared as disqualified to preside over a case. The highest form of "interest" emanates from filial ties, none so greater than an eldest son's relation to a father. Similarly, in Section 455 of the Judicial Code of the United States of America, it is stated that a judge should recuse himself or be recused on the motion of the party "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding".

In the opinion of this author, instead of suo sponte or suo motu action on the allegations against Arsalan Iftikhar, the chief justice should have opted for suo sponte recusal from his son's legal matters. In fact, some legal scholars would argue that by hearing such cases, a judge may hinder the due process guaranteed under the law and the constitution.

Due process in this case would include prosecution under the National Accountability Bureau (NAB) after due investigation by the Federal Investigation Authority (FIA). This would also have necessitated an investigation into Arsalan Iftikhar's assets.

The failure to do so would have violated the spirit of Articles 4, 10-A and 25 of the constitution. Article 4 speaks of the right of every citizen to be dealt with in accordance with law and enjoy equal protection of law. Article 10-A speaks of due process in the determination of civil rights and criminal charges. Article 25 guarantees citizens equality before law.

It is for this reason that Article 184(3) of the Constitution equipping the Supreme Court with the power to take suo sponte action was intended to be limited to questions of public importance that related to fundamental rights of citizens. It is not clear how the Arsalan Iftikhar matter fulfilled this criterion.

Taking Malik Riaz's statement that despite his payments he received no relief from the Supreme Court on its face, the Supreme Court ruled that no misconduct had occurred on the part of the chief justice. The allegations leveled by Malik Riaz against Arsalan Iftikhar are of a serious nature and require proper investigation.

Closely linked to Arsalangate is the Anchorgate fiasco involving two TV anchors who interviewed Malik Riaz. Leaked behind-the-scenes footage of the interview created an impression that questions were being planted. The Supreme Court's reaction to the leak has raised some questions. Critics are asking whether the full court meeting in a committee room reviewing the footage attached undue importance to a trivial matter. The court summoned and reprimanded the Pakistan Electronic Media Regulatory Authority chairman in front of TV cameras.

As the saying goes, "with great power comes great responsibility". The recent political turmoil in Pakistan requires the honorable judges of the Supreme Court to practice restraint and consider the implications of all their decisions.