Allegations, Lies And Videotapes – What’s Next For Pakistan?
After the recent explosive political developments, the high court could reasonably infer enough bias to either acquit Nawaz Sharif, discharge him or order a retrial as it deems fit under the circumstances of the case, writes Tariq Bashir.
One needs no reminding that during the Supreme Court hearing on the Panama petitions, it was argued at length by lawyers representing Nawaz Sharif and, later, numerous columns were written in this regard. It was said that conducting a mini trial by the apex court was tantamount to prejudicing the case of the former prime minister.
The Supreme Court, however, proceeded not only to comment on and discuss the potentially incriminating documents which could be examined in a proper trial–which did, indeed, take place upon the directions of the Supreme Court – but, in an unprecedented move, appointed a monitoring judge supervising the corruption trial.
That measure was widely criticised by a number of prominent lawyers and jurists and was rightly viewed as a device to monitor the trial judge in order to make sure he hands out a suitable judgment since the final appeal had to be eventually heard by the Supreme Court, to quote the late Asma Jahangir.
Having seen such oft-repeated and discredited manoeuvres during her eventful life and career, she even went to the extent of seeing a large footprint of our omnipresent military establishment. One wonders how she would have described the current sordid saga of judge Arshad Malik being compromised through videoed confession had she been alive.
Add to that a seemingly mendacious and quite unbelievable–although intended to be sensational by those who conceived it – counter allegation of blackmail from the judge through a sworn affidavit and you reach yet another riveting twist in a Godfather-like thriller. But with an indigenous flavouring.
Mario Puzo, instead of turning in his grave with discomfort, must be applauding at the ingenuity of the local author, though a bit perturbed by gratuitous tragicomedy sequences creating unintended hilarity enough to mar and dilute the awe and frightful effect that such a bloodcurdling thriller potentially creates.
The experience that Asma Jahangir is seen alluding to in a video clip going viral on social media these days is that of witnessing politics and politicians being trashed in the name of national interest throughout our history, although, it has to be said, no one has ever come up with a universal definition of national interest. Any parallels and similarities with Zulfikar Ali Bhutto’s murder trial can only be made so far as the approach to rubbishing and eventually eliminating political leaders is concerned.
Having said that, admittedly, the modus operandi has changed considerably with the story writers paying more attention to nuance rather than adhering to a time-tested, plain, stone cold brutal script. Ironically, those running the colleges teaching hybrid and fifth generation warfare are missing the basic point in all of this, i.e., that the war is seemingly waged against their own people and instead of benefiting the country it is contributing massively towards destroying the social and economic fabric of our society, undoing a society already straining under various political and ideological challenges.
Take the example of our Foreign Minister, Shah Mahmood Qureshi being mercilessly heckled while barely getting ready to address a seminar on media freedom in London blissfully oblivious of the war waged to silence the media back home.
Such factories are at work 24/7 to give a favourable and palatable spin to the kind of tripe contained in the affidavit sworn by the accountability judge. Tragically, it is of little concern to those churning out half truths—which might, incidentally, massage their fragile egos at home and seemingly solve the problem at hand.
But such news makes Pakistan a laughing stock around the world, seriously denting its claim to be a constitutional democracy.
Let us now turn to legal remedies available to the accused where bias of a judge is quite manifest from the available evidence and the surrounding circumstances like in the present case. In a case where an appeal against conviction is pending before an appellate forum the best course open to an accused is to present the available evidence before the court.
Mian Nawaz Sharif may file an application under Section 428 Criminal Procedure Code (CrPC) for placing additional evidence before the Islamabad High Court in the form of a) the judge’s video confessing passing judgment under the pressure of blackmail along with its transcript and, more importantly, b) relying on the Islamabad High Court’s (IHC) administrative decision to dispense with judge Arshad Malik’s services as an accountability judge which, it may be argued, clinches the argument in favour of an acquittal or a retrial.
One could argue that before the judge’s formal removal by IHC, there remained a hurdle of admissibility of the video evidence the authenticity of which could only be established by the makers of those videos (presumably there are more than one) along with the identification of the instrument with which those were made.
But after the recent explosive developments the high court could reasonably infer enough bias to either acquit the accused, Mian Nawaz Sharif, discharge him or order a retrial as it deems fit under the circumstances of the case under Section 423 of the CrPC.
A similar question came up before the Supreme Court in a case titled Asif Zardari V State (PLD 2001 SC 568) in which the Supreme Court held that there was enough bias to vitiate the trial and a retrial was ordered.
Although the basic flaw in the judgment/sentence could be inferred from the audio tapes between one of the judges (Justice Qayyum) holding the trial and the then Chief Justice of Lahore High Court and some senior PMLN ministers, yet the apex court based its decision to quash Asif Zardari’s conviction on some other evidence available on record.
Like, the judge and his wife getting diplomatic passports despite strong objections from the Foreign Office, the manner in which benches were formed to hear the reference and the case fixed before those and the way trial was conducted by the judges amongst other factors.
It may be interesting to note that in Asif Zardari’s case, Justice Qayyum, despite knowing that there was ample evidence establishing bias of the bench against the accused, preferred not to resign before the Supreme Court reached a conclusion that ordering a retrial was a just decision through its judgment under the circumstances.
Compare that with the present case where in view of sufficient evidence the Islamabad High Court has deemed it fit to remove Judge Arshad Malik from his current post as an Accountability Judge.
Legal niceties and statutory provisions apart, bigger and much more disturbing questions need to be answered forthwith by the state which concern the health of our economy which seems to be on a ventilator. The really alarming aspect of the whole charade is that problems which need rational and pragmatic solutions are being dealt with by spreading more fake news and with lurid stories of last government’s alleged corruption, as if such angry tirades are going to fix the economy.
The country needs a national dialogue on the economy not the kind of knee jerk reactions by an army of spokespersons meant to get sadistic pleasure at having infantile digs at every step of the political debate.
Business confidence is a must for our survival, a number of people will tell you they have never witnessed such a vulnerable Pakistan in its more than seven decades of existence. Locking up and persecuting political opponents can never be a substitute for a sound and consistent economic policy even if it means freeing all political prisoners hauled up on laughable charges of corruption, drug smuggling or working against national interest. The present disastrous collaboration between the PTI government and its military backers has brought the country to such a point of no return that, at times, it seems, despite all his flaws, only Ishaq Dar, the erstwhile finance minister of the Nawaz Sharif government can resurrect investor confidence.
Tariq Bashir is a Lahore based lawyer. Follow him on twitter @Tariq_Bashir