‘Had He Not Met Nasir Butt…’: In Arshad Malik’s defence
Barrister Awais Babar debunks the claims that Nawaz Sharif was the one who had bribed Judge Arshad Malik. “Compare this analysis to the rules of spot/match fixing in Cricket. Countless players have been penalised and suspended from International Cricket for not having informed the board at the time they were approached by the bookies”, he writes.
Imagine being a judge. The only time this post seems attractive is when a lawyer has just been told that he has qualified for becoming a judge. Not only do they get a handsome salary but are also protected from most of the problems of the society as long as they are doing their minimum best. For the remaining few, it is something more than a job; for them it is about upholding the law, not any further from it nor behind; albeit the consequences. Irrespective of which type the judge belongs to, most of the judges are competent and honest most of the times; however, there are exceptional circumstances when a judge is unable to judge.
The release of apparently a confessional video of Judge Arshad Malik was more like an intermission of a film whereby the director takes you by surprise. The conclusions you had predicted in your mind are suddenly shaken.
The apparent conclusions before the intermission were that the Islamic Republic of Pakistan has a very strong judicial and accountability system, that if two people Zardari and Nawaz Sharif were never born we would have been the superpower and that all those involved in the plot to oust the elected PM were men of honour, until the spoiler.
Judge Arshad Malik has now become the centrepiece in Nawaz Sharif case. There are basically two entities around this centrepiece. One entity wants to save Nawaz Sharif whereas the other wants to make sure that he remains out of politics. The former contends that the Judge was blackmailed in order to convict the former premier no matter the merits of the case, whereas the latter contends that it was the other way around and the judge was in fact blackmailed to obtain his acquittal. The truth lies somewhere between these two.
For a confession to be valid in law, there need to be two requirements established by the entity relying on it – the party seeking advantage from it. The first requirement is that it must not be coerced, meaning thereby that it should not have come out as a result of any pressure, intimidation or fear of consequences.
The second requirement is that it must not have come out as a result of inducement, meaning thereby that if an accused, for example, is promised that he will be set free if he confesses to the crime; such confession is not valid. The irony is that rather than determining these two legal factors the debate has been very smartly and shamelessly pushed towards other insignificant factors.
In my humble opinion and experience as a NAB defence counsel, there is no chance that Nawaz Sharif would have taken the risk of bribing or threatening the Accountability Judge as he was well aware that the establishment had destined it upon itself to ruin him and his family.
Had he done so, it would have come out straight away and would have created further problems and also helped the cause of state agencies. He knew very well that even if he tried to pressurise the judge, there were stronger entities who would easily counter it. Likewise, Asif Ali Zardari recently withdrew all his applications for relief from courts after his arrest, as he knows that this exercise to seek relief is a futile one at this stage.
Having said that, a perception is being created that attempt to bribe or threaten the judge was made by Nawaz Sharif. Regardless of the outcome of this situation, this perception has no legal value as the decision was given against Nawaz Sharif. It undoubtedly would have carried value had the Judge acquitted Nawaz Sharif as a result of the alleged threats made to him and only if later the judge or somebody else would have come up with the evidence that the judge was under pressure.
However, now that the decision has come against the accused and the judge had not at the time revealed about the alleged threats made to him, his claims that he was under immense pressure to acquit the accused, which he did not, has no legal weight as evidence and as such has no credibility.
Compare this analysis to the rules of spot/match fixing in Cricket. Countless players have been penalised and suspended from International Cricket for not having informed the board at the time they were approached by the bookies.
Every law has a rationale behind it. The rationale behind requiring the players to inform the board at the earliest opportunity after having been offered a bribe is that the delay gives rise to ambiguities with respect to the credibility of the player. And as such, these ambiguities eventually enable the authority to draw an adverse inference against the subject in question.
Let us apply the essence of spot fixing rules to the case of Judge Arshad Malik. Even if he really was offered bribe during the trial or was blackmailed, the fact that he did not report it has legally put the burden on him to give a good enough explanation for not having reported it at the time. In laws of spot/match fixing there is strict liability and no explanation is considered good enough for not reporting the incidents immediately. The question therefore is whether or not the rule of strict liability will also be applied to Judge Arshad Malik; as per the law it should be.
I personally have deep sympathies with Judge Arshad Malik. The judge was left with no choice but to blame it all on Nawaz Sharif. After the release of his apparent confessional video he was faced with the same situation he had encountered before.
On one hand was almost the whole State, Supreme Court, media and opposition, all literally asking the judge for a conviction; constantly pushing for a speedy trial. On the other hand was an accused, a three time elected PM with few of his followers hoping for an acquittal. The judge succumbed to the more powerful among the two, which of course, is the former and convicted Nawaz Sharif.
Whoever decides the outcome of this new controversy will also be in the same position as Judge Arshad Malik in essence. He too will have to succumb to the more powerful of the two entities; the State or a former PM. He too will be a human being, may have drank a glass of wine or two at some point, may even have forgotten about it, only to realise later that someone may have filmed him.
Every person who is performing an important task in this country is a Judge Arshad Malik in essence. Javed Chaudhry was very right when he wrote that one can have the most splendid life in Pakistan as long as one is unknown.
Before the release of scandalous tape involving the NAB Chairman, the latter used to emphasise a lot upon the rule of law and indiscriminate accountability process. However, the Chairman recently in a press conference moulded his principles and declared that he has reprioritised his tasks and would now catch those first who have been governing for two to three decades. He too succumbed to the stronger entity.
Very often members of PPP and PML-N are taunted and asked as to why they chose Justice Javed Iqbal as the Chairman in the first place now that they are complaining. No matter who they had chosen as the chairman, today’s scenario would almost have been exactly the same as is now. The real reason Justice Javed Iqbal was chosen was that both the government and opposition considered him to be the safest; it would be easy to keep him off their backs, they thought. They came to this conclusion owing to the passive career spent by the Honourable Justice, needless to mention the ineffective commissions under his chairmanship.
What they had actually forgotten or perhaps they do realise inwardly is that it makes no difference as to who they choose as the NAB Chairman, the chairman will always be the same. They were blinded in the same way as Zulfiqar Ali Bhutto was. Whoever in our history has gone for safe options, had to pay the price. General Zia-ul-Haq, President Farooq Ahmed Laghari, President and General Pervaiz Musharraf were all ‘safe options’, their appointers had thought; every time history proved them wrong.
We Pakistanis have very conflicted standards of morality. What has been revealed in the Multan video of Judge Arshad Malik made more than a decade ago, is disgusting to say the least, but who knows that he may have sought repentance from Allah various times? Who knows that Allah may even have forgiven him? But no, we feel compelled to remind a man of all his sins until he is dead. And then also remind their descendants of the sins their ancestors had committed.
The little conscience that was left of the Judge is the very reason he is in this situation right now. Had he not met Nasir Butt etc and confessed to have been under pressure from the state agencies, his sins would have remained under the carpet.
The Supreme Court recently remarked that this scandal had raised a lot of questions about the credibility of the whole justice system. With highest respect towards the Honourable Justices of the Supreme Court, all they need to see legally is whether or not the Trial Judge was biased. Was the conduct of Supreme Court while the trial was taking place not a big pressure in itself? Behind every great fortune, there is a crime?