Saad Rasool |
On Friday, a three-member bench of the honorable Supreme Court of Pakistan delivered its detailed judgment in the ‘video scandal’ case of Judge Arshad Malik, along with its possible impact (if at all) on the conviction of Nawaz Sharif. This measured judgment, authored by the honorable Chief Justice himself, must be prescribed as necessary reading for anyone interested in understanding the manner in which Pakistan’s political elite have manipulated the system and managed to stay in power for more than twenty-five years.
Facts concerning Judge Arshad Malik’s video, and the background maneuvering at play, are deeply nauseating. In summary, the judgment of the honorable Court recounts that, per PML-N’s stance, Judge Arshad Malik “had asked for a meeting so as to express his remorse on having convicted Mian Muhammad Nawaz Sharif under pressure from ‘certain individuals’”. This meeting was “allegedly recorded”, and shows “the learned judge dictating grounds of appeal” against his own judgment, under the pretext that he had been blackmailed into convicting Nawaz Sharif, without “concrete evidence” against him.
The entire saga of Judge Arshad Malik and his videos is perhaps the most damning episode of our checkered judicial history.
In response, Judge Malik issued a press release, claiming that the conversations in the video had been “distorted and twisted”, and claimed that, during the course of the trial, he was “offered bribe and was also threatened with dire consequences”, should he fail to “cooperate and acquit” Nawaz Sharif. Later, a solemnly sworn affidavit of Judge Malik was also submitted before Islamabad High Court (IHC), containing “details of the pressures applied and the temptations and bribe offered”.
Pertinently, the affidavit claims that “a secretly recorded manipulated immoral video in a compromising position” was used to blackmail and coerce the Judge, in addition to offering “a hefty sum” as bribe, by Sharif family members and associates, so as to procure a judgment in favor of Nawaz Sharif.
In this backdrop, three constitutional petitions were filed before the honorable Supreme Court praying, inter alia, that: (1) an inquiry commission be constituted by the honorable Court, “so as to find out the truth of the allegations and counter-allegations”, and (2) contempt proceedings be initiated against all persons “who had tried to malign the judiciary”.
The honorable Court was also urged to deliberate upon what impact, if any, these events have on the conviction and pending appeal of Nawaz Sharif. Simultaneously, the honorable Court was informed by the Attorney General that FIA was investigating the matter concerning the videos, that relevant FIRs had been registered, and ancillary legal proceedings had been initiated in accordance with law.
A three-member bench delivered its detailed judgment in the ‘video scandal’ case of Judge Arshad Malik, along with its possible impact (if at all) on the conviction of Nawaz Sharif.
Consequently, the honorable Supreme Court decided to frame and address, five specific issues: (1) What court/forum could meaningfully attend to the video? (2) How could the video “be established as a genuine piece of evidence”? (3) How the subject video could be “proved before a court of law”? (4) What “effect” could this video have upon the conviction of Nawaz Sharif? And (5) What consequences would this entail for Judge Malik?
Judgment of the honorable Court goes on to address each of these issues in detail. Specifically, in response to the first issue, the honorable Court ruled that there is no need for an inquiry commission to be constituted, which “can only render an opinion in the matter” and such opinion “cannot per se be treated as evidence” before a court of law. As such, the judgment clarifies that IHC is the only appropriate forum for the video to be produced, for it to be of any consequence to Nawaz Sharif’s pending appeals.
In terms of the second and third issue, the honorable Court observes that “a forensic examination, audit or test” must be conducted to ascertain the genuineness of the video and to ensure that the same has not been “edited, doctored or tampered with”. Also, the august Court observed that per Article 164 of the Qanoon-e-Shahadat Order, 1984, along with established precedents of the superior Courts, admissibility of the video, as evidence, depends on a number of factors including, inter alia, its chain of “safe custody”, source, identification of the people involved, corroborating evidence, and forensic test.
The Court further points out that, under Section 428 of CrPC, such factors may be looked into by the appellate court (IHC) “on its own or upon an application of the party to the appeal”. In the instant case, however, no such application has been made to the IHC by Nawaz Sharif or his family members. Most importantly, in response to the fourth issue, the Court declares that it is for the IHC to determine “whether the conduct of the learned judge”, pursuant to the video, “had caused any prejudice” in Nawaz Sharif’s judgment.
The honorable Court was also urged to deliberate upon what impact, if any, these events have on the conviction and pending appeal of Nawaz Sharif.
To this end, if the IHC comes to the conclusion that “the process of trial and the evidence recorded during the trial were not affected by the conduct of the learned Judge”, the IHC “shall have the option either to reappraise the evidence itself and decide the appeal on its merits” or “to remand the case to the trial court for re-deciding the case after hearing of arguments of the parties on the basis of the evidence already recorded”.
In the instant case, since no one has cast any doubt on the actual evidence recorded, which stands admitted, such evidence may only be reappraised (not re-recorded) by the Trial or Appellate Court, for the purposes of rendering a final verdict. The final issue, concerning the fate of Judge Malik, seems to have been sealed. He has already been relieved of his position, repatriated to LHC, and departmental disciplinary proceedings have been ordered against him.
The honorable Court’s judgment, candidly, accepts that the “sordid and disgusting conduct” of Judge Arshad Malik has “made the thousands of honest, upright, fair and proper Judges in the country [to] hang their heads in shame”. Notwithstanding this erudite judgment of the honorable Supreme Court, it is important to pause for a moment and take stock of this deplorable state of affairs. On the one hand, we have Judge Arshad Malik, whose conduct and history forms an indelible blotch on our judicial conscience.
The fact that a man of this caliber exists in our judicial structure, and would have continued to rise through the ranks (were it not for these cataclysmic events) is an indictment of our judicial structure, its recruitment, as well as it monitoring. How he continued to be blackmailed since early 2000s, and what atrocities he must have committed in the name of justice since then, is almost unimaginable. How many other Arshad Maliks exist within our judicial ranks, undetected, is a question that will haunt our system of justice for decades to come.
The Court further points out that, under Section 428 of CrPC, such factors may be looked into by the appellate court “on its own or upon an application of the party to the appeal”.
On the other hand, we have those who aspire to hold the highest political office in our land; people who specifically got Arshad Malik appointed as judge of the Accountability Court, then made an application to transfer their cases before him, then offered him bribes to render a favorable judgment, met with him behind closed doors, used blackmailing tactics, and eventually outed him in a national press conference. These are people who have been eager to arrive at some understanding with the judge, and met with him outside of Pakistan to offer bribes, instead of appearing before the Court of law.
These people have no justification or money trail for their exorbitant wealth because they have never needed to concern themselves with such legal inconveniences. Why should they when they can just buy the Arshad Maliks of our system, or blackmail them, or put in a call with Malik Qayyum. And after all this, they still want to be elected to the highest office in our land. If for no other reason than to simply perpetuate the system of Arshad Maliks that will never question the emperor who is wearing no clothes.
The entire saga of Judge Arshad Malik and his videos is perhaps the most damning episode of our checkered judicial history. The honorable superior Courts will have to put in place rigorous monitoring mechanisms, in addition to improved recruitment policies, to ensure that some measure of public confidence in our judicial system is restored. This, for all intents and purposes, is the only yardstick through which judicial leadership will be measured in the coming months and years.
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at firstname.lastname@example.org, or Twitter: @Ch_SaadRasool. This article was originally appeared at The Nation and has been republished with author’s permission. The Views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.