Saad Rasool |
The saga of Judge Arshad Malik has marked a new low in the already checkered politico-judicial history of Pakistan. It has struck an arrow through the heart of our judicial system, and lay bare an unspoken reality about the project of justice: that judicial officers, from time to time, are malleable to influence from outside political and institutional pressures.
The precise version of facts concerning Judge Arshad Malik is still unclear, and subject to further investigation. But regardless of what version of the assertions is true – Maryam Nawaz’s video or the Judge’s affidavit – one fact has become indisputable: that Judge Arshad Malik is entirely unfit to hold any judicial office, and must be prosecuted for violating his solemn oath of impartiality.
The Judge reveals that he knew Nasir Butt and his brother Afzal Butt from Rawalpindi; that during the course of Nawaz Sharif’s trial, he was offered bribes, and threated with dire consequences in the event of non-cooperation.
Let us briefly review the facts, as claimed by the concerned parties:
A summary of the facts, as asserted by Maryam Nawaz during her explosive press-conference, is as follows: that one fine day, Judge Arshad Malik contacted his old friend Nasir Butt (a PML-N worker), and asked for a meeting to express the Judge’s remorse on having convicted Nawaz Sharif, under pressure from ‘certain individuals’ of the State. The meeting took place at that Judge’s own residence, and was also attended by Nasir Butt’s stenographer.
The video, recorded in a clandestine manner, shows the judge dictating grounds for appeal against his own judgment, and claiming that there was no evidence or justification for convicting Nawaz Sharif. Most importantly perhaps, the Judge revealed that ‘certain individuals’ confronted him with an embarrassing video of from his past, and encouraged him to decide the case the case against Nawaz Sharif. The judge acquiesced. And this burden lay heavy on his conscience. As a result, by helping Nawaz Sharif (through Nasir Butt), the judge was trying to clear his conscience and rectify the wrongs.
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Against these allegations, Judge Arshad Malik presented two statements in his defence. The first, a short press-release presented on Sunday (the day after the press-conference), claims that the conversation in the video has been distorted against true facts. The Judge reveals that he knew Nasir Butt and his brother Afzal Butt from Rawalpindi; that during the course of Nawaz Sharif’s trial, he was offered bribes, and threated with dire consequences in the event of non-cooperation.
The Judge claims that he did not yield to these tactics. And to prove this assertion, he points to fact that he exonerated Nawaz Sharif in one case, while convicting in the other, based entirely on the facts and evidence available on the record. In conclusion, he reasserts that he was not under any influence, direct or indirect, from any third party. And that his decision was on based entirely on the merits of the case.
In days following this flimsy press release, Judge Arshad Malik was summoned to meet the acting Chief Justice of Islamabad High Court, the honourable Justice Amir Farooq; who, after meeting Judge Arshad Malik, also met with the Chief Justice of Pakistan.
There is no excuse for why Judge Arshad Malik did not bring these events to light before the honourable monitoring Judge. There is no excuse for him to have heard the case, while simultaneously participating in these meetings and conversations.
Simultaneously, on the said day, 11th of July, Judge Arshad Malik submitted a solemnly sworn affidavit, presenting his detailed assertion of (alternative) facts. This affidavit, which has now been formed part of the record concerning Nawaz Sharif’s appeal before the honourable IHC, introduces new characters to this unfolding story, and (in summary) asserts as follows: that soon after Judge Arshad Malik’s appointment in the Accountability Court, in February 2018, he was contacted by Mahar Jilani and Nasir Janjua. The said Nasir Janjua claimed that Judge Arshad Malik had been appointed in the Accountability Court “on his specific and personal recommendation to an influential person in the then PML-N government”.
That subsequently, in August 2018, the Flagship Reference and HME Reference were transferred to the Court of Judge Arshad Malik (on the specific application of Nawaz Sharif’s counsel). The Judge claims that while the trial of these references was underway, he was “approached on a number of occasions by associates and supporters of Mian Nawaz Sharif with demands, inducements and threats to acquit Mian Nawaz Sharif and the other accused”. Specifically, he claims that Nasir Janjua and Mahar Jilani met him at a social gathering and warned him that deciding against Nawaz Sharif will be “very damaging” to him.
Thereafter, while the arguments were underway, Nasir Janjua made “a financial offer quoting Mian Nawaz Sharif”. Specifically, Nasir Janjua claimed that “he had the cash equivalent of Rs. 100 million in Euros”, out of which “Euro equivalent of Rs. 20 million was laying in his car parked outside”.
The Judge claims to have declined these bribes, after which one Nasir Butt approached him with a “thinly veiled threat of physical harm” so as to procure Nawaz Sharif’s acquittal.
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Judge Arshad Malik’s affidavit further claims that even after rendering the verdict, in the last week of December, 2018, he was approached by Khurram Yousuf and Nasir Butt, who asked him whether Nasir Janjua had shown him the “the Multan video”. Thereafter, another acquaintance Mian Tariq and his son visited Judge Arshad Malik and showed him “a secretly recorded manipulated immoral video in a compromising position”.
By way of blackmailing through this video, Nasir Janjua wanted to record “an audio message” of Judge Arshad Malik, for the “satisfaction of Mian Nawaz Sharif”, claiming that the conviction had been handed down under immense pressure, without any evidence or proof. Per the affidavit, subsequently, under the threat of the video, Nasir Butt “demanded” that Judge Arshad Malik “accompany him to Jati Umra”.
Consequently, on 06.04.2019, Judge Arshad Malik visited Jati Umra and was personally received by Mian Nawaz Sharif. When the Judge tried to justify his verdict, based on evidence, Nawaz Sharif “was obviously displeased”. To recompense for this displeasure, Nasir Butt sought the Judge’s assistance with drafting of the grounds of appeal, which meeting and assistance became the subject matter for Maryam Nawaz’s press conference.
Removal of Judge Arshad Malik is the least that could be done. Mere removal does not recompense the damage he has caused to the case, and more importantly, to judicial integrity in this land.
Separately, the affidavit claims that Judge Arshad Malik went for his Umrah on 28.05.2019. During his stay in Madina, on 01.06.2019, Nasir Butt met with him and, through coercion, took him to meet Hussain Nawaz Sharif. An aggressive Hussain Nawaz offered the Judge “a cash bribe of Rs. 500 million”, and desired that Judge Arshad Malik resign his post on the pretext that he “could no longer deal with the guilt of having convicted Mian Nawaz Sharif under duress and without evidence”. In the affidavit, Judge Arshad Malik claims to have denied this offer. This denial, the Judge asserts, resulted in Mariam Nawaz’s Press Conference 06.07.2019.
Regardless of how one views the claims made by Mariam Nawaz through the video, or the ones made by Judge Arshad Malik though his affidavit, there is no way to deny the fact that the Judge’s conduct was inexcusable. Especially in a case that was being directly monitored under the auspices of Justice Ijaz-ul-Ahsan of the honourable Supreme Court.
There is no excuse, whatsoever, for Judge Arshad Malik to meet (per his own affidavit) with Nasir Butt, Nasir Janjua, Mahar Jilani, Khurram Yousaf, Hussain Nawaz or Nawaz Sharif himself. There is no excuse for why Judge Arshad Malik did not bring these events to light before the honourable monitoring Judge. There is no excuse for him to have heard the case, while simultaneously participating in these meetings and conversations. There is no excuse, even under duress, for him to have dictated or assisted in the grounds of appeal. And there is certainly no excuse for him to act as though he is the real victim in this bizarre turn of events.
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In many ways, the story of Judge Arshad Malik is no different than the story of Nawaz Sharif himself; in that, even if the facts as narrated by Judge Arshad Malik himself are deemed to be 100% true, the Judge has violated his solemn oath, broken all barriers of propriety, made a mockery of the justice system, and rendered a decision that will forever be deemed tainted in the eyes of law and principles of natural justice.
Removal of Judge Arshad Malik is the least that could be done. Mere removal does not recompense the damage he has caused to the case, and more importantly, to judicial integrity in this land. Regardless of what happens with Nawaz Sharif and his family (whose case will be decided per its own merits), Judge Arshad Malik must be made an example for those who seek to browbeat coerce, bribe or blackmail participants of the judicial system. Only in this way can be infused credibility in Nawaz Sharif conviction, and much more importantly, in the overall project of justice in Pakistan.
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 saad@post.harvard.edu, 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.