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Tuesday, September 26, 2023

Judge Arshad Malik’s misconduct may help reform the judiciary

A Harvard Law School graduate asks, "What about the many other Arshad Maliks, who decide thousands of cases for Allah Dittas across Pakistan, every day? Should they all make secret videos of their respective judges, before meaningful action is taken?"

On Friday, the Administrative Committee of the honourable Lahore High Court—consisting of the seven senior most judges, headed by the Chief Justice—dismissed the infamous Judge Arshad Malik from judicial service. This decision of the LHC, which was all but inevitable, is being celebrated by PML(N) as a vindication of Nawaz Sharif’s innocence – in light of the Judge’s video admission concerning lack of evidence against Nawaz Sharif; the PTI coterie, on the other hand, is trying to spin this moment through the (weak) prism of Judge Arshad Malik’s affidavits – which claim that he was being pressured and bribed by PML(N) leadership.

Unfortunately, amidst this partisan chatter, important legal and institutional issues are being ignored: what does Arshad Malik’s saga mean for the credibility of our judicial system? What structural changes, if any, are being contemplated to ensure that people like Arshad Malik are never entrusted with a seat of judicial power again? And what (legal) effect, if at all, do these events have on the pending appeals of Nawaz Sharif?

What was Judge Arshad Malik’s tale?

Let us start with a brief background, so as to lend perspective to the issues at hand.

Read more: Judge Arshad Malik: A hard pill to swallow for PML-N

Facts concerning Arshad Malik’s tale are deeply nauseating. As recounted in a judgment of the honourable Supreme Court, back in August of 2019, PML(N) claims that 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 the former premier.

In response to the video, Judge Arshad Malik issued a press release, claiming that the conversation in the video had been “distorted and twisted”; that during the course of Avenfield trial, PML(N) had “offered bribe” and threatened him “with dire consequences”, should he fail to “cooperate and acquit” Nawaz Sharif.

Later, Arshad Malik also submitted a solemnly sworn affidavit before the honourable Islamabad High Court (IHC), containing “details of the pressures applied and the temptations and bribe offered”. Importantly, the affidavit claimed that he had been offered “a hefty sum” as bribe, by Sharif family members and associates, so as to procure a judgment in favour of Nawaz Sharif.

Supreme Court called in to identify the truth

In this backdrop, the honourable Supreme Court was petitioned to, inter alia, “find out the truth of the allegations and counter allegations”, and clarify what impact, if any, these revelations might have on the conviction and pending appeal of Nawaz Sharif. The honourable SC proceeded to frame 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 honourable Court, authored by the then CJ Khosa, addressed each of these issues. The SC clarified that the IHC, where appeals against Nawaz Sharif’s convictions are pending, is the only appropriate forum for the video to be produced, for it to be of any consequence to Nawaz Sharif’s pending appeals.

The IHC, once petitioned, would have to conduct “a forensic examination, audit or test” of Arshad Malik’s video, in order to ensure that it has not been “edited, doctored or tampered with”, and meets the legal requirements of Article 164 of the Qanoon-e-Shahadat Order, 1984. Till date, however, no such application has been made to the IHC by Nawaz Sharif or his family members.

Read more: Justice Isa’s case: making sense of the judgement & its aftermath

Did the video leak impact Nawaz Sharif’s trial?

The honourable SC declared that the IHC (at the time of hearing the appeal) will be the competent forum to determine “whether the conduct” of Arshad Malik, pursuant to the video, “had caused any prejudice” in Nawaz Sharif’s judgment.

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”.

The SC clarified that, since no one had 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.

And, in response to the final issue, concerning the fate of Judge Malik, the honourable SC noted that the “sordid and disgusting conduct” of Judge Arshad Malik, which had “made the thousands of honest, upright, fair and proper Judges in the country [to] hang their heads in shame”, must be decided by the relevant High Court, in accordance with law.

The relevant High Court, for Arshad Malik, was the LHC, which rendered its decision (dismissing Arshad Malik from judicial service) on Friday.

Credibility of judicial system dealt a blow

But away from these fleeting political consequences, there is the larger issue of how Arshad Malik’s judicial legacy has delivered a debilitating blow to the already waning credibility of our system of justice. This, for all intents and purposes, is the most serious and lasting impact of Arshad Malik’s saga. And one that our politico-judicial structure has done nothing about!

To this end, it is important to point out that Arshad Malik’s video was released by PML(N) in the summer of last year. Since then, it has been debated across media waves ad nauseum. It has been looked into by government officials and the honourable Supreme Court itself. Yet, during this time, no institutional reforms for district judiciary have been introduced by the government or the bench. Interestingly, none have been demanded by the aggrieved party (PML(N)) either.

The provincial High Courts, which have administrative control over the subordinate district courts, have taken no steps to develop an improved policy or criteria for judicial recruitments, in order to ensure that the likes of Arshad Malik are not appointed to seats of justice. There has been no dialogue, in the bar or the bench, about introducing rigorous monitoring mechanisms, or incisive performance benchmarks, or better promotion guidelines for the district judiciary, which ensure that some measure of public confidence is restored in our broken judicial system.

Read more: Hum Dekhein Gey: How Innocent Nawaz Sharif Really is?

In terms of the Arshad Malik case, our judicio-polity seems to be focused on one thing alone: its impact on Nawaz Sharif. But what about the many other Arshad Maliks, who decide thousands of cases for Allah Dittas across Pakistan, every day? Should they all make secret videos of their respective judges, before meaningful action is taken? The Malik Qayyum incident (regarding a phone conversation with Shehbaz Sharif) happened more than twenty years ago. What institutional mechanisms were introduced to curb such behaviour then? None at all. Just the way none are being taken today.

The credibility of our judicial system is teetering. Social media is aflush with pun (concerning grant of bails) in the honourable Lahore High Court. During the course of Justice Isa’s case, all sorts of (unwarranted) comments and aspirations were cast against the honourable Supreme Court.

Opportunity for judicial reforms

And the abominable episode of PIC, along with other instances of ‘wukulagardi’, continue to demonstrate the deep malaise within our bar culture. In the circumstances, the Arshad Malik case must be seen as an opportunity to have a purposeful conversation about reform in the district courts. The superior judiciary can take the lead in this conversation, and demonstrate that ‘judicial reform’ is not at odds with ‘independence of judiciary’.

Read more: Will judicial activism enable JIT to get accountability?

Such a move will cost the bench nothing; and in the process, it might help in stemming that gaping credibility rot, which mars the heart of our judicial structure.

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 originally appeared at The Nation and has been republished with the author’s permission. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.