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Legal eye The writer is a lawyer based in Islamabad.

Proponents of the rule of law movement believed that hardearned judicial independence would deliver a court capable of dispensing justice while being oblivious to partisan considerations. Wasnt the rule of law that they struggled for meant to be more than replacing the whims of the executive with the whims of the judiciary? Were these unrealistic expectations to start with? Was the French novelist Jean-Baptiste Alphonse Karr actually predicting the impact of the lawyers movement when he remarked that, the more things change, the more they stay the same? The Arsalan Iftikhar matter was a litmus test for the post-March 2009 Supreme Court. If the original order was wanting, the ruling in the review petition is simply excruciating. The thinking that has produced this ruling would certainly fail the logical reasoning part of any decent aptitude test. It is settled law that the scope of a review is extremely narrow, that the court rarely exercises this jurisdiction, and it only does so to correct blatant errors floating on the surface of the record. While digesting the 17-page order one struggles to comprehend the errors entered into by the court that needed correction. The ratio of the ruling seems to be twofold. The first part of the argument is that back in 2007 the attorney general represented Malik Riaz in a matter before the Lahore High Court; the attorney general did not disclose this fact to the Supreme Court; had the court known it would not have entrusted him with the responsibility of setting the machinery of state in motion to investigate the matter. A word about the learned attorney general at the outset: he might have a personal score to settle with the lordships that removed him from the office of Prosecutor General NAB; and his utterances within and outside the court might not project him as an amiable fellow supportive of the judiciary. But

can an unlikeable attorney general be a valid legal ground for accepting Arsalan Iftikhars review petition? The court doesnt say how the attorney general is conflicted in carrying out the instructions of the court in this, that were limited to setting into motion the states investigation machinery. It doesnt say how delegation of a non-discretionary mechanical function to the attorney general could prejudice the rights of Arsalan Iftikhar. The fact that he did not disclose that he once held a brief for Malik Riaz is presented as proof of conflict of interest prejudicial to Arsalan Iftikhar. The second prong of the argument that the attorney general transgressed the terms of the Supreme Court orders is even more preposterous. The court reproduces the letter the attorney general wrote to chairman NAB conveying his expectation that NAB would constitute a broad based team comprising honest and competent officers to investigate the matter in accordance with the law, highlights a few random words and sentences, and then presents the same as proof of the attorney generals transgression. To summarise, the logic of the courts legal reasoning is as follows: because the attorney general did A, it has to be obvious to all and sundry that he did B and hence the error that needs correction through exercise of review jurisdiction to protect the legitimate interests of Arsalan Iftikhar. In the same mode of circular reasoning, the apex court declares that the investigation team constituted by the NAB was unfair and incompetent. The finding that the officers of the investigation team were employing menacing thana mentality in dealing with the registrar Supreme Court strains credulity. The context of the matter seems lost on the lordships: the Supreme Court standing up in support of its senior most administrative officer when called to provide information about the chief justices son is not akin to protecting an average Joe against heavy-handed treatment meted out by oppressive security agencies. It resembles the mighty taking down to the lowly constable, not an uncommon occurrence in Islamabad.

It is the remedy proposed by the review judgment that is most painful and indicative of the harm being caused by the manner in which suo motu jurisdiction is being exercised by the SC. In every criminal matter the job of the defence is to poke holes in the story weaved together by the investigators. The Arsalan Iftikhar review case seems to lay down new law: if you can prima facie establish that an investigation against you is not being conducted fairly, you have a right to ask the court to suspend functioning of the state investigation machinery and replace it with a standalone investigation commission reporting directly to the apex court. Exercise of suo motu powers by the Supreme Court is only justifiable as an extraordinary measure to attack injustices that our moth-eaten institutional structures are incapable of addressing at the moment. Such exercise will be beneficial in the long term only if deployed by the Supreme Court to throw its weight behind traditional institutions to strengthen them as opposed to presenting suo motu as an alternative to traditional institutions and processes. The Arsalan Iftikhar case establishes that suo motu powers are now being used not only to sidestep ordinary judicial processes, but also to circumvent the authority and jurisdiction of investigative and prosecutorial components of the criminal justice system that fall within the executives domain. It wouldnt be a big deal if the Arsalan Iftikhar case just made bad law. This case is symptomatic of a larger malaise: a selfrighteous, egotistical, pro-status-quo court that lacks the courage to indulge in self-accountability, that is devoid of an institutional vision capable of fixing our broken justice system, and that is now being stripped of the moral authority required to make obedience of court verdicts a social norm. When Farah Dogar got admitted into a medical college out-of-turn, people were not irked only because they disliked Justice Abdul Hameed Dogar. It was the mantle of justice corrupted by nepotism that was worrisome.

For the same reasons, the story of Chief Justice Iftikhar Chaudhary throwing the weight of his office behind his sons career was equally worrying. It was only when General Musharraf fired the CJ using that as an excuse that people rose up against the bigger wrong: the molestation of the Constitution, judicial independence and rule of law. Post March 2009, the proponents of rule of law hoped that the restored judges would emerge as the harbingers of change. This was not because the restored judges were all angels and had an untainted non-PCOed past. But because there was a sense that personal experiences of deposed judges during the lawyers movement together with uninhibited public support for their restoration and the aspirations linked to such events might have had a transformational impact on these judges. The Arsalan Iftikhar case has sobered the hopes of many who saw a restored Supreme Court led by CJ Iftikhar Chaudhary as an effective means to entrench rule of law in the country. We have won judicial independence, but it seems to have replaced the rule of one set of men with the rule of another set. The court is certainly a new locus of power in our polity, but preservation and use of power must not become an end in itself. A self-righteous court that starts to believe in its own rhetoric as it lives off goodwill accumulated during a historic event is most of all a danger to its own credibility and purpose. It is still not too late for introspection and course correction. At the beginning of a new judicial year, the lordships might wish to ponder the words of Justice Stephen Breyer of the US Supreme Court: Public trust does not follow automatically from the existence of a written constitution. It must be built, and once built, it must be maintained. Email: sattar@post.harvard.edu