Justice on trial

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

The Punjab police, the Punjab government or someone in the Lahore High Court has leaked to The News extremely disturbing information suggesting that a senior judge of the Lahore High Court offered to protect a proclaimed murderer and fugitive of the law. The allegations spring from the confessional statement of Faiz Rasool who was recently arrested by the Punjab police in Malaysia with the help of Interpol and was later killed in a police encounter on Jan 17. According to the leaked confessional statement of Rasool, he entertained the judge in Dubai, sponsored his promiscuity and bought wedding gifts for his daughter. In return the judge offered to quash all allegations against Rasool.

The story reported by Ansar Abbasi of The News is extremely incriminating not only of the unnamed judge as well as the Lahore High Court and our superior judiciary more generally, but also of our entire criminal justice system.

The ordinary perception in Pakistan is that our criminal justice system is a rotting monstrosity that needs immediate overhaul and correction if the promised contract between the state and the citizen is meant to have any sanctity. An unembellished aside in the reported confession is the alleged suggestion made by the judge that Rasool should quit murdering people himself and instead use the police to eliminate his foes. Many citizens already suspect that a regular moonlighting activity for policemen is to function as paid hit men and bandits.

The recognition of such reality and the lack of outrage over it is in itself a pitiful reflection on the rule of law condition in Pakistan. Regardless of whether the reported confession is true, it highlights how crooked our criminal justice system has become. For if the allegations are true, there cannot be a more shocking revelation than one suggesting that our judiciary is infested

not only with corruption but also criminality, and the guardians of justice have been transformed into patrons of crime. This episode could epitomise a new level of degradation where the line distinguishing the protectors of law in Pakistan from the felons might have been blurred beyond distinction.

And if the allegations are false, they highlight how the law enforcement agencies and their benefactors in government can fabricate evidence, concoct stories and leak information to the press that will instantly impeach the integrity of even those holding hallowed constitutional offices. This would amplify the brazen ability of the police to implicate even those in the higher echelons of our justice system who have been mandated under the Constitution to protect ordinary citizens from felons and excesses of state officials alike.

There cannot be a graver indictment of our brutish criminal justice system than the one handed down by Ansar Abbasi's report. Thus, inaction in face of such serious allegations is neither an option for the judiciary nor for the provincial and federal governments.

There are two equally pertinent questions here that need to be considered. One, whether the superior judiciary of Pakistan as part of our power elite is a holy cow that enjoys blanket immunity against accountability? And two, whether the provincial government is using state machinery and the media to orchestrate a scandalous drama to settle political scores with a hostile judiciary?

Let us consider the second question first. While The News report doesn't name the judge who is being implicated for maintaining links with the mafia, there is ample information within the story that makes apparent the identity of the judge in question. Thus, even without identifying the judge, the report on the one hand has impeached the integrity and reputation of a senior member of the Lahore High Court before the legal fraternity, and on the other has scandalised the court before the general public and has further depleted already scant public faith in the ability of our PCO-ridden judiciary to dispense justice.

Starting from the assumption that every citizen is innocent until proven guilty, the story against the judge seems curious in some ways.

Why, for example, was a wanted killer bumped off in an encounter after being arrested in Malaysia due to the valiant efforts of the Punjab police? Was Rasool's confessional statement implicating the judge sent to the chief justice immediately on being procured or after he was exterminated? Why was the story leaked to the press? Was it because the Lahore High Court chief justice had been sitting on the information for a while without acting on it, or simply to bring public pressure to bear on him? Is it a coincidence that the judge in question was the member of a bench that recently passed a distressing order against the top leadership of the PML-N? Do the facts mentioned in the confessional statement add up? Did the judge actually travel to Dubai before his daughter's wedding? Did he have any association with Ashfaq Bajwa, who lives in Dubai and is probably still alive?

Did Khalid Lone – the other individual mentioned in the statement allegedly known to the judge and Rasool – die before the wedding of the judge's daughter as hinted in the confession? Did the Punjab police verify and corroborate such facts before going public with its charges? We don't know the answers to these questions.

But given the seriousness of the allegations shared by the Punjab police with the LHC chief justice (and simultaneously with the public at large), there is urgent need for Mr Shahbaz Sharif to order an impartial inquiry into this incident, in consultation with the LHC chief justice, to ascertain all related facts that the government can muster, and dispel the suggestion that the PML-N government in Punjab might be engaging in the witch-hunt of a judge who rendered an unfavourable verdict against the Sharifs. If the confessional statement and the suggestion that a judge of the high court has criminal nexus with the underworld turns out to be a conspiracy hatched by the Punjab police to blackmail the judge, the government must take stern action.

There can be nothing more damaging to public faith in judicial propriety than for a contrived report to be deliberately leaked to the press with the explicit objective of scandalising the court and its gatekeepers. On the other hand, it is equally essential not to shoot the messenger. It is the duty of the media to bring before the public any charges of abuse of public authority that are brought to its attention. However, it is for the government to ensure that it has in place effective internal checks and balances that prevent premature disclosure of confidential information to the public. This is how democratic societies the world over balance government's interest in protecting confidential information with public interest in freedom of speech and information.

And this is what brings us back to the first question about judicial accountability and the need to institute transparent procedures to hold judges answerable, in the absence of which resort to public accountability through the media remains the only option.

There is a widely shared perception in Pakistan that our power elites are beyond the pale of law and accountability. The impression was lent further credence by the National Accountability Ordinance of Gen Musharraf that left the generals and the judges outside the scope of accountability. Unfortunately, our power elites have defined loyalty and camaraderie to mean an obscene form of cronyism where you protect and defend your comrades no matter how rotten their deeds and indefensible their malice, as was evident more recently in the Farah Dogar case. This attitude transforms the permanent wielders of public authority into holy cows that share no burden of accountability for abuse of state power that they hold as trust on behalf of their compatriots.

And the sense that this power elite is above the law then breeds contempt amongst ordinary citizens who need personal patronage of someone from the elite club to have access to justice and the benevolence of the state. This state of affairs where men rule, and not law, must change.

To the extent that an appalling charge has been levelled in full public view against a senior member of the superior judiciary, the only option available to the chief justice of the Lahore High Court is to propose that an independent and transparent inquiry be held into the matter. And the judge whose integrity has been impugned should not only face such inquiry but also encourage it in order to clear his name. Many judges in the past, such as Malik Qayyum and others of dubious integrity, have chosen to resign instead of facing the charges brought against them. This is an unhealthy tradition that needs to be discouraged. Just because a high-ranking state official elects to quit doesn't take his culpability away.

The Ansar Abassi report highlights many abhorrent aspects of our criminal justice system that need to be squarely addressed if we wish to abide by rule of law in this country. Shoving this matter under the carpet will certainly not stem the fast-spreading rot.



Email: sattar@post.harvard.edu