By Najam Sethi
17 Jan 2014
Ex-CJP Iftikhar Mohammad Choudhary’s interventionist legacy is alive and kicking. The pronouncements and decisions of High Court and Supreme Court judges are regular grist for the media mills. The superior courts are seriously impinging on appointments and transfers in government, initiating investigations and directing criminal proceedings, and even questioning, enlarging or reducing the ambit of parliamentary laws, presidential ordinances and government SROs. Occasionally, they have even strayed into the ambit of the army’s sacred preserves, as for example in the missing person’s cases, and foreign policy, as for example when the Peshawar High Court ordered the government to stop the drones, if necessary, by shooting them down.
Such interventions are not always for the common good, especially when discrimination, prejudice and conflict of interest issues are obvious to all except the judges. The irony in holding everyone accountable to the courts lies in the fact that the judges have ruled themselves unaccountable to any institution, including parliament. A recent TV show exposed significant misuse of power in a high court, only to be angrily ticked off by the registrar of the court.
Two high profile ex-presidents are in the dock making headlines. General (retd) Pervez Musharraf is charged with treason before a special court while Asif Zardari is accused of assorted corruptions before NAB courts.
General Musharraf is hogging the headlines. He has tried to avoid appearing before the special court – whose credibility has been challenged by eminent human rights activists and ex-President SCBA Asma Jehangir — by feigning illness in order to avoid a formal indictment. Amidst speculation that he might seek excuses to flee Pakistan, his supporters, especially the Chaudhries of Gujarat, claim that the ex-commando intends to stay and fight all the way, even as his lawyers have submitted a medical certificate from a Pakistani doctor claiming that General Musharraf needs urgent medical treatment abroad. The government’s position, however, suggests that there may not be a swift exit for General Musharraf and he may be obliged to go through the motions of a trial and deferments for some months at least. This is lent weight by the observation of the special court that the treason trial will follow the criminal procedure code of “due process”.
Asif Zardari’s cases have been dusted off the shelf since his presidential immunity ceased to exist. In all the cases pending in NAB courts, his co-accused have already been acquitted or absconded or passed away. In the 1997 SGS reference involving alleged kickbacks on a pre-shipment contract that allegedly went into offshore accounts, an accountability court has absolved all accused, except Mr Zardari and Benazir Bhutto (who has passed away). Similarly, in the Cotecna case, A R Siddiqui, the sole accused apart from Mr Zardari and Ms Bhutto, was acquitted in September 2011. In the ARY case in which the grant of a licence to Ary Traders for the import of gold and silver allegedly caused a loss to the public exchequer, the NAB court has acquitted Brig (retd) Aslam Hayat Qureshi, Salman Farooqui, Abdul Rauf, Jan Muhammad and Haji Abdul Razzaq Yaqoob, while the case against Benazir Bhutto was withdrawn following her death and the court has listed Javed Talat and Jens Schlegelimilch as proclaimed offenders. In the Polo Ground case, it is alleged that Mr Zardari ordered the illegal construction of a polo ground and other ancillary works at the Prime Minister House in Islamabad in violation of rules and procedures. In this case the court has acquitted Saeed Mehdi, a top bureaucrat now close to the Sharifs, while the case against Shafi Sehwani, a former chairman of Capital Development Authority, was withdrawn following his death.
In the Ursus tractors deal, Mr Zardari is alleged to have misappropriated kickbacks in the purchase of 5,900 Russian and Polish tractors at a cost of Rs150, 000 each for an Awami Tractor Scheme. An accountability court has acquitted co-accused Nawab Yousuf Talpur and AH Kango in the case. The Ursus tractors purchase deal allegedly caused a loss of Rs268.3 million to the ADBP and Rs1.67 billion to the State Bank.
Significantly, NAB officials say that the cases have been reactivated by the courts and not by them. Mr Zardari has made a fleeting appearance in court, all thumbs up, and then vanished like the Cheshire cat, leaving only his broad toothy smile in the air. Ex-Prime Ministers Yousaf Raza Gillani and Pervez Ashraf are also facing corruption charges and have had to humble themselves in the courts.
In short, the fate of ex-presidents, prime ministers, bureaucrats, politicians and even cricketers is in the hands of the courts. Unfortunately, not all court proceedings and judgments inspire confidence. If the height of partisanship was reached in the SC during the case of the son of the CJP last year, the consequences of the judgment and delays in the case of the PCB, which is still entrapped in appeals and proposed legislation, have hurt the national interest enormously.
Justice, we were taught, is blind. How true.