The natural next step

April 23, 2001

During his infamous murder trial by Chief Justice Maulvi Mushtaq of the Lahore High Court, ZA Bhutto had cried bias, pre-judgment and dubbed his ordeal "the murder of a trial". But undeterred and oblivious to the scornful symbolism he was earning in history, Maulvi Mushtaq went on to complete the hatchet job. When history appeared to be repeating itself during Ms Bhutto's trial in the SGS kickbacks case, parallels were naturally drawn between the two cases. Mercifully, the Supreme Court's (SC) retrial order has ended the similarities.

While the political and moral context for retrying Ms Bhutto has changed with the flight of the Sharifs, in purely legal terms, SC's judgement is fair to both sides. The entire trial will be conducted afresh, its outcome depending on a reverification of the crucial Swiss paper-trail. Aside from the parameters of the retrial, SC's detailed judgement was awaited for its anticipated ruling on the telltale tapes. This could determine the fate of the judges and others accused of colluding to subvert the due process of law.

SM Zafar, the state's counsel [reportedly paid Rs50 lakh (only!) plus a daily-allowance of Rs50 thousand (only!)--to no avail, as it turned out], believes the SC was--deeply influenced by the tapes. Considering their overwhelming contents, this seems probable. But the judgement skirts the issue by finding "no need to advert to the audio-tapes.... as there is sufficient (other) material on record which substantiates the allegation of bias."

Even so, the SC did deem it appropriate to cite some sizzlers from the clandestine conversations. Samples: "He is going to issue warrants for both of us," says the then Punjab Chief Justice Rashid Aziz. "I have already written the short-order," assures Justice Qayyum. Earlier, he had placated a grumpy Saifur Rehman thus: "By the grace of God this will be done and then both of us will go to him and seek forgiveness".

By the grace of God? Invoking the Almighty while perpetrating an infamy? And, a judge seeking forgiveness from a prime minister? For what? Not despatching his opponent quickly enough? Need one dig deeper for the causes of our national degradation?

The judgement gives other insights as well into the brazen manner in which power was being exercised by petty minds and small persons--as if there wasn't a tomorrow, forget the Day of Judgement. On the foreign office summary attempting to block the passports as being impermissible, the disdainful response was: "Prime Minister has been pleased to approve (the) grant of diplomatic passports to Mr Justice Malik M Qayyum, Judge, Lahore High Court, and his wife."

Such royal decrees were, of course, the norm. But how amoral weak persons and how strong their sense of impregnability becomes under the illusion of power is reflected in Saifur Rehman's direction to a subordinate recorded on the same miserable summary: "Mr Sami Khilji please have it (passport) delivered to Justice Qayyum: Regards, Saif." Full marks for courtesy, but absolutely no sense of any wrong doing. That is how inverted morality had become.

Anyway, even without the tapes, the SC found enough ordnance to blast both the honourable (?) judges on the Ehtesab bench. The prime target was the star performer, Justice Qayyum. His "close liaison" with Saifur Rehman and Nawaz Sharif ("whose political rivalry with Ms Bhutto appellant is a matter of common knowledge") and the resulting bias and personal interest in the case were found from the "out of the way favour" of the grant of diplomatic passports against the "formidable objection" of the foreign office.

Crucially, the SC noted, his passport plea was allowed on April 30, 1998--three days after the assets of Ms Bhutto and Asif Zardari were frozen. Secondly, Malik Pervez, real brother of Justice Qayyum and a PML(N) MNA, had been elected unopposed in a bye-election on a seat vacated by Nawaz Sharif himself.

The bias and predisposition, found "floating on the surface of the record," was reflected in the unseemly haste and procedural violations to the detriment of the accused. The SC took special note of the fateful final day when, the proceedings having been "drastically cut short" and defence evidence restricted to one witness, "Suddenly the court rises; retires to the chambers, re-appears after a while and the short-order is handed down on April 15, 1999, which appears to have been pre-authored bearing the date as April 14, 1999, which was scored off and corrected."

Justice Qayyum was found to have exerted his influence on his junior colleague, former justice Najamul Hassan Kazmi, "who being an unconfirmed Judge" was "sweating for confirmation," By these scornful words, the SC demolished his personal character and judicial personality; finding him no more than moral wax, which melted under the gaze of his senior colleague and, of course, the lure of self-interest.

The SC also noted how the government had kept Justice Kazmi on tenterhooks until he had delivered. Appointed for one year on May 27, 1997, his impermanence was extended for another on May 26, 1998, and confirmation finally came on May 13, 1999--a month after he co-authored the SGS judgement (ironically, for reasons not known, Justice Kazmi was not invited to take oath under the current PCO).

A sad comment indeed on the executive's exploitation of the judges' vulnerability. But a measure also of the depths to which some will stoop to secure judgeship--an obvious moral paradox, reminiscent of Hazrat Ali's (RA) advice to find such judges who would rather not shoulder the onerous task. Power has always been a test, ultimately, of human character. Justice Qayyum and Rashid Aziz, after all, were not labouring under any impermanence.

Few believe that Justice Qayyum was bending over backwards just for two measly passports, though how important these became in this case is again a reflection on the fragility of human ego. Or, even the political pursuits of his brother. That so many high-profile cases landed on his table may be a tribute to his competence and bravado--so terribly misdirected, as the SC found, and so brazenly on display in spurning the calls for his resignation. The general perception is of a deeper and more symbiotic relationship with power.

It did not escape the SC's notice that, without the indulgence of the then Punjab Chief Justice Rashid Aziz, Justice Qayyum could not have presided over the fateful SGS case (or, for that matter, any high-profile case). An obviously annoyed SC observed that when, on December 14, 1998, it transferred the SGS case to Rawalpindi, another Ehtesab Bench was already working there. But, by misinterpreting its transfer-order "as if Ehtesab Bench was . . . transferred to Rawalpindi . . . rather than the reference itself" Justice Qayyum "somehow or
other managed to have the reference heard by the Bench headed by him even at Rawalpindi."

From this "misinterpretation" flowed notifications by the Chief Justice "from time to time to enable (Justice Qayyum) to visit Rawalpindi to hear (the SGS reference) and to be present on each and every date of hearing . . ." By, thus, "chasing" the SGS case, he demonstrated his "keen interest" to "impose himself on the matter and take it to its end according to his preconceived notions" and "an urge to proceed hastily to reach at the foregone conclusion."

What more is needed to convince their tarnished lordships to call it a day? Or, for President Tarar and the Supreme Judicial Council to drum them out? That, said PPP's former federal minister Syed Khurshid Shah, would already have happened had Justice Qayyum been from a smaller province. Like ZA Bhutto's ordeal, the SGS case will remain a blackspot on the Punjab judiciary. And the irony is that, handled fairly, it was potentially an open-and-shut case which could have become a landmark for accountability.

The SC judgement was entirely expected in ordering the retrial. But it has been hailed more as a bold step towards the much needed, but woefully absent, judicial self-accountability. That some lawyers should speak out against it only manifests the depth of the moral decay in the legal profession. While the departure of the tainted judges should be the natural next step, considering the damage done to judicial credibility, a long and arduous road has to be trudged with transparent consistency before people will stop seeing motives behind the decision of each high-profile case.

The author is a freelance columnist                                            
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