The Supreme Court on Tuesday took up three petitions seeking a thorough probe into the video leak controversy involving former accountability court judge Muhammad Arshad Malik.
A three-member bench – headed by Chief Justice of Pakistan (CJP) Justice Asif Saeed Khosa and consisting of Justice Sheikh Azmat Saeed and Justice Umar Ata Bandial – after hearing arguments from the lawyers on all three petitions, asked the attorney general of Pakistan (AGP) to submit recommendations.
“When the Supreme Court does everything, there are objections. When we take a step back, we are asked to take notice,” Justice Khosa remarked while hearing one of the petitions.
“We have to decide whether to step in or not,” the top judge said, adding, “We also need to look into the judge’s [Arshad Malik] misconduct. We need to see where we need to interfere.”
“We will soon decide a few things,” concluded the CJP, while adjourning the hearing until July 23.
Judge Malik, who convicted ousted premier Nawaz Sharif in the Al-Azizia case last year, has been accused by Pakistan Muslim League-Nawaz (PML-N) Vice President Maryam Nawaz and other party leaders of delivering the verdict “under pressure”. Maryam has also released videos purportedly proving her claims. The judge, however, denied being under any pressure, making counter allegations against Nawaz Sharif and the PML-N for “bribing, threatening” him.
Amid deepening political and judicial crises, the Islamabad High Court (IHC) after consultation with the apex court removed the accountability court judge last week, following which the Law Ministry temporarily barred Arshad Malik from working.
The bench first heard the petition of a lawyer, Ishtiaq Ahmed Mirza, filed through his counsel Chaudhry Munir Sadiq.
As the hearing commenced, the petitioner’s lawyer told the bench that the video leak scandal had raised questions about the judiciary.
He said that in her press conference on July 6, Maryam had alleged that the court was working under pressure.
“This is a sensitive matter regarding the independence and prestige of the judiciary,” said Sadiq, adding, “The court should investigate the matter and determine who is responsible.”
He said all political parties, including the Pakistan People’s Party (PPP) and the Jamaat-e-Islami (JI), and lawyers in Pakistan had demanded an investigation into the video leak scandal, adding that Prime Minister Imran Khan had also said that the judiciary should take notice of the matter.
Noting that there had been calls for the top judge to take suo motu notice of the controversy, Justice Khosa asked, “If we do something on the demands of people, then are we independent?”
The lawyer asked the court to form a commission to look into the matter, “even if it was just a one-person commission”.
When the CJP inquired who should head the commission, the lawyer replied “a judge”.
“Such a culture has been created in which if one does bad, everyone is thought to be the same,” remarked the top judge. “It is said ‘all judges are like this, all politicians are like this’.” He then asked what the commission should look into.
“The commission should look at the truth; if the allegations are proven, contempt of court proceedings should be initiated,” the lawyer responded.
Muhammad Ikram Chaudhry, the legal counsel for a second petitioner Advocate Sohail Akhtar, also presented his arguments before the apex court, saying that the commission should search for truth and if contempt of court had taken place, action should be taken against those responsible.
“Since the beginning of the human race, the search for truth has been going on,” remarked Justice Khosa, adding, “If we are to search for the truth, what will the judges hearing the central appeal do?”
Justice Khosa noted that if the apex court gives any order, the high court would become restricted by it. “Then how would the high court take any action?”
The counsel said that the decision would not be by the apex court, rather it would be based on the findings of a commission. “I am steering you in this direction,” the top judge responded, adding, “No court can take notice on the findings of a commission.”
The lawyer said that removing trust in any institution was itself a matter of basic rights, adding that judge Malik’s statement should be looked at “extremely carefully”.
“There is no doubt that the judge’s statements are extremely extraordinary,” responded Justice Khosa.
The lawyer said that if statements regarding the judiciary continued, there would be pressure on the high court to make a decision. “A lawyer hit a judge with a chair – this is also extraordinary. A judge hit a lawyer with a paper weight, was this not extraordinary?” he asked.
Justice Bandial said that the first point was regarding the institution, adding that the judiciary would look into the matter of the judge. “Every day information regarding the matter is coming out, the dust should now settle,” he said. “We want such suggestions through which a decision can be taken without emotions.” Advocate Chaudhry asked for contempt of court proceedings to be initiated.
“Who will look into the allegations against judge [Arshad Malik]?” CJP Khosa inquired, adding, “Will the judge, against whom the allegations have been placed, look into them?”
Chaudhry said that the judiciary was being mocked because of statements and counter-statements being made on the matter. “This is why we are hearing the case,” Justice Khosa responded.
Following a brief break in the proceedings, a third petitioner, Advocate Tariq Asad, personally pleaded his case. He said that a forensic audit into the video should be conducted.
“Sometimes the judge is going to Jati Umra and sometimes he is meeting [people] during Umrah,” said Advocate Asad, questioning where the government and agencies were when the “meetings” were taking place.
“This is a case pertaining to the autonomy of the judiciary. Some ‘others’ are interfering with this institution,” he said.
“You are speaking about interference in the institution, yet at the same time you are saying that the institutions should interfere,” Justice Khosa replied.
“The conduct of judge Arshad Malik makes it clear that he has been involved in corrupt practices,” Advocate Asad claimed. “The prejudice of a judge fixed in one foreign decision will again go on trial.”
