AG Qadir questions judges' conduct in Dr Arsalan case
14 September, 2012
ISLAMABAD: Submitting reply over the Supreme Court's August 30 order in Dr Arsalan case, Attorney General of Pakistan (AG) Irfan Qadir on Thursday contended that Chief Justice of Pakistan Iftikhar Muhammad Chaudhry and two other judges had violated their oath of office as well as code of conduct by hearing the case.
In response to the court's notice to explain his conduct in Dr Arsalan Iftikhar case, the attorney general submitted his aggressive reply through his secretary, Qadeer Siddiqui.
Raising serious questions over the appointment of Dr Shoaib Suddle to probe the alleged business deal of Rs 342 million between the chief justice's son and real estate tycoon Malik Riaz, the attorney general also stated that he was perplexed as to how the name of Suddle had popped up. "Did they not know (having themselves been invited to and having attended Dr Arsalan's recent wedding) that Suddle too was invited to and had attended the functions hosted by the honourable chief justice of Pakistan? Did they bother to inquire from Suddle whether he as well had invited the honourable chief justice to his son's wedding, and whether the honourable chief justice also attended the same? In these circumstances, is it fair and impartial to appoint Suddle as the enquiry commission," he questioned in his five-page reply.
Qadir stated that on the very first date of hearing regarding the Arsalan case on June 6, he had mentioned the Article 4 of the code of conduct, under which it was illegal and improper for the chief justice to be part of the bench hearing the matter pertaining to his own son.
He said he was disappointed that his advice was not instantly heeded and that the chief justice continued to sit on the bench as he thereby disregarded the code of conduct, on the ground, ironically, that he will decide the issue in accordance with the holy Quran and Sunnah.
"Resultantly, the chief justice violated the code of conduct for almost two days and carried out tough scrutiny of operational, financial and corporate structure of Bahria Town and its officers. Surprisingly, during the same time, Dr Arsalan was not questioned at all," Qadir added.
He also stated that he was disappointed that the other two judges of the bench also did not advise the chief justice to withdraw from the bench. "These judges thus equally violated their code of conduct since they did not even once, during the course of two days, offer the slightest hint that the honourable chief justice should recuse himself – especially when Article 4 of the code of conduct was not only in their knowledge but was also brought to their attention by the attorney general. Consequently, all the three judges violated the code of conduct and oath of office under the constitution," he said.
"It then came to light through Malik Riaz Hussain's press conference on June 11, 2012, that it was the very same bench (the chief justice with these two judges) which was seized of cases regarding Malik Riaz Hussain, and regarding which the latter bitterly complained that they deliberately withheld relief to enable Dr Arsalan Iftikhar to 'squeeze' him as much as he could. For the present, it matters not whether the allegation is right or wrong – what is material is that it was levelled against the very bench comprising the chief justice and these two judges, which (with only the chief justice recusing himself ultimately) is still seized of the matter," Qadir said.
The attorney general said that he was quite astonished that rather than recusing themselves and allowing the matter to be placed before another independent bench, the same bench had continued to hear the matter regarding allegations against their own conduct, which was quite unprecedented.
He said that when Malik Riaz had made direct allegations against the two judges, appearance of bias on the part of them could not be ruled out as both of them ought to have recused themselves.
Regarding the formation of one-man commission to inquire into the matter, the attorney general said that the option was not available as the matter could only be referred to an agency constituted under the law, which was authorised to investigate such matters.
"That as per the attorney general's understanding of law, there is no dispute even today that the National Accountability Bureau (NAB) is the appropriate investigating agency under the law, for otherwise the court would have referred the matter to an alternative agency. Thus, even if Dr Arsalan Iftikhar's allegations be correct that NAB for various reasons is unable to discharge the function in an impartial manner in this particular case, the attorney general fails to understand how he can be held accountable in this regard. Could he have marked the investigation to another agency or person not authorised by law", the attorney general further said in his reply.