14 December, 1997

Fascism on the March I



By Ardeshir Cowasjee

Weak, burdened with guilt and vulnerable, with the tendencies he has, the naive Nawaz Sharif has acted. He was emboldened to demolish.

Theoretically, in a Westminster-style democracy that this country has tried to emulate, there are four pillars of State --- the legislative, the executive, the judiciary, and the press. But our country rests imbalanced on five. The fifth pillar, the most powerful, the richest, the most organised, is the Army. Fortunately for us, it is presently headed by a good commander

Nawaz's 'overwhelming' mandate, comprising less than ten percent of the total population of the Republic, but sufficient for him and his 'sovereigns of Parliament' to do good by the 140 million should they so wish, did not satisfy him.

He first tackled the executive, emasculating the President, rushing through at midnight the 13th Amendment, suspending all rules of procedure, aided and abetted by a pliant Assembly Speaker and a pliant Senate Chairman ( both front-runners in the present presidential race). To neutralise the legislature, he repeated the exercise with his 14th Amendment (passed without a single dissent) banning dissension or abstention in Parliament. Never in the recorded history of any democracy have parliamentarians voluntarily given up their right to speak.

At the time when Leghari and his caretaker government were assuring Nawaz his second term, Abbaji was heard to declare, "Leghari Sahib kay ehsan, meh, or mera baiteh, or hamara khandahn, kubbi nahin boolengeh." This was forgotten on February 3 when Nawaz was elected.

Nine months down the line, a weakened Leghari, given the choice between a threatened impeachment (which, because of the numbers game, may never have come off) or resignation, chose the latter. He should have called Nawaz's bluff, and, following the dicates of his conscience, gone on to sign or not sign whatever was presented to him. An independent judiciary would have intervened and passed appropiate orders against a malafide and colourable impeachment.

Leghari having resigned, a new president now has to be elected. When my friend, Nawab Mohammad Akbar Shahbaz Khan, Tumandar Bugti, was asked whether he was an aspirant he replied "No. I do not qualify. I have a spine". Amongst the pliable favourites are Wasim Sajjad, Sartaj Aziz, Ilahi Bakhsh Soomro, and of all people Ghous Ali Shah. Of this sorry lot, one is guilty of having lied under oath in the Supreme Court of Pakistan.

The fourth pillar of the State, the press, is no longer just the printed word. It is also the predominating electronic media. Nawaz and his men do not, or cannot, read so by and large we remain relatively free. PTV, our Prime Ministers' personal television channel, remains abjectly and ignorantly controlled, so much so that it was prevented from broadcasting President Leghari's resignation speech to the nation. Shots were shown on foreign television channels, and the world informed that it was banned from the national channel. This reinforced international opinion as to the establishment of Nawaz's authoritarian tendencies.

The Army, despite Nawaz's effort to divide it, stands as one. Chief of Army Staff General Jehangir Karamat has acted prudently. Nawaz's propoganda about his having Army backing is neither correct nor is it generally believed.

Why do you glorify the Army Chief so, asked Ayaz Amir(not so long ago one of our credible national columnists but now a budding Nawazite)? Have you forgotten your history? Have you forgotten how Hitler divided and destroyed the Wehrmacht? Have you forgotten the Blomberg-Fritsch affair? Have you forgotten how the ageing giant Hindenburg was duped by Hitler? If Nawaz succeeds in his aim, will Karamat be forgiven? I told him I had not forgotten any of it and how not so long ago I had sent to the General a copy of a video film on the Fuhrer which is being followed up by a copy of Shirer's 'The Rise and Fall of the Third Reich'.

As for the judiciary, Nawaz, with his (or rather, our) money, with his carrots and sticks, has successfully managed to destroy this institution so recently built up. Neither history nor the people can ever forgive him for this.

Chief Justice of Pakistan Sajjad Ali Shah (to the Bar and the people he is neither 'under restraint' nor 'under suspension') was appointed by Benazir in 1994. No judge, or member of the Bar, up to November of this year, voiced any protest against his appointment or his administration. As editorialised The Nation's editor Rashed Rahman, son of a former Supreme Court judge, "That he is a man of courage and has a clean record goes without saying. In that sense he can be compared to a hero of a Shakespearian tragedy whose fall is brought about as much by a flaw in his own character as by outside factors."

Fali Nariman, a former Attorney General of India and now President of the Bar Association of India, who keeps himself abreast of happenings in the courts of our country, asked me to fax him the orders passed by the Quetta and Peshawar Benches and by Chief Justice Sajjad Ali Shah relating to the ouster. On December 5, a perplexed Nariman asked, "But is there any legal or constitutional basis for the orders of the Quetta and Peshawar Benches?"

My constitutional advisor and senior counsel, Barrister Makhdoom Ali Khan, was immediately consulted. Careful Makhdoom's first response was to say, "Not to my knowledge." I asked him for a one-word answer, either 'yes' or 'no'. "No," he said. There are certainly no precedents in Pakistan for what has happened, but there are many against. It is a settled principle that no writ will be issued by one judge to another.

On November 28, I was in the Supreme Court whilst the contempt case against Nawaz & Co was being heard by Chief Justice Shah's Bench. Sitting beside me was my friend and lawyer, Khalid Anwer, now Federal Law Minister. Whilst alleged contemner Nawaz's lawyer, S M Zafar, laboured on and on, Khalid shook his head from side to side. Zafar, making his usual noises, shifting his weight from one foot to the other, told the court that its constitution was in question. A calm and composed Sajjad asked, why then are you here before us? Zafar also questioned the legitimacy of Sajjad's appointment as Chief Justice. If you do not recognise me as Chief Justice, do you recognise me as a judge of the Supreme Court, responded Sajjad.

As the harangue continued, I remarked to Khalid that his writ as Law Minister does not extend far, and asked if it would extend far enough for him to protect my seat whilst I nip out to attend to a call of nature. Good humouredly, he replied that though he may not succeed as Law Minister, he could manage to do so as a senior counsel of the Supreme Court. Before I could reach my destination one floor below the courtroom, a surging screaming crowd of Nawaz's fascist hooligans appeared in the corridors. Zahid Hussain, correspondent for The Times (London) and the chief of AP in Pakistan, was with me. We were both huriedly sent back by court officials who were rushing around instructing each other that the doors of the courtroom be closed, that the crowd had arrived to arrest the Chief Justice.

As we re-entered, I heard Sajjad remark, to Zafar, "Thanks to you," whilst adjourning the case and leaving the courtroom just before a section of the crowd, spearheaded by women, rushed in. Turning to Khalid I said that if Nawaz must use women he should at least see to it that they are good looking rather than frightening. A lawyer of Lahore standing close by informed me that they were not actually women, but intermediary beings, and that I would look like them were I to shave off my beard and moustache and put on lipstick and make-up. He even recognised a few of them as being famous 'tanglas' from certain specialised areas of Lahore.

As we pushed our way out of the courtroom, a dejected Khalid muttered to himself, "Most unnecessary, most unnecessary."

Acting Chief Justice Ajmal Mian is so far clean on record, and, as far as is publicly known, free from any impropriety. His first challenge is to deal with all those involved in the attack on the Supreme Court. This will not be easy. It must nevertheless be faced. The mob did not attack a man, or a building. The institution of the judiciary, with the Supreme Court at its apex, was the target of the assault. This was contempt of court of the worst kind, and any lack of firmness or alacrity in dealing with the culprits will only encourage others to use similar methods each time the Court is seized of a politically sensitive matter. The authority of the Court will become subject to the muscle-power of the mob and the machinations of those who hire them.

May I request the Acting Chief Justice that he treat this column of mine as a petition and institute suo moto action for the contempt committed in the face of the court? The master-fixer, my friend the Jadoogar of Jeddah, Sharifuddin Pirzada, who snoozed besides me as we flew back to Karachi, was firm in his opinion that the gravest of contempt had been committed, that its an open and shut case.

__________ ac@xiber.com ___________ Ardeshir Cowasjee, Karachi, Pakistan