21 December, 1997

Fascism on the march - III

By Ardeshir Cowasjee

This true story relating to the election of the first president, to suit the genius of the 1973 constitution warrants repetition.

When President Bhutto decided to step down to the prime ministerial slot he looked around for a 'suitable' replacement. What he sought ideally was a blind, deaf, mindless, crippled candidate. Prior to his sighting of the gentle Fazal Elahi Chaudhry, his eye lit upon the politically acceptable Begum Shahnawaz, daughter of Sir Mohammad Shafi, sister of my late lamented friend, Mian Iqbal Shafi.

My first reaction was to exclaim, good grief, she must be pushing ninety. To check, and to congratulate Iqi in the event that it was true, I rang him. Yes, he said, there is something to it and, yes, she is getting on for ninety. But she qualifies perfectly. She can barely see, she is almost stone deaf, and she is mobile only if helped. We must hope they don't let her down. She is preparing her trousseau for the move to the presidential palace, and it will hit her hard if it doesn't come off. Nusrat and Zulfi have been visiting. Keep your fingers crossed, pal. You and I may be on to a good thing. She will have a special train. We'll organise an extra bogey and tour Pakistan in style. Pack your bags, pal, he instructed me before he signed off.

A few days later Iqi called. Unpack, pal, unpack. Bad news. Jehanara's chances have receded. She has regained her hearing in one ear, her eyesight has improved, and she has thrown out her nurse. No go. She has ceased to qualify.

Looking around this time, Nawaz's eye focused on octogenarian Fida Mohammed Khan as a suitable candidate. He also qualified on other grounds. Hailing from the NWFP, he would be acceptable to most as a symbol of the Federation. But Wali Khan, Nawaz's coalition partner, spoilt that one. Fida did not suit his purposes. He was relatively sharp of hearing and sight, and had almost all his brain cells intact.

Up came the name of Mohammed Ali Khan Hoti, also from the NWFP. He was immediately rejected, for he has a good solid spine and is quite capable of deciding for himself what is what.

Ghous Ali Shah of Sindh's name cropped up, but was hastily discarded as too many people who mattered insisted that he was far too 'controversial' (the local euphemism for 'totally unacceptable').

Then Abbaji stepped in, and within the space of one minute settled everything. Cut the cackle and forget about the 'smaller' provinces. Let's keep it all in the family and in the Punjab. Select my friend and legal advisor, Rafiq Tarar, whose wit and wisdom I share, and with whom I often sup late into the night, exchanging sick Sikh jokes from our vast reservoirs. He is, and will prove to be, perfect. What is good for the Sharifs, is good for the party, and is good for the nation. Soon, with God's blessings, we will have a Sharif nominee at the head of the Supreme Court and at the head of our powerful Army.

'Der Fuhrer' had spoken. Without further ado, without consulting his ruling party members, or the leaders of the coalition parties, Nawaz nominated Tarar.

Thought-broadcaster and 'media developer' Mushahid Hussain was ordered to tailor Tarar to fit the slot, and vice versa. Mushahid trumpeted : Tarar is a moderate Muslim, a clean, devout, upright man and, contrary to what is said, is not a misogynist. He has been cleared by the agencies (who codified him in the records sent to those prosecuting Benazir's dissolution as DW1 - Dari Wallah 1). He is a son of the soil, officially born in Pirkhot, District Gujranwalla, on November 2 1929, educated in Gujranwalla and Lahore. Gujranwalla is his oyster. It was there he grew his formal beard and in 1951 launched himself as a Pleader. He moved up to advocate of the High Court, to Additional District and Sessions Judge, to District and Sessions Judge, and was elevated to the Bench of the Lahore High Court in 1974, in the good old days of Zulfikar's PPP. In 1989, in the equally good old days of Zia, he became Chief Justice of that Court, moving up to the Supreme Court in 1991, from where he retired in 1994.

His brilliance on the Bench of the Supreme Court has been immortalized. During the three years he sat there, one sole judgment authored by the Honourable Justice Tarar was recorded in a PLD -- his concurring judgment in the case of the 1993 dissolution of the National Assembly when the presidential dissolution order was struck down and the government of Nawaz Sharif restored.

Amongst his friends who share his thoughts and beliefs and over whom he wields considerable influence are Justice Khalilur Rahman (codified as DW2), a signatory to the November 1997 order of the Quetta Bench of the Supreme Court which sparked off the sorry disintegration process, Afzal Lone a benefactor of the Ittefaq empire rewarded a Senate seat, who is inevitably to be found lurking in the Prime Minister's Secretariat, and Major General Javed Nasir (DW3), Nawaz's former chief of the ISI and of the 'Afghan Misadventure'.

Tarar's nomination was filed on December 16, together with that of his covering candidates Captain Haleem Siddiqui and Khwaja Qutubuddin. (It is somewhat of a disgrace that a Master Mariner should have allowed his name to be included amongst the spineless.) Tarar's nomination was rejected on December 18 by Justice of the Supreme Court Mukhtar Ahmad Junejo, who also holds the post of Acting Chief Election Commissioner. Junejo, in this case, proved himself to be as strong as Seshan.

Can we remove Junejo, was Nawaz's first Gawalmandi reaction. Risky, he was told. Then file a petition against Junejo's order in the Lahore High Court, before Justice Malik Mohammed Qayyum, and have the order suspended. Suitable counsel were hurriedly contacted, and it goes to the credit of the Bar that not one of the top constitutional lawyers was willing to accept Tarar's brief. Ejaz Batalvi, expert criminal lawyer, was roped in. Justice Qayyum admitted the petition on December 19 and without hesitation suspended Junejo's order, allowing Tarar to "participate in the Election provisionally subject to further orders". A larger Bench will hear the petition on the 23rd.

My renowned constitutional expert (who for his own good explicitly asked me not to name him) maintains that Tarar will sail through the Lahore High Court. But, in the Supreme Court, it may, just may, be a different kettle of fish. Passing muster there will not be that simple. The irony is that the order of Acting CEC Mukhtar Junejo (Government) will be defended by Attorney General Chaudhry Faruq, who, though technically the first law officer of the land representing the people, still acts as if he were the personal hired lawyer of Ittefaq and Nawaz Sharif.

Many months ago, in the reign of Benazir and Asif, Chaudhry Faruq, defending an Ittefaq case, in open court swore at presiding Judge Munir A Shaikh, using the crudest of language. For his open contempt he should rightly have been jailed, but political manoeuvering legally saved him. This does not alter the fact that he abused a judge in open court.

As for the President of the Republic, with the powers now left to him in the Constitution, all he can depend upon is his moral authority and his presentability to the world. Tarar, unfortunately, possesses neither. To quote from the 'Comment' of man-of-integrity Kunwar Idris, published in this newspaper on December 20 :

"Also casting a dark shadow on him is the referendum of December 1984 when, as a member of Zia's Election Commission, he solemnly assured the people that 55 percent and not just five percent of the electorate had turned out to confer legitimacy on Zia's dictatorial rule. Mr Tarar also has to dispel the widely insinuated impression that he was involved in the 'Quetta Shuttle' which divided the Supreme Court and wrote the saddest chapter in Pakistan's constitutional history."

The task before the present de facto chief custodian of the Supreme Court, the honourable J-1, Justice Ajmal Mian, is onerous indeed. Before he can reform and unite his 'farishtas ' (as the judges of the SC are affectionately known) he has to clean up the paradise in which they preside. The dignity and honour of the Court remain desecrated and dented by the mob attack upon it organised by the ruling party. The court must be cleansed and reconsecrated, the sponsers and their stormers punished for committing a criminal act in the face of the court.

Another task awaiting Justice Mian is the reigning in of the parallel judiciary incorporated in the Anti-Terrorism Act of 1997 (a Lone-Tarar creation). Also (important and urgent) he must demolish the formation of a squad of honorary magistrates planned to be recruited in the Punjab from the ranks of Party Bosses of the Muslim League. Following in his master's footsteps, Punjab Law Minister Raja Basharat is said to have thought up this brilliant fascistic move.

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