DAWN - Cowasjee Corner; 01 March, 1998
Hear no evil
By Ardeshir Cowasjee
OUR two alternating juvenile prime ministers and opposition leaders are made of the same stuff. They care not for our Constitution; they make no effort to conform to it; they amend it to suit their own purposes. They have no regard for our laws, which they chop and change at will. When a chief justice asserts the independence of the judiciary, he is deemed to be 'non- cooperative' and is removed by machinations defying law.
Had the seven honourable judges of the Supreme Court now hearing the cases against this prime minister and his minions been able to hear the testimony of former president Farooq Leghari (who suffered both juveniles), he would have sworn on oath that neither is capable of tolerating, or surviving, an independent judiciary.
He would have reaffirmed his public statements of December 2, 1997 when he announced his resignation (and might even have revealed other issues such as Tarar's flight to Quetta on November 26, 1997). He would have substantiated his affirmations with details of past shameful events, and the Supreme Court of Pakistan might just have found the present and former heads of government guilty as charged.
Shortly after the March 20, 1996, judgment was announced by the then Chief Justice of Pakistan, Sajjad Ali Shah, Prime Minister Benazir Bhutto went to President Leghari and asked him to denotify the Chief Justice. Why? Because his judgment, repugnant to her selfish interests, would stand in her way. Impossible, he told her, and advised her not to take on the judiciary in a battle she was bound to lose.
Eighteen months later, on October 16, 1997, shortly after the then Chief Justice had nominated five High Court judges for elevation to the Supreme Court, Prime Minister Nawaz Sharif went to Leghari, taking with him as support and as his voice Leghari's erstwhile friend, Punjab Governor Barrister Shahid Hamid. They asked him to denotify the same Chief Justice, giving as an excuse their fear that with the five judges elevated, he may shoot down their Anti-Terrorism Act. Nawaz had the denotification document ready for the President's signature in his pocket. Once again, Leghari had to refuse. Nawaz Sharif went a step further and asked him to send to the Supreme Judicial Council a reference against Sajjad Ali Shah on the grounds that his appointment was unconstitutional and that he was guilty of misconduct. There was no way, under the Constitution, that Leghari could agree to this. Nawaz Sharif then put on a brave face and announced that all was not lost as they had "worked on the Judges." When Leghari pressed them to give the true reason, they admitted that it was Nawaz Sharif's fear that Sajjad Ali Shah, with the support of those elevated, might well disqualify him in the cases filed against him. And, besides, it suited Nawaz to have two of the five remain where they were.
At around 0130 hours on November 27, following the unprecedented unconstitutional suspension of Sajjad Ali Shah (Chief Justice of Pakistan for almost four years) by the Quetta Bench of the Supreme Court in the afternoon of the 26th, Nawaz Sharif arrived at the Aiwan to meet Leghari, bringing with him Speaker Ilahi Bakhsh Soomro, Senate Chairman Wasim Sajjad, Law Minister Khalid Anwer, COAS General Jehangir Karamat and DG-ISI Lt. General Rana. For four hours they tried to pressure him into swearing-in as Chief Justice the senior most judge of the Supreme Court, Ajmal Mian. The Law Minister trotted out at length various precedents to support the action of the Quetta Bench, in response to which Leghari informed him that during the past three months it was his advice that had brought Nawaz to his present predicament.
Leghari informed them that he would not sign Sajjad Ali Shah's denotification, that he would rather resign and hand over to Wasim Sajjad who, as Acting President, would have no moral compunctions to swiftly signing on the dotted line. They begged him not to resign, quite ignoring the fact that for the past many days Nawaz Sharif, Illahi Bakhsh and Wasim had been frantically busy trying to move an impeachment motion against Leghari.
Five days later Leghari did resign rather than uphold Sajjad Ali Shah's unconstitutional removal. In his December 2 resignation speech (recorded by his men) to an audience which included some 200 international and national media people, he spoke at length on the crisis engineered by Nawaz Sharif, intent upon his confrontation with the Chief Justice, loathe to make any attempt to resolve it. He spoke of the cost to the nation in economic terms of the two-month paralysis of the government, a cost of some Rs.1 billion per day, and of the cost in other intangible terms - the negation of the rule of law, the subjugation of the judiciary, the damage done to the nation's institutions and morale.
He spoke of the engineered disruption of the Supreme Court, of government pressure exerted upon the judges of the Court in order to deliberately and with malafide intentions fuel the confrontation between the executive and the judiciary. He spoke of how the prime minister's parliamentarians in open court had insulted the chief justice, of how the ruling party had sent in "goons and militants and parliamentarians to assault the Supreme Court, to jump over fences, to break through doors, to go through corridors waving flags, chanting, dancing and hurling abuses at the Chief Justice of Pakistan and the Supreme Court of Pakistan."
He spoke of how he had done his best to dissuade Nawaz Sharif from his tussle, to instead concentrate on the major issues confronting the nation, such as poverty, illiteracy, the backwardness of its women, its health, the need for social reforms, the need for modern technology, the need to improve science and agriculture through research. He spoke of how he had begged Nawaz Sharif to back down, to uphold rather than destroy the supremacy of the Constitution and the rule of law, to not damage irreparably the institutions of the state. He spoke of how Nawaz Sharif had thrice offered him a second term in return for his 'cooperation' and how thrice he had refused.
On February 24, 1998, an application under Order V Rule 1 of the Supreme Court Rules 1980, was filed by Advocate Muhammad Ikram Choudhary, petitioner in the contempt case against Nawaz Sharif and others now being heard in the Supreme Court, and his Advocate on Record, M A Zaidi. The application pleaded:
"That Mr. Ardeshir Cowasjee has written an article in Dawn of Karachi, on Sunday the 22nd of February 1998, titled 'The second Tumandar' relating to alleged 'subjugation and politicizing of the judiciary,' as stated by Mr. Farooq Leghari, the ex-president of Pakistan, and so stated in the above article.
"That Mr. Ardeshir Cowasjee ... has already sent the speech on video cassette to the Resgistrar S.C. Islamabad. "That Mr. Leghari, as per Ardeshir Cowasjee, is ready to make a statement on oath in the learned court for the purposes of analysis of the relevant facts and events involved in this case and to do so in the interests of justice.
"That the petitioner is placing on record the video cassette containing the speech of Mr. Leghari and other things stated above and requests for an appropriate order".
The application came up the next day before seven judges. They ordered:
"In our view, Mr. Farooq Ahmad Khan Leghari's the then proposed speech which is contained in the video referred to in the application cannot be taken by this Court as a piece of evidence on the controversy in issue. The application is dismissed."
The video cassette of the speech submitted to the Court is not the recording of " Mr. Farooq Ahmad Khan Leghari's the then proposed speech". It is the recording of the speech actually made by President Leghari at the Aiwan-e-Sadar on December 2, 1997.
Excerpts from this speech were broadcast on international television channels on December 2 and December 3, but no part of it was allowed to be broadcast by the government-controlled PTV. Excerpts were also reported in the national and international press of December 3.