Time For Contempt

In today's Pakistan, the word "Contempt" is what the Government of
Pakistan thinks of the people of Pakistan. The situation has now reached
a point where no branch of Government can plead its innocence as a mere
"bystander". Whether one defines contempt as "derision", "disdain",
"ridicule", "scorn" or "aversion" or whether it is considered
"defiance", "revulsion" or "abhorrence" this is a word that has the
strength to reflect not only how the Government of Pakistan sees its
citizenry but also how the masses of Pakistan view the Government.


Very few Pakistanis really did believe that by electing a new
government things would change where their interests would be foremost
in the minds of the elected leaders. These newly elected leaders were
after all nothing more than retreaded tires mounted on the Tonga of
Pakistani politics who lacked the courage and wisdom to take Pakistan
into the twentieth Century (we still have  two years to make it to the
twentieth, certainly once we get to the twentieth the twenty first
cannot be far behind).  Given the present Twiddle Dee and Twiddle Dumb
in Pakistan between the executive, the legislature and the Judiciary it
now appears, however, that these retreads have now taken Pakistan to a
place where no horse has fertilized before.


The President, the Prime Minister, the Legislature and the Judiciary
all comprise the Leaders of Pakistan and one must ask what is the Vision
of these leaders of Pakistan? We do not fault them for failing to put
Pakistan on a road to making it a modern, model Islamic State, for they
are but mortals lacking godlike wisdom and courage,  but we certainly
must grab them by the collar and ask why they cannot keep their greed
and ambition in check long enough so that Pakistan looses its status as
the most corrupt country in the world and Karachi is no longer the
world's murder Capital.  While these leaders of Pakistan sit in their
mighty glass towers and hallowed institutions, they should realize that
by treating each other with contempt they invite contempt for
themselves.  In a hearing before the Sind High Court (Petition of Haider
Iqbal Wahniwal against the Government of Pakistan; President Leghari;
Prime Minister Sharif and Chief Justice Sajjad Ali Shah) regarding the
antics now permeating Pakistan, even this august body was constrained to
observe: "..it is regrettable that the three tallest pillars of the
state, namely, the incumbents of the offices of the President, Prime
Minister and the Chief Justice of Pakistan have been arrayed as
respondents in this petition." "From persons holding such high offices
the people of Pakistan have great expectations. We have no doubt that
they will come up to such expectations". The Sind High Court was being
generous. From people holding these high posts the people of Pakistan
cannot be faulted if they expect to receive nothing but contempt..


What have these leaders and stalwarts of Pakistan accomplished in the
nine months since a new government was formed?  While the melee between
the executive was taking place in Islamabad, Quetta and Peshawar, the
Sindh Governor Moin uddin Haider opened an art gallery in Karachi
"Gallery of Crowns" and stressed the need for the preservation of
educational, historic and cultural heritage of the country. The governor
noted that people living in various villages of Sindh have with them
educational and cultural materials and libraries which they inherited
from their ancestors.  Perhaps the Governor should have also noted that
people living in urban areas are the beneficiary of a terror culture and
that this is the only culture that the Pakistani government is capable
of preserving.


Now turning to the those trusted with the governance of Pakistan.
President Farooq Ahmed Khan Leghari has concentrated on doing all that
he considered was necessary to gain him a second term. As Cowasjee puts
it: "He cannot be blamed. His job is one long holiday, and he is  now
left with no responsibility. He has lots of attendant pomp and
vainglory...To keep him in the style to which he has become accustomed,
it costs the nation in the region of Rs. 3.5 million per day, and a
whole lot of unaccountable invisible perks and privileges...There is
also the issue of the lands he sold and bought." In President Leghari's
defense Rs. 3.5 million per day may be a small price to pay, after all
given the rapid devaluation of the Rupee this figure may soon equal One
US Dollar.  Of course we can all hope that some day we will find a
leader of the Islamic Republic of Pakistan who takes his que from
Prophet Muhammad (s).  Prophet Muhammad (s) choose to live the live of
poverty and  was most concerned at his death bed that there were
seven(7) dirhams remaining in his house and insisted that they be given
to charity lest his Maker seek an explanation as to why he left  any
property behind.


As to Prime Minister Nawaz Sharif there are issues of greater import.
For a man who was elected by such a large mandate one cannot understand
why he is unable to deal with a lame duck President and a lame duck
Supreme Court Justice. One would have hoped that he had learned his
lesson in dealing with lame ducks given his encounter with the mother of
all lame ducks, former President, Ghulam Ishaque Khan. It appears,
however,  that Nawaz still wants to shoot them out of the sky and is not
satisfied in merely letting them hobble along until such time that they
find their perch.


The actions he has taken, within and outside the legislature, impact
the very constitutional infrastructure of Pakistan. In his short span he
has suspended rules of debate and rushed through constitutional
amendments. The 13th Amendment, emasculated the president and increased
his hold on the Service chiefs. The 14th Amendment, supposedly to
prevent defection, was rushed through to prevent dissent and abstention
from voting. Another gem, the Anti-Terrorism Act (ATA) should properly
be entitled the Zalim Act. While promulgated in the name of
anti-terrorism, it creates a parallel judiciary, disallows a man his
right to appeal to the High Courts and the Supreme Court and prohibits
the special appellate tribunals from granting bail. It makes a mockery
of the Evidence Act, and gives unfettered powers to a lowly corrupt
policeman to shoot and kill on  mere suspicion of an anticipated act of
terrorism. Given the mockery that he has made of the Law it is no wonder
that he finds himself being charged with contempt of justice.


Nawaz Sharif whom history placed at the helm of affairs of the State at
a time where he could have made some far reaching changes and left a
legacy that he could be proud of. His pledge to hold a Census, that has
not taken place for decades,  would be an act with far reaching
consequence.  While all citizens of Pakistan have the right to vote, the
failure to hold a census results in urban areas electing few members of
the legislature and leads to an Assembly that is disproportionately
skewed in favor of the rural population. A Census is not just a game of
counting heads, it is the only means of ascertaining that elected people
fairly represent the voice of the people of Pakistan. As early as 1962
the United States Supreme court in Baker v. Carr recognized that setting
up election districts  which did not represent the same number of voters
was arbitrary, capricious and effected a gross  disproportion of
representation to voting population.  A Pakistani citizen residing in
Karachi or Lahore should expect that his or her vote carry the same
weight as that of a village farm worker. Given the present scheme of
things, it does not and perhaps  this explains why the underepresented
people of Karachi believe more in the bullet than the ballot.


With regards to the Supreme Court of Pakistan, that august and
honorable body that must be the final arbiter of all disputes  is now
faced with the task of deciding whether one of its own is entitled to
the title of "Chief Justice". Chief Justice Sajjad Ali Shah who so
commendably stood tall against all challenges to the judiciary by the
Benazir government now finds his own position precarious as he defends
the courts contempt powers.  A Supreme Court Bench in Peshawar,
supported by the Supreme Court Bench in Quetta, has called a session of
all Supreme Court Judges, except of course the C.J. and Justice Ajmal
Mian, who declined because of perceived conflict of interest, to decide
on whether the Chief Justice can retain his post or not.


We are now witness to the most interesting part of a chess game, the
ending play. A chess game that grew intense when the C.J. decided to
issue an Order to Show Cause for  Contempt because of comments made by
Nawaz in the legislature.  Courts have the inherent, but discretionary,
power to hold those who violate its orders in contempt. This is a power
that must be used sparingly and rarely as the threat of contempt must
always carry more weight than its unfettered exercise. To the extent
Pakistani jurisprudence is inherited from the British "M'lord" era, the
judiciary in Pakistan appears to be overzealous in its exercise of this
power. An exercise which hampers the Press, the Bar, the legislature and
it appears even the Prime Minister from commenting and criticizing its
actions.  Thus we find that every institution in the Country treats the
judiciary with kids gloves. There is much that needs to be improved in
the dispensation of justice in Pakistan and progress on this front
cannot be made when every comment pertaining to the judiciary, or even
to  those offices that may fall under its auspices,  will be examined
under a microscope and dissected until a contempt growth is found.


To the extent Pakistani jurisprudence is based on the common law, the
American experience may prove helpful. Under the American system, where
the act complained of is an expression of opinion  concerning judicial
action and the expression takes place outside  of the courtroom, there
can be no punishment unless the expression  actually obstructed judicial
action, or was intended improperly to  influence judicial action, or
where, in the absence of such intent, there was a clear and present
danger that judicial action would be  improperly influenced. Limiting
the exercise of the contempt powers will provide the judiciary with
input from those that it serves so that it may better exercise its
fiduciary responsibility to the people of Pakistan.  The words of  the
great stalwarts of American jurisprudence, Justice Holmes, Brandeis and
Brewer spoken in 1898 could very well have been addressed to the
Pakistan Supreme Court:


"It is a mistake to suppose that the Supreme Court is either honored
or helped by being spoken  of as beyond criticism. On the contrary, the
life and character of  its justices should be the objects of constant
watchfulness by all, and its judgments subject to the freest criticism.
The time is past  in the history of the world when any living man or
body of men can  be set on a pedestal and decorated with a halo. True,
many criticisms  may be, like their authors, devoid of good taste, but
better all  sorts of criticism than no criticism at all. The moving
waters are  full of life and health; only in the still waters is
stagnation and  death." 
For a democracy to take hold Pakistani courts must exercise  this
contempt power rarely so that the other branches of government are not
restrained in performing their responsibilities. Borrowing again from
the Sind High Court " ... a democratic state such as Pakistan [should]
run on the basis of the wholesome concept of checks and  balances, but
unfortunately we only find checks in play and little or no balances."
This may not come as a surprise to the people of Pakistan who are used
to government that can write checks without ensuring that there is a
balance to cover them in the bank accounts.


If the leaders of Pakistan take a time out from their wrangling, they
will hear the people calling out to them in a loud and clear voice that
it is time for them to work single mindedly and with devotion and
dedication for the betterment of Pakistan. If they choose to continue,
however, to embellish their own "halo" then it is time for the people of
Pakistan to say unequivocally: We hold all of you in Contempt.



Jamshed Al Rasheed is an attorney practicing law in the United States.