ISLAMABAD, 22 May 2004 — In the Supreme Court judgment of April 7 in the Shahbaz Sharif versus the State case the learned judges recalled a citizen’s right to citizenship. Para 28 of the detailed judgment maintained that “it is not denied by learned attorney general for Pakistan and advocate general of Punjab nor so could be denied that article 15 of the constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside or settle into any part there of. It is a settled proposition of law that the right to enter into country cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a citizen of Pakistan and has the constitutional rights to remain in the country”
According to article 190 of the constitution of Pakistan, “all executive and judicial authorities throughout Pakistan shall act in add of the Supreme Court.”
The state’s refusal to abide by the Supreme Court judgment raises two pertinent questions regarding the role of judiciary and the enforcement of rule of law in Pakistan. These issues are critical. Let it not been seen as political issue relating to a politician who appears to have neither the inclination, health nor the political clout to upset any “apple cart.” The triggering issue maybe Shahbaz yet the questions are far more fundamental. They are about how the state of Pakistan must function. The issues of a credible state have been at the heart of what Gen. Pervez Musharraf has repeatedly maintained are his goals for Pakistan.
If the executive had reasons not to abide by the judgment of the Supreme Court it was incumbent upon it to bring the same to the notice of the court. The second question relates to the very deal itself. It was a deal struck by the government then in good faith, given the nature of Pakistan-Saudi relations but it was premised on the very violation of a citizen’s right to the citizenship of his country of origin.
The government may have, or indeed has, acquired in the power game a political plus by deporting an ill and anguished Shahbaz Sharif on May 12. Yet in binding Shahbaz Sharif to sign the deal, the state committed a wrong against its citizen whose rights of citizenship the constitution makes it mandatory to uphold. Indeed an agreement even though forced upon the government of Pakistan was struck to ironically violate the very social contract that a state has with its citizen.
These special circumstances could well be justified under the law of necessity. For one it is unclear whether the state and the executive responded to the learned bench of the Supreme Court by explaining the extraordinary circumstances in which the three-way deal was struck.
On a border note whatever the political realities and the reason of the state, it is imperative that a credibly run-state must do away with lack of transparency and patent illegality.
Gen. Musharraf above all, as one who has committed to reform the state, cannot overlook these serious wrongdoings. The political reality of today’s Pakistan unfortunately poses minimal threat to President Musharraf. It requires both an understanding of the current power dynamics and a boldness of action, not unknown to Gen. Musharraf, to adhere to the April 7 ruling of the Supreme Court. Credible state systems function when the globally powerful and blundering president of the United States is summoned by the 9/11 Commission for cross examination.
The Supreme Court ruling can be seen as an opportune moment providing the state and the executive an opportunity to undo the illegality that was forced upon it by a set of special circumstances in December 2000. Ultimately in politics every action has to be examined from the prism of accountability. The December 2000 political agreement when held up against constitutional standards passes as the worst form of illegality. The well-known doctrine of illegality, which maintains that any agreement whose intent and objective is violation of law is an unenforceable agreement. While the bulk of the Sharif clan left the country willingly, thereby giving up their right of citizenship for a period of ten years, the doctrine of illegality can perhaps be overlooked. Not in the case of the Shahbaz family.
In their case the legal recourse taken by them to seek their return calls for reconsideration by the state and the executive. Equally an independent Supreme Court can call in question Shahbaz Sharif’s deportation.
Much depends on one man alone to set the direction of Pakistan’s state and executive power in consonance with the requirement of just and fair rule. A man genuinely working to end the curses of sectarianism, poverty and for economic revival and even human rights has the opportunity to take the right step on the Shahbaz case. This would have a far-reaching impact on Pakistan’s power culture.
Reconsideration of Zardari and Javed Hashmi’s cases too must follow. Those who claim that Shahbaz’s return can be cause for political turbulence or upheaval need to familiarize themselves more with the current political realities of Pakistan.
— Nasim Zehra is an Islamabad-based security analyst and fellow of the Harvard University Asia Center.
