Opinion

Pakistan: On the Road to Deeper Constitutional Crises
By Saleem S. Rizvi
New York, NY

The unfolding of several successive dramatic events, in a highly charged political environment in Pakistan, is so rapid and unpredictable that it has become a daunting challenge to keep up with them, let alone interpret them in any coherent manner. The cluster of news bites (good, bad, and ugly) about the suspension or failure of “negotiations” with Benazir Bhutto, and now the announcement regarding her return to Pakistan next month; the controversy surrounding the meanings of old “agreements” with the Sharifs; the fresh display of judicial assertiveness mixed with judicial activism; the use of more “advanced techniques” for political arm twisting; the never-ending stream of creeping foreign influences; the new wave of constitutional battles and legal maneuvering; deepening security crises and concerns, and then the biggest and ugliest of all, the expulsion of Nawaz Sharif to Saudi Arabia, is enough to turn any head dizzy.
Pakistan, at the moment, is facing extremely dangerous constitutional and political crises of an unprecedented magnitude. While the leadership in the neighboring countries is busy in helping their people on the road to prosperity and development (by 2025, China and India will have the world’s second and fourth largest economies), Pakistani government is negligently absent from foreign and domestic affairs of public importance. The whole government machinery has completely bogged down in its internal struggle for many months, just to save the men currently in power.
There seems to be little disagreement that Musharraf’s government has violated the Supreme Court’s recent finding about Nawaz Sharif legal right to return to Pakistan. In addition, one can successfully argue that this illegal act has also violated certain deeply entrenched international legal principles and laws. To begin with, it is a violation of the Universal Declaration of Human Rights.
Article 13 of the Declaration clearly states:
1. Everyone has the right to freedom of movement and residence within the borders of each state.
2. Everyone has the right to leave any country, including his own, and to return to his country.
Furthermore, Article 11 states:
1. Everyone charges with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
There are many more international covenants applicable to this situation. On this particular issue, further probing is needed by Pakistani lawyers directly involved in the legal battle on this subject. In the backdrop of an intense standoff at Islamabad airports, from where Nawaz Sharif was denied entry into his own country, expelled from Pakistan and taken to Saudi Arabia under the control of Saudi officials, the governmental actions raise a host of serious legal and political questions. The instant legal questions that come to mind are: Under what legal and constitutional authority did the Musharraf government not allow Nawaz Sharif to enter into his own country, being a citizen of Pakistan? Under what laws did the Pakistani authority expel Nawaz Sharif from Pakistan? The Pakistani authorities claimed that Nawaz Sharif was deported to Saudi Arabia. If this is their official position, then the question arises as to what the definition of deportation is, and what legal standards are used to determine his deportability under Pakistani Law?
Nothing feels more frustrating than how the Saudi authorities have played their hand in Pakistani internal affairs. In legal terms, the way Nawaz Sharif was handed over to the Saudi authorities, against his will, is certainly a violation of international law. The Saudi government must realize that Pakistan is not a tribal society, where “agreements” are enforced through coercion. Even in tribal societies, agreements made with a handshake enjoy no validity if made in secrecy to avoid any public scrutiny. Islam particularly prohibits secret agreements pertaining to public affairs. Under what legal authority did the Saudi authorities take control over Nawaz Sharif and flew him to Saudi Arabia?
Not just the makings of secret political deals are increasingly becoming common and preferred in Pakistan’s political culture, the legal system too has continuously been used to make and forcibly implement secret deals devoid of any legal principles and procedures. The latest controversy about whether or not the Sharifs signed certain documents is another disturbing illustration of how state affairs are conducted in Pakistan. The practice of making deals without any transparency and accountability, is nothing but shameful, especially when such secret deals, no matter how blatantly illegal, are carried out with impunity. The real question is not whether the Sharifs signed such documents. It is irrelevant because any document signed secretly on public issues, enjoyed no legal validity. Secondly, these documents are legally defective to be binding. Even a first year law student can point out at least a dozen legal defects in these documents. For instance, a legally binding agreement must fully identify the agreeing parties. Who are the parties to this agreement? What are their identities?
In the so-called agreement shown to the Press, only the names and signatures of Nawaz Sharif and his brother appear. What are the names, and where do the signatures of other agreeing party to this agreement and its " guarantors" appear in these so-called agreements? Thirdly, if the cases against Nawaz Sharif had any merits, who took the law in his own hands by sending him off the country, even when he was already convicted and the conviction was on appeal. What should be the punishment for abusing the pardon power for selfish, personal gains? Lastly, hypothetically speaking, even if Nawaz Sharif has violated this so-called agreement, it is merely a civil breach, and not a criminal act under any criminal law. Then why is he being treated like a criminal?
Now, in view of the current political turmoil in Pakistan, it is equally disturbing that in the name of notions such as “ground realities” and for political expediency, the government machinery, while fully deployed in pursuing secret deals, still trying to convince the masses that all will be in order and they are taking decisions “in the best interest of the country and people of Pakistan.” Doesn't this line of unilateral declarations sound familiar, often uttered before every national disaster in Pakistan? Aren’t the efforts to make secret deals to produce a controlled outcome, whether already made or in the making, in secrecy and behind the public’s back is inherently undemocratic and suspicious? . To begin with, people are justified to ask as to what legal authority Musharraf has to engage in any kind of secret negotiation on public matters, especially with those whom he has already declared “ criminals” in his books? (How we all wish for an end to the shameful usage of the criminal justice system for political ends.)
There is a great degree of consensus among legal experts in Pakistan and abroad that legal, political and constitutional crisis engulfing Pakistan, is the direct consequence of Musharraf's ultra vice actions. (The term ultra vice describes activities of government officers, which are taken without legal authority.) The hope for reverting the recent constitutional crisis in Pakistan, rests on the ongoing struggle to have Musharraf's actions declared ultra vice. Once that is accomplished, his actions can be declared null and void and the nullification will be ab inito, that is, from the inception, not from the date of findings.
The hard working and patriotic people of Pakistan have already suffered a great deal on the altar of never ending political hostilities. The people of Pakistan are wondering if anyone in General Musharraf's close circles might dare to advise him, “Mr. President! Tear down this wall of division and opportunism. Please stop using your commando instincts, you are not an in a hostile territory fighting the enemy. Let the electorate process take its natural course. Let Benazir Bhutto and the Sharifs return to Pakistan. Let the judiciary decide the cases against them without any state duress and manipulation. Let hold timely and free elections for national and provincial assemblies, before the Presidential polls under a neutral caretaker government. Let Pakistan embark on the road of democracy so that the people of Pakistan can reach their deserving place in the global community.”
(The writer holds a Master of Laws in International law - Columbia University, New York - and has been practicing in the US for over 17 years.)

------------------------------------------------------------------------