Liaquat Ali KhanPosted Sep 11, 2007 •Permalink • Printer-Friendly Version
Former Prime Minister Sharif’s Lawless Deportation From Pakistan
Liaquat Ali Khan
On August 10, Pakistan’s former Prime Minister Nawaz Sharif who had come from London to campaign for the restoration of democracy was rudely deported to Saudi Arabia within hours of his arrival at the Islamabad airport. The deportation decision came from General Pervez Musharraf, who had ousted the Sharif government in the 1999 successful military coup. At the time of the coup, Sharif was unpopular for a variety of reasons, including Sharif’s distaste for any checks on powers of the parliament and his exuberance for unregulated markets. Sharif was charged with crimes of corruption.
The exile agreement and Sharif’s deportation raise serious plea bargaining and constitutional questions. These questions also put in doubt the US commitment to democracy in the Muslim world.
Plea Bargain Questions
In defending Sharif’s deportation, the Musharraf government argues that Sharif has breached the terms of his contractual exile and “that, from now onwards, no friendly state or individual would ever believe any verbal or written agreement of Nawaz Sharif.” A day before Sharif’s arrival in Pakistan, the Saudi intelligence chief met with Musharraf for more than two hours. The intelligence chief later announced in an open press conference that Sharif was bound under the exile agreement not to return to Pakistan before 2010.
The contractual arguments made to defend Sharif’s deportation are part secular and part Islamic. The secular argument emphasizes the logic of plea bargain—a type of contract that the defendant makes with the government to avoid prosecution of criminal charges. Instead of spending years in prison upon conviction, the argument goes, Sharif bargained to be exiled to Jeddah, where the Sharif family operates extensive business and maintains a lavish mansion known as Sharif Palace. This secular argument draws support from Islamic norms under which Muslims are obligated to faithfully perform agreements.
Upon scrutiny, however, these contract-based arguments are far from persuasive. Unlike the United States, where plea bargaining is the primary method for the disposal of criminal cases, Pakistan does not subscribe to plea bargaining as a lawful method for determining guilt and meting out punishments. Sharif’s plea bargaining was contrary to the laws of Pakistan and its enforcement is tantamount to punishing unproven guilt procured under pressure. Furthermore, Sharif’s plea bargaining was conducted without legal safeguards and judicial supervision considered indispensable in plea bargain cases.
The Islamic argument for the enforcement of the exile agreement is even more problematic. The Quran does mandate the performance of contracts; and, exiling is a lawful punishment. Under Islamic law, however, agreements must be voluntary and transparent. Agreements obtained through coercion are invalid. A marriage contract, for example, is invalid if spousal consent is not freely given. Even a commercial bargain is set aside if made under confusing and less than transparent circumstances.
Sharif’s exile agreement was neither voluntary nor transparent. General Musharraf coerced Sharif to leave the country so that his military rule would face no popular resistance. It is unclear whether the exile agreement was ever reduced to writing. There is no evidence that Sharif signed the exile agreement. The circumstances surrounding the agreement are muddled, not transparent. Under Islamic law, therefore, the exile agreement will be considered dubious and unenforceable.
Notwithstanding the exile agreement, the Pakistan Supreme Court in a constitutional petition decided that Sharif has the constitutional right to return to Pakistan. In its short but concise order, the Supreme Court relied on Article 15 of the Constitution to declare that Sharif as a citizen of Pakistan has “an inalienable right to enter and remain in country” and that his constitutional right to return “shall not be restrained, hampered, or obstructed by the Federal or Provincial government agencies, in any manner.” Rightfully assuming that the Court has overridden the exile agreement, Sharif returned to Pakistan.
The Musharraf government has complied with only one part of the Supreme Court Order. It let Sharif enter the country but refused to let him stay. The Supreme Court Order recognizes two distinct rights protected under Article 15 of the Constitution. The first right empowers the citizen to return to Pakistan. The second right confers on the citizen the option to remain in Pakistan. Under Article 15, the citizen’s freedom of movement may be restricted by law in the public interest. However, the Article imposes no restrictions whatever on the right to remain in Pakistan. Hence Sharif enjoys an unquali
For most Pakistanis, the US response to Sharif’s deportation is disappointing. Unlike the European Union, which has asked Musharraf to respect the Supreme Court Order, the Bush administration has dodged the issue. The Bush administration argues that the Sharif deportation is Pakistan’s internal matter. This non-interventionist argument, in addition to sounding hypocritical, lends
Ali Khan is professor of law at Washburn University in Topeka, Kansas.