The Supreme Court of Pakistan has handed down two interesting judgments recently. Both are sufficiently ambiguous to suggest that the court has thrown up a couple of balls but expects others to catch them in flight and carry them to the goalpost.
The first judgment upholds every citizen’s fundamental right to live and return to his homeland. But it adds the caveat: “subject to law”. Surely, this was unnecessary since every right is subject to law and circumscribed by it anyway. So what could the court possibly have in mind in the case of Shahbaz Sharif’s impending return that it hasn’t spelt out clearly?
Clearly, the government can arrest Shahbaz Sharif when he lands on Pakistani soil on the basis of one charge or another, true or trumped. The law will then be invoked when the case is framed and submitted to scrutiny by the courts. But given past experience in general and that of Asif Zardari in particular, troublesome politicians can generally be kept behind bars on one lawful pretext or another for as long as the government likes. However, this doesn’t seem to bother Mr Sharif. He has said that he is ready to face arrest and contest the charges against him. What he doesn’t want is to be put on another flight out to Riyadh, there to face irrevocable social captivity like his elder brother and father. Therefore the issue of “deportation” is at the heart of the matter not just for him but for the government as well. Having allowed Mr Sharif the right to return to his country, has the SC enabled the government to deport him out of the country lawfully?
There is no specific law under which a Pakistani citizen who has not committed a crime abroad and who is not subject to any extradition treaty can be lawfully deported. To be sure, we have had cases of extradition (Ramzi Yusuf et al) in which Pakistani citizens were nabbed and rather arbitrarily, some would say unlawfully, handed over to the US government which wanted to try them for specific crimes. But in the case of Mr Sharif, he has committed no crime for which he may be “wanted” by the Saudi Arabian government and for which it might be prepared to lay the evidence before a relevant court of law in Pakistan.
Of course, the government may argue, as it has done so far, that Mr Sharif would breach an “agreement” by returning to Pakistan, thereby enabling the government of Pakistan to deport him to Saudi Arabia. What is this “agreement”? Is it a “sovereign” agreement between two countries to which the Sharifs have appended their signatures without coercion and which is subject to international law? Or is it a breach of a three-way “contract” between the Sharifs and two governments which is subject to domestic and international law? Thus, if the government is readying to deport Mr Sharif it should also get ready to contend with questions such as these when it is called upon to present its evidence and defend its action in the SC. In the event, given the dubious nature of the so-called “agreement” that cannot apparently be made public, the SC’s stricture of “subject to law” may come to apply more to the government than to Mr Sharif.
The SC has stirred another important subject recently. The case before it related to a man who had been convicted by an anti-terrorist court of kidnapping a woman and forcing her to sign a cheque. After his appeal was turned down by the High Court, he approached the victim and struck a compromise with her. Her lawyer relied on Islamic law to make his defence. He argued that the Holy Prophet (pbuh) forgave a Hindu (sic) woman who had killed his uncle Hazrat Hamza. But the judges turned down the plea. They argued that those convicted of terrorism cannot be given the benefit of compromise or personal arbitration because they are perpetrators of “crimes against society”. In fact, one of the judges on the bench said that parliament should legislate on such matters in order to curb the menace of terrorism.
This judgment raises important questions. Why should these observations relating to “crimes against society” apply only to judgments of anti-terrorist courts and not to those delivered under the Hadood laws? Both sets of laws are the product of parliament. Why is “diyat” acceptable under Hadood and not under “terrorism”? Why can men who violate the rights of women under Hadood be let off on the basis of a compromise with aggrieved woman while men who commit lesser crimes under the anti-terrorist laws are denied the relief of an out-of-court compromise? Aren’t crimes against women crimes against humanity and society? Isn’t it time to challenge the Hadood laws on the basis of the SC’s latest utterances?
The senior judiciary is guilty of many acts of omission in the past. It is time it delivered some good acts of commission.