May 16, 2004

‘Common law cannot entitle the government to extern any citizen unless reasonable restriction in the public interest is established. The government was not competent to extern Shahbaz Sharif on the plea that there was such an agreement,’ says Justice (retd) Rashid A. Razvi

FORMER Justice Rashid A. Razvi, in this interview to Dawn Magazine, says that the government, acting on its whims, has forced Shahbaz Sharif to become an absconder by forcibly sending him out of the country after his bid to return home. He maintains that it was also a violation of the guarantees given under Article 15 of the Constitution.

Q. What are the legal implications of the government’s handling of Shahbaz Sharif’s bid to return home and his subsequent deportation in accordance with the so-called agreement with the Sharif family?

A. The agreement has not been made public and no one knows what the terms and conditions are of that agreement. What authority was conferred on the federal government through that agreement to extern Shahbaz Sharif. It is simply an allegation that by virtue of that agreement, for which Saudi Arabia stood a guarantee or a surety, that the Sharif family will remain out of Pakistan for 10 years. These are mere words against words. Even if there is an agreement, I am of the view that it is hit by Article 15 of the 1973 Constitution. Because Article 15 guarantees that every citizen is free to enter and move freely into Pakistan. The only rider is restriction imposed by law in public interest. Common law cannot entitle the government to extern any citizen unless reasonable restriction in the public interest is established. So I don’t think that his externment was in public interest and therefore the government was not competent to extern him on the plea that there was such an agreement.

Q. Before Shahbaz Sharif landed at Lahore, the government functionaries were saying that he was involved in many cases, including a murder case. In view of this, is the government competent to deport him instead of trying him in a court of law here for the alleged guilt?

A. I think the government has the power to withdraw from the prosecution. But that has not been done. The case is still pending in the anti-terrorism court at Lahore where he has been implicated in a case. Other powers, such as granting pardon, are with the President. But that possibility will arise after a decision of the court. Not before that. The government has, in fact, externed an accused person from the territory of Pakistan. They have forced him to become an absconder. Federal government has forced Shahbaz Sharif to become an absconder. How can the court declare him an absconder now? It will be very difficult for the NAB and other such authorities to proceed against him because the federal government is a party to his externment.

Q. How do you look at the refusal of the court to entertain Shahbaz Sharif’s petition to stall his anticipated externment?

A. I read in Dawn that it was returned by the Registrar.

Q. What are its implications?

A. I believe it was turned down because it was not considered to be a matter of public importance. But at the same time, there are observations of the full bench of the Supreme Court which had earlier rejected Shahbaz Sharif’s petition that the federal government has not placed the material on record which would create any apprehension in the mind of Shahbaz Sharif that he will be externed. In this observation, the bench had also said that the agreement about which the government had been talking had not been placed on record. I believe that the federal governments also played a game with the Supreme Court by not placing that agreement on record. The entire emphasis of the Attorney General in that matter was that the petition does not come within the purview of public importance. I must say they were not fair.

Q. What will be the moral and legal impact on the body politics of Pakistan? Was the government action was taken from a weaker position?

A. I think the public is clear in its mind that this is a repetition of the Ayub Khan or Ziaul Haq era. When Musharraf had usurped power, he had claimed to introduce sustainable democracy. That has been totally exposed by what they did on Shahbaz’s arrival, which never happens in a civil political democracy. It can only happen when there is a General at the head of the government.

Q. How do you look at the claims of the information minister Shaikh Rasheed Ahmad in which he had claimed that everything was normal and citizens were not stopped or denied their fundamental rights?

A. He was contradicting himself after every few minutes on different TV channels. He was not able to cite a single incident in any other democratic country where a citizen has been expelled in such a manner. Those who are externed are sent back under the Extradition Act, if they are wanted in a criminal offence by another country. Not on the basis of a civil agreement or a civil contract.

Q. Has the government established a new precedence of handing over Pakistanis and others to foreign governments without proceeding against them in its own court of law?

A. In the Extradition Act, there is a provision that a magistrate will conduct the inquiry which should be to the satisfaction of the court that there is sufficient material connecting the person required by a foreign government with the offence. Recently, there was a judgment of the division bench headed by Justice Sabihuddin Ahmad in which he has basically followed the Azam Khan case (PLD 89 Supreme Court, p266). In that also, emphasis is on inquiry which can be challenged to ascertain whether it was independent or not. But now they don’t bother for these things. They just hand over anyone to any foreign government without following the law of the land. It is all on whims, and they call it democracy.

Q. Do you think this whole visit was part of some deal between the Sharif family and Gen Pervez Musharraf?

A. I am not a political analyst, but I can say that earlier people were saying that there was some political settlement between the Sharif family and the present government, according to which he will be allowed to return to Pakistan. That has ended after his externment because if there was a settlement, he would not have been sent back like this.

Q. How will it influence Pakistan’s politics?

A. I think the perception that this is a police state and it is being run by the agencies has been reinforced. They have no consideration for the civil society and no respect for the constitutional guarantees. They are all powerful.

Q. Don’t you think Shahbaz Sharif has shown the way to Benazir Bhutto and Altaf Hussain?

A. Yes. This is an example for the self-exiled leadership. But I think the case of Benazir Bhutto will be different. If she returns, they will not extern her. Instead, they will book her in more than a dozen more cases until new elections are held and a new government for another five years is properly entrenched.

Please Visit our Sponsor (Ads open in separate window)