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DAWN - Opinion; September 01, 2007

September 01, 2007


The presidential pardon

By Khalid Jawed Khan

A FULL bench of seven judges of the Supreme Court of Pakistan has held that being citizens of Pakistan, Mian Nawaz Sharif and Mian Shahbaz Sharif cannot be denied the right to enter or return to Pakistan. Article 15 of the Constitution of Pakistan provides that “every citizen shall have the right to remain in, and subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof”.

It appears that there was some arrangement between the Sharif family, the government and some foreign dignitaries which facilitated the pardoning of Mian Nawaz Sharif and enabled him and his family to leave the country. However, it is also evident that there was no formal agreement as was incorrectly claimed by the government.

The only documents produced by the government before the Supreme Court were unilateral undertakings by the Sharif brothers. Whatever may be the moral or political implications of such an undertaking for them, these could hardly be used before a judicial forum to deny the brothers their constitutional right.

It is also evident that these undertakings by the Sharif brothers and their consequent exile were involuntary and not an expression of their free will or choice. Further, our superior courts have repeatedly held that the fundamental rights of citizens cannot be defeated or curtailed on grounds of waiver and acquiescence. This principle is fully applicable to the present case.

Immediately after the announcement of the short order by the Supreme Court in the case of the Sharif brothers, different government functionaries have started arguing that since Mian Nawaz Sharif has not honoured his commitment for remaining in exile for 10 years, the pardon granted by the president against his conviction in the hijacking case etc. would stand revived, and, consequently, he would be arrested and sent to prison to “complete” his term.

Article 45 of the Constitution of Pakistan provides that the president shall have the power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. This power is exercised by the president on the advice of the prime minister.

At the time, when this power was exercised in favour of Mian Nawaz Sharif, Rafiq Tarar was president while General Pervez Musharraf was the chief executive of Pakistan exercising the powers of prime minister. Rafiq Tarar has now publicly stated that the presidential power exercised by him in favour of Mian Nawaz Sharif cannot be legally recalled.

Some government functionaries have argued that General Musharraf can recall the earlier presidential pardon on the basis of the principle reflected in Section 21 of the General Clauses Act, 1897, which provides that the power of an authority to pass an order also includes the power to recall that order.

The exercise of presidential power under Article 45 of the Constitution has been considered by our superior courts in a number of cases. The courts have held that this constitutional power is not subject to any other statutory limitation.

It was observed by the Supreme Court in the case of Bhai Khan vs State PLD 1992 SC 14 that the exercise of discretion by the president is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process, apart from specific and special cases where relief is by way of grace alone.

The argument of the president’s advisors that since Mian Nawaz Sharif has not honoured his commitment, the presidential power exercised in his favour can be recalled and his conviction stand restored seems flawed.

Firstly, the principle reflected in Section 21 of the General Clauses Act, 1897, cannot control the exercise of constitutional power under Article 45. Secondly, it is settled law that no authority can recall any order where as a result of that order some valuable rights have accrued in favour of a person.

It was held by the Supreme Court in the case of Pakistan vs Muhammad Himayatullah Farukhi PLD 1969 SC 407 that the principle of locus poenitentiae (power receding till a decisive step taken) is not available to the government if certain rights were created in favour of any individual.

The presidential power under Article 45 of the Constitution was exercised in favour of Mian Nawaz Sharif, and it resulted in the creation of valuable rights in his favour. Thus, General Musharraf cannot legally recall the order passed by the then President Tarar in favour of Mian Nawaz Sharif.

There is yet another argument which supports the contention of Mian Nawaz Sharif’s supporters. While passing an order in favour of Mian Nawaz Sharif, the president was exercising public power. All public power, whether exercised by the highest functionaries of state under the provisions of the Constitution or any other public servant under the ordinary provisions of laws/rules, are to be exercised in the public interest and according to well-settled principles of law.

Public power can neither be exercised for extraneous or impermissible objectives nor can these be used with mala fide intent. Those on whom public power is conferred are required to act as public trustees and not otherwise.

General Musharraf’s advisors are now arguing that the presidential power was exercised by him on the condition that Mian Nawaz Sharif would not return to Pakistan for 10 years. And since Mian Nawaz Sharif is planning to return to Pakistan before the expiry of the period of 10 years, the benefit conferred on him through the presidential pardon would stand recalled and his convictions restored.

There is another major flaw with this contention. What General Musharraf’s supporters are actually saying is that the presidential pardon was conditional and dependent upon the continuous violation of Mian Nawaz Sharif’s fundamental right as a citizen under Article 15 of the Constitution for a period of 10 years.

The Supreme Court has now firmly held that Mian Nawaz Sharif being a citizen of Pakistan cannot be deprived of his fundamental right under Article 15. Thus, any exercise of constitutional power, even by the president, that is conditional upon a continuous violation of a citizen’s fundamental right can neither be sustained in the eye of the law nor be given effect in any court of law in the country.

If the government still attempts to revive the sentence passed against Mian Nawaz Sharif in the hijacking case by arresting him on his return, he would be fully entitled to challenge it in court.

However, Mian Nawaz Sharif and his colleagues should also consider this issue from another angle. If the government wants to revive the sentence against him in the hijacking case, then his right to appeal to the Supreme Court against his conviction would also stand revived.

It is time that the hijacking case was reopened so that the injustice committed to Nawaz Sharif and the people of Pakistan in the garb of that drama is argued before the Supreme Court.

The people are entitled to know as to who hijacked what on October 12, 1999. Was it Mian Nawaz Sharif who was guilty of hijacking General Musharraf’s aircraft on that day or were the generals, including Musharraf, guilty of hijacking the country on that fateful day?

Nawaz Sharif is fortunate that he has an opportunity not only to clear his name in a crime that he claims he never committed but also to bring to justice those who subverted the Constitution and hijacked the country. He should not squander this rare chance, and seize this moment.

Return of the prodigal son

By Murtaza Razvi

THE brothers Sharif are brimming with confidence like never before since Nawaz Sharif’s overthrow in October 1999. From their own standpoint, too, they are making all the right noises. ‘No deal with Musharraf.

He is not acceptable, with or without the uniform, Benazir is acting in violation of the Charter of Democracy by talking to the general. The ARD is dead, long live APDM’, etc, etc.

The rhetoric is going down well with the people in the Sharifs’ home province. Punjab seems to have forgiven them all their sins, if not out of love for the Sharifs, then certainly because of the prevailing anti-Musharraf sentiment and Benazir’s making a hash of it all.

The vacuum Bhutto has thus created is being filled by the lorry load, and not just in a manner of speaking. Nawaz Sharif has announced that he would welcome any dissenters willing to switch loyalties from the ruling PML to his party. Note the use of the euphemism, ‘dissenters’, from only two weeks ago’s reference to such people as ‘turncoats’.

The tide is turning in Punjab, which, given its majority vote bank and the prospects of a sweeping vote (remember the ’71 Bhutto tsunami?), can single-handedly elect the next government.

What that might mean for the country as a whole will be the question for the day after the polls. ‘Let it be another one of the smaller provinces’ problems. When have they ever been happy, anyway?’ is more likely to be the general response. But let’s not get that drastic just yet; and let’s not discount altogether

the potential of the estranged parties that comprise the All Parties Democratic Movement (APDM), now headed by Nawaz Sharif.

The APDM bouquet has in its fold the religious right led by the Jamaat-i-Islami, a major component of the earlier anti-Bhutto alliance, the Islami Jamhoori Ittehad, the ANP, the JWP and many smaller nationalist parties. If the Sharifs decide to go to the polls under the APDM banner, then only the current ruling coalition parties and Bhutto’s PPP will be the main contestants worth their names.

The platform will emerge as a potent anti-establishment force across Punjab, Balochistan and the Frontier, even if the interior of Sindh were still to be counted as a Bhutto stronghold.

What has happened with the Sharifs is nothing short of a miracle: they have risen from the ashes of the humiliation caused by a bailout deal struck with Gen Musharraf back in 2000.

They have come back into the political arena with a bang, washing the public memory of having shamefully fled the country under a convenient agreement.

In hindsight, the deal struck then worked to their advantage just as well as the heroic comeback which now awaits them at Islamabad airport on September 10. If it were not for Bhutto’s folly, the Sharifs would not have dreamt of such a happy ending. The credit for making the political clock run backwards must go to Ms Bhutto, regardless of whether she strikes a deal with Musharraf or not.

Musharraf: hunter or hound?

By Kuldip Nayar

BULLEH SHAH’S 250th birth anniversary took me to Pakistan. He was a Sufi poet whose body could not be buried for seven days because Kasur, the city he lived in all his life, was dominated by fanatics who did not like his poetry which challenged them as the custodians of Islam.

One of his couplets said that you could not come near God by merely going to Makkah or by taking dips in the holy Ganges. You had to shed prejudice and hatred from your heart if you wanted to be near the Almighty.

Bulleh Shah’s message of universal peace attracted 65 of us, including eight MPs, from India to his mazaar. Although eventually buried some seven kilometres from Kasur, his mazaar was now in the midst of the city. It was partly his message and partly the desire to have friendly relations with India that made nearly the entire population of Kasur come on to the streets to welcome our delegation.

It was a tumultuous reception. Rose petals were showered all the way to the mazaar. We were loaded with garlands. “India and Pakistan dosti zindabad” was the slogan that rang in the bazaars. Subsequently, at a large meeting, the entire gathering raised its hands in response to a question posed by a local legislator as to how many would like to visit India. There is no doubt that the desire to visit Pakistan in our country is equally strong and widespread.

But the bureaucracy in India, as in Pakistan, has a mindset that lives in an age gone by. Intelligence agencies on both sides rule the roost. Bomb blasts by terrorists have made New Delhi rethink the initiative it was taking to relax the visa system.

Strange — the authorities should have realised by this time that saboteurs or militants do not use the regular entry points. They have miles of an unprotected border with Nepal, Bangladesh and even Kashmir to sneak in.

In a way, a few hundred saboteurs are holding millions in the two countries to ransom. It is a vicious circle. Instances of terror do not allow the governments to relax visa rules, and the common man’s wish to normalise relations is not taken into account. New Delhi should take the first step and break the vicious circle by relaxing the visa system, lifting the ban on the entry of newspapers and books and have a substantial exchange of students, scientists, film stars, doctors, lawyers and such other people.

For the participation of some 15 MPs and 40 others from Pakistan in the night vigil on August 14-15, I had to speak to the national security adviser and the foreign secretary. The visas, held up for two months, were cleared within a few hours. At fault was the home ministry which was clearing the antecedents of applicants, including MPs and top media men. One legislator had to sit in Islamabad for three days to get the Indians a visa for Pakistan a few hours before their departure.

If visas can be issued at the eleventh hour, it not only shows the cussedness of the authorities but also the connivance of the political leadership. I have not heard of any government official being punished for not issuing a visa within a few days of the submission of the application. The establishment on both sides knows how keen the common man is to foster friendly relations with the people across the border. But the governments have not yet decided how far to go. Maybe, they are afraid of the people’s joint pressure to have a soft border.

I have been struck by the overwhelming desire of the Pakistanis to bury the hatchet, to let bygones be bygones and to open a new chapter in friendly relations. That kind of upsurge is lacking in our country, except in some parts. Pakistan’s feeling is that people coming from the same stock and culture should come together. But this togetherness should not be interpreted as the two countries becoming one. In fact, they still have a lurking fear of the majority wanting to absorb the minority.

When union minister Laloo Prasad Yadav — and also others like him — remark in television interviews that the two countries would unite, they provide ammunition to fears spread by the fanatics: the Indians may be talking about friendship but they indeed want to embrace Pakistan and have not accepted it as an independent entity. People in India should go out of their way to clear this suspicion. They should never mistake the increasing desire of Pakistanis to be India’s friends. Pakistan’s sovereignty as a separate entity should be as sacrosanct to India as to Pakistan.

Jawaharlal Nehru, India’s first prime minister, said in his speech in December 1947, within six months of Pakistan’s creation, that even if it (Pakistan) were to ask for a merger with India, he would not agree to it because it would create “some other problems.” I recall when I met General Ayub Khan, then living in retirement, after the creation of Bangladesh, he said that he feared that the Indians would some day “try to capture this part of Pakistan but they must understand that we would be a thorn in their flesh.”

My feeling is that the Indian people do understand Pakistani sentiments. Once in a while there are expressions like those of Laloo Prasad Yadav. These should not be mistaken for a general desire to merge Pakistan with India. People should not confuse the efforts at conciliation with a few lunatics who want akhand bharat (united India).

Friendly relations with the Islamic state of Pakistan are crucial for strengthening secularism in India. We have thousands of Muslims who have relatives across the border. The terrorists and jihadis who are originally Pakistan’s crop should be better cut by Islamabad itself. India’s secular polity would gain by it.

Yet if the ISI remains important in the scheme of things — its chief was in London for political negotiations with Benazir Bhutto over the deal with Musharraf — all claims to fight terrorism would be taken with a pinch of salt. When the ISI is found mixed up with the recent blasts in Hyderabad, people in India wonder how sincere Musharraf is about his action against terrorism or a desire for peace with India.

The verdict of history is going to be against Musharraf. A bit of credit may be given to him for persisting in negotiations with estranged India after he overthrew Nawaz Sharif who had entered into a time frame settlement with New Delhi. Has Musharraf been running with the hare and hunting with the hound?

The writer is a senior columnist based in New Delhi

Battle for hearts and minds

By Hajrah Mumtaz

IN terms of policing society, most people in Pakistan refer to the maintenance of law and order, legislation, reforms — all formal methods of establishing the law.

In its broader sense, the term also refers to non-formal means where citizens police themselves. In most cases, however, this is a foreign concept, partly because governance in Pakistan is now little different from colonial rule. Citizens take no responsibility because they perceive they have little at stake.

The state is regarded as an oppressor whose moves must be thwarted, which is explained to some extent by bureaucratic high-handedness and corruption. But it is also because of the perception that the sarkar owns the country and, therefore, all problems are somebody else’s.

For example, the state can ensure smoother traffic flow by providing adequate road and public transportation networks than by enforcing the law. In non-formal terms, it requires citizens to follow the rules and encourage others to do the same. Similarly, maintaining cleanliness depends on the state’s ability to collect and safely dispose of the solid waste.

However, it equally depends on citizens taking the trouble to use the facilities provided.In this game of catch-me-if-you-can, rules are followed only if there’s no option; but society cannot function smoothly while citizens and the government try to checkmate each other. The government may ban polythene bags of certain specifications and conduct raids but little will be achieved until citizens refuse to accept such bags.

This situation is easily explained by taking into account corruption, insufficient resources, inadequate infrastructures and the lack of education or awareness. All these factors play a significant role and in the final analysis, the buck stops with the state.

The insularity of the ruling elites and the differences between the privileged and the under-privileged have turned the state into an entity quite divorced from the people that it ought to exist to serve.

Poor electoral processes and frequent military take-overs have not helped. It is difficult for anyone to believe that his vote counts when no civilian government has ever been allowed to complete its term, and the citizenry has never had the opportunity to vote a government out.

As far as many people are concerned, governments will come and go regardless; they would just like to get on with their lives and if they break some rules on the way … well, they never owed the government anything in the first place.

© DAWN Group of Newspapers, 2007