THE recent speech by Altaf Hussain has enraged many in Pakistan. There are calls that he be tried for sedition, offences against the state, or high treason. Indeed, some new reports suggest that the federal government is in the process of initiating high treason charges against him.
These are all serious offences under Pakistan’s laws. High treason is defined in Article 6 of the Constitution as any attempt to abrogate, subvert or suspend the Constitution by show or use of force.
Under the High Treason Act of 1973, this offence is punishable by death or life imprisonment.
Other offences against the state are listed in Chapter VI of the Pakistan Penal Code, and include waging or abetting war against the state, facilitating the escape of an enemy of the state, etc.
Sedition is defined by Section 124-A in the same chapter as an attempt by words or other representations to excite hatred, contempt, or disaffection toward the federal or provincial government.
However, there is very little that the government can do right now, considering that Altaf resides in the United Kingdom and is a British citizen.
Further complicating matters is the fact that Pakistan does not have an extradition or a Mutual Legal Assistance (MLA) Treaty with the UK.
Oddly, Pakistan inherited a pre-Partition extradition treaty with the US, which was signed by the UK in 1931. Pakistan has entered into numerous bilateral extradition treaties with a host of states including Thailand, Turkey and China.
The content of Altaf’s speech would be covered by freedom of speech in the UK.
Extradition and MLA treaties do come with limitations. For instance, extradition or MLA can be denied if the offence is not a crime in both countries, or is considered to be a crime of a political nature or character, under the “political offence exception”.
Further, the UK, like other European countries, will not cooperate in such matters if torture or the imposition of the death penalty is expected to apply to the suspected or convicted criminal.
Moreover, it is highly unlikely that Altaf’s speeches would be classified as criminal under UK law, because their content would be covered by freedom of speech there.
The UK is likely to further argue that the request for extradition or other assistance is based on a crime that is political in nature.
The final argument against Pakistan’s demand would be if the UK contends that because treason or high treason carry the maximum punishment of the death penalty under Pakistani law, it is barred from entertaining such requests.
While extradition treaties do exist in multilateral form, they are primarily bilateral in nature. As two states negotiate the terms of the arrangements, such agreements need not be reciprocal in nature and indeed can be lopsided or one-sided.
In other words, both states often have different obligations vis-à-vis each other with one state obligated to do more than the other.
An example of such an arrangement is the 2003 US-UK Extradition Treaty, where a very low level of proof is required by the US for requesting extradition from the UK and not vice versa.
Further, the treaty allows the US the right to get extradited UK citizens and even foreign citizens residing in the UK for violating US law from overseas.
Such was the fate of a Pakistani studying in the UK who faced extradition to the US over a hacking fraud.
Extradition treaties, including those covering transfers of prisoners, are becoming increasingly common across the globe.
While these agreements dilute sovereignty by burdening states with both legal and/or quasi-legal obligations, they have the benefit of promoting inter-state cooperation on global challenges like transnational terrorism, drug trade and white-collar crimes.
Another advantage is that they provide a formalised, transparent and official method of either implementing criminal laws or transferring convicted or alleged criminals between states. Hence there is less temptation for states to involve themselves in secretive and illegal renditions of individuals.
Whether Pakistan wants to enter into such arrangements with Britain is an important political decision where the costs and benefits will need to be carefully balanced.
Many Pakistanis reside in the UK who have stolen millions from the public exchequer in their home country.
An extradition or MLA treaty with the UK would make it much easier for Pakistan to bring these criminals to justice; it would be exceptionally difficult for the UK government to argue that these crimes are of a political nature, and neither do such white-collar crimes carry capital punishment.
Finally a word of caution: if Pakistan decides to enter into such agreements with the UK it must make sure that it enters on an equal footing and on terms that do not undermine its national security imperatives and political and economic interests.
Sikander Ahmed Shah is a former legal advisor to the Ministry of Foreign Affairs.
Uzair J. Kayani is a member of the LUMS’ law faculty.
Published in Dawn, August 9th, 2015