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The Bane of Sovereignty

This article discusses the moral and political implications of former Prime Minister Nawaz Sharif’s two exiles. The article argues that sovereignty of a country is determined by its Constitution. If it is followed in letter and spirit, the sovereignty is intact; if not, sovereignty is harmed.

by Dr. Khalil Ahmad

It is the rule of law alone which hinders the rulers from turning themselves into the worst gangsters.
-Ludwig von Mises, Austrian Economist, 1881-1973

He was born in Pakistan, and was brought up for public life by the military elite of Pakistan. He was a businessman turned into a politician by them. He was corrupt, laundered his illegal money. He was a liar who concealed the facts, didn’t speak the whole truth. He was a weak person who could not tolerate the dark dungeons he was put into by his regime’s over-throwers. He compromised his staying in his own country for an exile. All these ‘allegations’ may or may not be true. But he was a twice-elected prime minister of Pakistan. Does it matter? No! What matters is: wasn’t he a citizen of Pakistan? He was and is still a bona fide citizen of Pakistan.

His case is typically a Pakistani one. First, it involves ethical standards. Second, it pertains to the domain of law. Third, it overarches the political boundaries.

Had he shown any regard for his benefactors with whom he is stated to be in a certain understanding, or had he had any moral substance not to defy the understanding he talks about, be it written or verbal, with any individual or authority as is stated, he would not have been in such an unfortunate position! Regardless of the facts and sure we don’t know would they ever be made public, what we know for sure is that there was a certain understanding between the three parties: the then rulers of Pakistan, the Saudi ruling family, and he and his family. All of his acts and behavior related with his homecoming weaken his position. No doubt, he should have abided by the deal that saved his and his family’s skin. Propriety demands that he should have stayed outside Pakistan till the completion of ten years’ terms as agreed on paper. He was morally bound to keep the word. But he didn’t, and damaged his moral stature.

It may be argued that it concerns his person only as it was up to him to behave or not to behave morally. But, as he is a public figure, a politician, a leader of a political party, he cannot be absolved in such a manner. It is for the people, before whom he is accountable, to judge and censure his person and personality. The government has nothing to do with his moral standing. Yeah, his adversaries are free to take political mileage out of his lapses.

However, if he told a lie before the court, or concealed the truth or told the half truth, it is for the court to take cognizance of this act of him. It needs to be mentioned here that since he himself knocked at the court’s door for justice, the court is authorized to take up his lying and its implications for its judgment that provided him relief. What is important here is to differentiate between those moral lapses which are not cognizable offence, and those which are. If he would have lied in public about his deal or about the details of this deal, or defied his understanding with the two other parties, and not approached the court, the case has simply been a moral one, and only earned a bad name to him. Sure, it was not cognizable and thereby not punishable either in that case.

It means that law and morality are two different domains. No doubt, he lost in the domain of morals. But in the domain of law, his case is strong enough. The deal or understanding that the three parties reached was brought to the court also, and was dismissed outrightly. It must have been. Common sense has it that any deal, agreement or understanding is done between more than one parties. The one that is signed by one party only is merely a promise to one’s own self, or to other parties. It has only moral validity. It can never attain a legal status. It was probably on this ground that he came to the court, and the court maintained his petition.

Also, particularly in his case, the law of the land is supreme. When the said deal was settled, written and signed, the aggrieved party was under sentence. Even if it is maintained that the deal was done freely and willingly, under no duress, and it was to his and his family’s obvious benefit, probably no court of law would admit it as evidence. The fact of his being in the custody of those with whom he reached the deal is enough evidence to invalidate any written deal, agreement or understanding regardless of the signatures put on it either by one or two or all the parties. Suppose, any court of law would have been approached by all the parties for signing it before the court to endow it with a legal status, had the court allowed such a thing is out of question.

Another important point that is being made and raised by many convinces one of the supremacy of the law of the land. It is that no agreement contrary to the fundamental rights ensured in the Constitution of Pakistan can be contracted. These rights have an over-riding quality to them. More than that, the said deal contracted both an unconstitutional and an unlawful ‘demand’ on the part of the aggrieved party: that they would live in exile for a specified period of time. So the deal that was from its very beginning illegal holds no water at this moment also.

When taken on its face value, the deal states that it be kept confidential. But after the filing of a petition by the aggrieved party in the Supreme Court, the government made the deal public by submitting its copies before the court. It was the first breach of what was government of Pakistan also morally bound to abide by. But morals of the government are never a subject of discussion. Only the morals of its functionaries matter, and they are always utterly immoral, and more so in the absence of rule of law. We judge government only in terms of the provisions of the Constitution and law of the country.

Thus the whole case hinges on the point of law. That amounts to saying that since it pertains to the domain of law, it must be viewed in that light first and foremost. That the highest court of the country has already judged that it is an inalienable right of every citizen of Pakistan to come and remain in Pakistan, and likewise it was his constitutional right to come, remain and live in Pakistan. He was not refused visa by the visa consulate of Pakistan, and was thus not having recourse to a court to enter Pakistan. If he were not a citizen of Pakistan, the court must never have entertained such a petition.

The judgment of the court was a lawful boost to his plans whatsoever they were. It was no business of the court to see why he wanted to come to Pakistan. But the civilian-cum-military government was wary of his political plans whatsoever they were. Our concern is that whether the government honored the judgment of the apex court or not. Even the court would not be divulging in digging up the reasons; rather they would only be determining whether the judgment was honored and implemented or not.

Now, as the circumstances suggest, even if he, while in Saudi Arabia, submits or is forced to submit an affidavit in the court to the effect that he did go to Saudi Arabia willingly and is submitting this affidavit under no duress, will it be admissible to the court is a matter of no debate. The facts of the matter are so known by way of eye-witnesses, video-films, TV footages, etc, that it is already established unequivocally that his was an unwilling throwing out of Pakistan. So his kidnapping/deporting to Saudi Arabia is a flagrant violation of the highest court’s judgment. As the judgment derives its validity from an article of the Constitution, the Article 15, his kidnapping/deporting is in fact a defiance and insubordination of the Constitution.

Also, as his case overarches the political boundaries, and as it involves the ruling kings and princes of another country who seem to play an active role in his kidnapping/deporting, it further complicates the issues. First, whether that deal, the nature of which was discussed above in detail, allows another country’s government to indulge in such an act! Second, whether that deal permits our government to behave like this! This raises another question of paramount importance: which law other than the Constitution of Pakistan is supreme in and for Pakistan?

Before coming to these questions, the issue of sovereignty may be dealt with briefly. It’s being pointed out that the uncalled for role of Saudi government has dented Pakistan’s sovereignty. That it was a blatant interference in the internal affairs of Pakistan and that too at the behest of Pakistani government. For one, if it is at the behest of Pakistani government, it’s no interference, then. But, is that so simple? In case of Kingdom of Saudi Arabia, where there is no constitution or higher law and where the will of the rulers is the law of the land, it may have been so simple and a non-issue. Not for us in Pakistan. We have a constitution here. No matter how imperfectly it is implemented, it is there, and dictators too ultimately come to it to take refuge and salvage their ships.

What is sovereignty? Generally, it is exercise of authority by a government of an independent state free from external control. Without going into the details of this handy definition, it may be asserted that both Pakistan and Saudi Arabia are independent states. As far as the exercising of their authority is concerned, it is determined by the law of the land. Or by tradition as is the case with Saudi Arabia where authority is exercised by the royal family. Their authority is absolute in that no law defines or limits it. But in case of Pakistan, the rulers in government derive their authority from the Constitution. It defines and limits their powers. The rulers in Pakistan, whatever is their brand, have no absolute authority.

Hence, for Pakistan the issue of sovereignty is the issue of the supremacy of the Constitution. If the government abrogates the Constitution, the sovereignty will be lost to the whims of the rulers. Thus, the Constitution of Pakistan provides us with a point of reference to see whether in his case of kidnapping/deporting to Saudi Arabia the sovereignty of Pakistan was staked or not.

No sane person would allow himself to disbelieve that a certain citizen of Pakistan was allowed to be kidnapped/deported to another country. Of course, to achieve its ulterior motives Pakistani government acted very enthusiastically. Leave aside the intricacies of sovereignty’s definition; it is evident that the sovereignty of Pakistan was challenged by the country’s own government when it defied the orders of the highest court and violated the Constitution of the country. Not only that, it invited another government to do the same.

Once again, whatever is the status of that deal of his – was it supreme to the Constitution of Pakistan? Firstly, is that deal so overriding that in order to fulfill the demands of that deal the officials of another country are free to take back a citizen of Pakistan to their country about whom the Supreme Court of Pakistan had already made a seven-member judgment to let him come and remain in Pakistan? Is that deal based on such an international law that abrogates the higher laws of independent states and allows taking back of citizens of a country by any country even in the absence of mutual extradition treaties?

Secondly, does that deal give any legal, constitutional leverage to the government of Pakistan to let another country to take back its citizens without having their consents or without fulfilling the legal requirements while no mutual extradition treaty is in force? No, simply not. In Pakistan the supreme law is its Constitution. Legally speaking, no deal, agreement, or contract can be made which is directly or indirectly violative of the provisions of the Constitution and fundamental rights ensured in it. Its violation means the violation of Pakistan’s sovereignty. But how unfortunate that the deal that Nawaz Sharif and brother reached has been made so sacred that to save it the government of Pakistan has staked everything, be it the Supreme Court’s judgment, Constitution of the country, or the sovereignty of Pakistan! Isn’t Pakistan heading to be another Kingdom of Saudi Arabia?


Dr. Khalil Ahmad is associated with Alternate Solutions Institute, Pakistan’s first free market think-tank

This article appeared in The Frontier Post on November 06, 2007.