JURIST Contributing Editor Ali Khan of Washburn University School of Law says that the Pakistan government's deportation of ex-prime minister Nawaz Sharif in the wake of his attempted return from exile raises important legal and constitutional question and reflects the Bush administration's disinterest in defending democracy in the Muslim world...
The exile agreement and Sharif's deportation raise serious plea bargaining and constitutional questions. These questions also put in doubt the US commitment to democracy in the Muslim world.
Plea Bargain Questions
In defending Sharif's deportation, the Musharraf government argues that Sharif has breached the terms of his contractual exile and "that, from now onwards, no friendly state or individual would ever believe any verbal or written agreement of Nawaz Sharif." A day before Sharif's arrival in Pakistan, the Saudi intelligence chief met with Musharraf for more than two hours. The intelligence chief later announced in an open press conference that Sharif was bound under the exile agreement not to return to Pakistan before 2010.
The contractual arguments made to defend Sharif's deportation are part secular and part Islamic. The secular argument emphasizes the logic of plea bargain -- a type of contract that the defendant makes with the government to avoid prosecution of criminal charges. Instead of spending years in prison upon conviction, the argument goes, Sharif bargained to be exiled to Jeddah, where the Sharif family operates extensive business and maintains a lavish mansion known as Sharif Palace. This secular argument draws support from Islamic norms under which Muslims are obligated to faithfully perform agreements. "And (truly pious are) they who keep their promises whenever they promise," says the Quran (2: 177). In criticizing Sharif for his premature return to Pakistan, Musharraf makes the secular argument whereas the Saudis make the Islamic argument.
Upon scrutiny, however, these contract-based arguments are far from persuasive. Unlike the United States, where plea bargaining is the primary method for the disposal of criminal cases, Pakistan does not subscribe to plea bargaining as a lawful method for determining guilt and meting out punishments. Sharif's plea bargaining was contrary to the laws of Pakistan and its enforcement is tantamount to punishing unproven guilt procured under pressure. Furthermore, Sharif's plea bargaining was conducted without legal safeguards and judicial supervision considered indispensable in plea bargain cases. A plea bargain negotiated in a prison cell has no validity under any rule of law.
The Islamic argument for the enforcement of the exile agreement is even more problematic. The Quran does mandate the performance of contracts; and, exiling is a lawful punishment. Under Islamic law, however, agreements must be voluntary and transparent. Agreements obtained through coercion are invalid. A marriage contract, for example, is invalid if spousal consent is not freely given. Even a commercial bargain is set aside if made under confusing and less than transparent circumstances.
Sharif's exile agreement was neither voluntary nor transparent. General Musharraf coerced Sharif to leave the country so that his military rule would face no popular resistance. It is unclear whether the exile agreement was ever reduced to writing. There is no evidence that Sharif signed the exile agreement. The circumstances surrounding the agreement are muddled, not transparent. Under Islamic law, therefore, the exile agreement will be considered dubious and unenforceable.
Notwithstanding the exile agreement, the Pakistan Supreme Court in a constitutional petition decided that Sharif has the constitutional right to return to Pakistan. In its concise order, the Supreme Court relied on Article 15 of the Constitution to declare that Sharif as a citizen of Pakistan has "an inalienable right to enter and remain in country" and that his constitutional right to return "shall not be restrained, hampered, or obstructed by the Federal or Provincial government agencies, in any manner." Rightfully assuming that the Court has overridden the exile agreement, Sharif returned to Pakistan.
The Musharraf government has complied with only one part of the Supreme Court Order. It let Sharif enter the country but refused to let him stay. The Supreme Court Order recognizes two distinct rights protected under Article 15 of the Constitution. The first right empowers the citizen to return to Pakistan. The second right confers on the citizen the option to remain in Pakistan. Under Article 15, the citizen's freedom of movement may be restricted by law in the public interest. However, the Article imposes no restrictions whatever on the right to remain in Pakistan. Hence Sharif enjoys an unqualified right to remain in Pakistan, even though the government may restrict his movements for a credible public interest reason. Ignoring the Constitution and the Supreme Court Order, the deportation subverts Sharif's fundamental right to remain in the country. The deportation also denies the people of Pakistan the opportunity to find out whether Sharif committed any crimes while in power.
For most Pakistanis, the US response to Sharif's deportation is disappointing. Unlike the European Union, which has asked Musharraf to respect the Supreme Court Order, the Bush administration has dodged the issue. The Bush administration argues that the Sharif deportation is Pakistan's internal matter. This non-interventionist argument, in addition to sounding hypocritical, lends approval to deportation. The Bush administration's alliance with Musharraf is contrary to American interests and values. It is not even smart because Musharraf has reached the end of his rope. The alliance with a military dictator offers one more proof that the Bush administration has no serious interest in defending democracy in the Muslim world.
Ali Khan grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas. His publications are available here.