The Issue is Neither Politics Not Shahbaz

Much has been said and written about the arrival and deportation of Shahbaz Sharif. His passport taken at Lahore , Shahbaz a man recovering from cancer is now in Jeddah. What caused Shahbaz’s deportation is well known as is the three-way deal struck between the Saudi Crown Prince, President Pervez Musharraf and the Sharifs.

There are certain undeniable facts relating to the deal. Five are noteworthy. One that the deal came about as a result of the Sharif’s family desire to not face the punishment awarded to Nawaz Sharif in the October 12, 1999 hijacking case. Two, the extremely close ties between the Sharifs and the Saudi Crown Prince prompted the latter to broker the deal. His special envoy the son of the Lebanese Prime Minister, arrived in Pakistan oversaw the finalization of the 3-way deal.. Third, that General Pervez Musharraf was forced by the nature of the Pakistan Saudi relations to agree to Saudi intervention for the deal. Four, the deal written on a non-official paper led to the Sharif clan’s exit from Pakistan for a 10 year period. Fifth, th! at Shahbaz Sharif was not an original party to the deal negotiated between Kulsoom Nawaz and the army. When first informed by an army brigadier, accompanied by his son Hamza, Shahbaz refused to sign the deal forcing him to leave Pakistan. However the ‘all or none’ approach of the army in allowing the deal to go through compelled him to sign so as to go along with his family’s ‘wishes.’

What has happened subsequently between the Sharifs and Musharraf government is all well known. Residing in Jeddah running his steel mill Nawaz remained very critical of Musharraf and the establishment crafted political setup. Shahbaz opted for a low profile conciliatory approach balancing self-criticism with mistakes of the Musharraf regime. Familiar with the power structures in Pakistan, by virtue of his close and cordial interaction with General Musharraf the army chief in 1999, Shahbaz learnt to accept ground realities ranging from General Pervez Musharraf to Chaudary Shujaat, the US support for Musharraf and the limited relevance of Pakistan’s judiciary.

Shahbaz continued with his ‘forgive and forget’ approach. But he was a lone player. His Jeddah clan now with business interest in Saudi Arabia and his PML(N) parliamentarian’s confrontational politics could not have complemented Shahbaz’s ‘forgive and forget’ approach. In addition the distrust factor between the Musharraf establishment and even Shahbaz Sharif never receeded. There were enough ‘tales’ in Musharraf’s hearing to neutralize Shahbaz’s reticent peace overtures he conveyed through the press interviews and public talks.

Perhaps the most relevant factor for Pakistan’s establishment was the ‘success’ it was achieving in its political reengineering project. If on the one hand it had managed the unprecedented feat of creating a sustainable anti Bhutto PPP break away factions through ministerial ‘offerings’, its strategy was no less massively depleting the ranks of its once patronized party the Nawaz Sharif Muslim League. Men of politics hovered around the two polls, the PML(Q0 and the anti PPP, for political kudos. The establishment game was the only one in town. In the immediate context these power seeking people were right. Principles, integrity and democratic norms were generally irrelevant to both the political leadership and the country’s establishment deep into political maneuverings. Byzantine intrigues, palace plans, shifting! loyalties and patriotism in words came on the cheap. The law of indispensability too worked. Many acknowledge Parvez Elahi as a competent Chief Minister.

The establishment has deftly manipulated the political landscape. Shahbaz for now appears marginalized, Benazir in exile, Javed Hashmi is suffering excessive penalty and Zardari a prison-permanent by executive preference. Their faults perhaps don’t match their penalties and law remains a back-bencher. Candid to the core Musharraf in his recent NAB address explained “environmental contradictions” as reason for much that is still non-credible in the exercise of power. Musharraf still harbors the dream of a reformed Pakistan; above all of a reformed State structure, a purposefully functioning parliament and a lawfully functioning executive. A tall but indispensable order.

It is then in this context that the Shahbaz case acquires special relevance. Not in the primarily political context. Yet as Shahbaz arrived around the time of ‘project PML unification’ all hell broke loose. Panic took over. Photographers bashed and equipment smashed and snatched. Power managers remained blind to the fact that politically PML(N) is now a fast dwindling force. Green pastures beckon yesterdays loyalists. For example soon a key PML(N) man, whose vocal senator sister heckled the loudest as President general Musharraf addressed the joint parliament, will be launching his own airline.

These are times of deal making. Also the occasional tough talkers are ‘hijacked’ away from action points; as was the PIA plane from Islamabad to Peshawar. The publicized reason was a bomb threat at the Islamabad airport. The fact was preventing PML(N)’s Tehmeena Daultana’s inconsequential anti-Musharraf bombardment in the Assembly. Undoubtedly as further political engineering inevitably ensues, barring any major ‘upsets’, more of these shenanigans will come our way.

The question therefore for President Musharraf is what are the areas in which he can actually make the difference despite this ongoing political mess. Judiciary is the most critical. Yet in dealing with the Shahbaz Sharif case the Executive and the State ignored the April 7th Supreme Court judgment headed by the Chief Justice Nazim Hussain Siddeeqi in the Mian Mohammad Sharif verses federation f Pakistan case.

According to Para 28 of the judgment “it is not denied by learned attorney general for Pakistan and advocate general of Punjab nor so could be denied that article 15 of the constitution bestows a right on every citizen of Pak to enter or move freely throughout the country and to reside or settle into any part there of. It is a settled proposition of law that the right to enter into country cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a citizen of Pakistan and has the constitutional rights to remain in the country”

In deporting the petitioner from the land of his citizenship the State and the Executive articles 189 and 190 of the Constitution of the Islamic republic of Pakistan were also violated.

According to article 189 “any decision of the Supreme court to the extant that it decides a question of law or based upon or enunciates a principle of law, be binding on all other courts in Pakistan.

According to article 190 “all executive and judicial authorities throughout Pakistan shall act in add of the Supreme Court.”

Ostensibly it was in direct violation of these clauses that Shahbaz Sharif a bonafide citizen of Pakistan was deported. It also is a fact that Shahbaz himself acknowledged that he had signed a deal to stay away from Pakistan for 10 years. But under extra ordinary circumstances. Equally difficult was it then for the unwilling Musharraf government to enter the 3-way deal. Infact for reasons involving a third party the government is also constrained to not produce the deal before the court.

In the judgment of April 7th however the learned judges pointed out that “it is alleged that government of Pakistan to date continues to insist that some sort of a deal exists under which the petitioners and his family members opted to live in exile…that no such document supporting such deal has ever been produced by the government.

The State’s refusal to abide by the Supreme Court judgment raises two pertinent questions regarding the role of judiciary and the enforcement of rule of law in Pakistan. These issues are far more critical then the man Shahbaz Sharif. Let these not been seen as political issue relating to a politician man who appears to neither have the inclination, the health or for now the political clout to upset any ‘apple cart.’

The triggering issue maybe Shahbaz yet the questions are far more fundamental. They are about how the State of Pakistan must function. The issues of a credible state have been at the heart of what General Pervez Musharraf has repeatedly maintained are his goals for Pakistan.

For one if the executive had reasons to not abide by the judgment of the Supreme Court it was incumbent upon it to bring the same to the notice of the Supreme Court. The second question relates to the very deal itself. It was a deal struck by the government then in good faith, on the one hand given the nature of Pakistan Saudi relations but on the other it was premised on the very violation of a citizen’s right to the citizenship of his country of origin. The government may have, or indeed has acquired in the power game a political plus by deporting an ill and anguished Shahbaz Sharif on May 12. Yet in binding Shahbaz Sharif to sign the deal under the ‘all or non-approach to the deal, the State committed a wrong against its citizen whose rights of citizenship the Constitution makes the State mandatory to uphold. Indeed an agreement even though forced upon the government of Pakistan was struck to ironically violate the very social contract that a State has with its citizen.

These special circumstances could well be justified under the law of necessity. Yet it remains unclear whether the State and the executive responded to the learned bench of the Supreme Court by explaining the extra ordinary circumstances in which the three-way deal was struck.

On a border note whatever the political realities and the Reason of the State, it is imperative that a credibly run State must do away with lack of transparency and patent illegality. General Musharraf above all, as one who has committed to reform the State cannot overlook these serious wrong doings. The political reality of today’s Pakistan poses minimal threat to President Musharraf. It requires both an understanding of the current power dynamics and a boldness of action, not unknown to General Musharraf, to adhere to the April 7th ruling of the Supreme Court. Credible state systems are such that when even a globally powerful and blundering President of the United States is summoned by the 9/11 enquiry commission for c! ross examination, he submits to legal will.

For us in Pakistan the Supreme court ruling can be seen as an opportune moment providing the State and the executive to undo the illegality which was forced upon it by a set of special circumstances in December 2000. Ultimately in politics every action has to be examined from the prism of accountability. The December 2000 unavoidable political agreement when held up against Constitutional standards passes as the worst form of illegality. The well known doctrine of illegality, which maintains that any agreement whose intent and objective is in violation of law, is an unenforceable agreement. While the bulk of the Sharif clan left the country willingly, thereby voluntarily giving up their right of citizenship for a period of ten years, in their case the doctrine of illega! lity can perhaps be overlooked. Not in the case of the Shahbaz family. In their case the legal recourse taken by them to seek their return calls for reconsideration by the State and the Executive. Equally an independent Supreme Court can call in question Shahbaz Sharif May 12 the deportation.

Much depends on one man alone to set the direction of Pakistan’s State and executive power in consonance with the requirement of just and fair play. A man genuinely working to end the curses of sectarianism, poverty prevalence, debt riddance, economic revival and even human rights has the opportunity to take the right step on the Shahbaz case. This would have a far reaching impact on Pakistan’s power culture. Reconsideration of Zardari and Javed Hasmi’s cases too must follow. Those who claim that Shahbaz’s return can be cause for political turbulence or upheaval need to familiarize themselves more with the current political realities of Pakistan.