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Last week the PPP and PML-N started naming candidates to different tickets. Yet an atmosphere of uncertainty prevails, as the Election Commission has still not announced the date for the national elections. According to a press statement by opposition Member of Parliament Moulana Fazal-ur-Rahman, the elections are likely to be delayed by as much as a year.
Last week former Prime Minister Nawaz Sharif and his younger brother Shahbaz Sharif, former chief minister of Punjab, filed petitions with the Supreme Court at Islamabad. The brothers are both living in exile in Britain, and are seeking permission to return to Pakistan to contest the elections as PML-N candidates. Former Prime Minister Benazir Bhutto and Altaf Hussain, founder of the Muttahida Qaumi Movement, are also in self-exile in Britain.
At the time of the military takeover in October, 1999, Nawaz Sharif was prime minister and his brother Shahbaz Sharif was chief minister of Punjab. When their governments were overthrown, both were arrested and detained for the offence of hijacking, which resulted in their conviction.
In December, 2000, these two leaders and their family members were forced to board an airplane and were deported to Saudi Arabia. Since then, it is claimed by officials and ministers of the ruling party, there has been some sort of an agreement between the Sharif family and the government that they would be granted amnesty if they remained in exile for a period of 10 years. This agreement has not been made public by the Sharif family or by the ruling party or government.
It is settled law in Pakistan that any contract which is against public policy or infringes fundamental rights as enshrined in the Constitution is a void agreement and not enforceable. According to Article 15 of the Constitution, every citizen enjoys the right to remain in Pakistan and to enter and to move freely throughout the country, to reside and settle in any part thereof subject to any reasonable restriction imposed by law in the public interest. The agreement therefore cannot be termed a law enacted in the public interest. It appears that the Supreme Court may not uphold the legal sanctity of such an agreement.
In March 2004 an attempt was made by Shahbaz Sharif to return to Pakistan. He filed a petition with the Supreme Court at Islamabad challenging his exclusion from Pakistan. From the government side, it was pleaded that under Article 184(3) of the Constitution the petition did not involve a question of public importance with reference to enforcement of fundamental rights; that the petitioner could not rely on press statements for the enforcement of his fundamental rights and that a petition does not lie on mere apprehension.
The petition was dismissed on the plea that "mere fact that a question of arrest or detention of an important person is involved, this by itself is not enough to invoke clause (3) of Article 184."
At the same time, it was further observed by the Supreme Court that neither the federal nor the provincial government had disputed the right of the petitioner, being a citizen of Pakistan, to come back to his country. Unfortunately, when Shahbaz Sharif returned to Pakistan, he was apprehended at the Lahore Airport, detained for several hours and once again deported to Saudi Arabia.
This act of the government proved that it obtained an order from the Supreme Court on the basis of a false and incorrect statement. Neither the petitioner nor the Supreme Court took notice of this incident whereby a fraud was played upon the Supreme Court. The petition was disposed off by a short order and at the time of exclusion of Shahbaz Sharif in 2004, the detailed judgment was not announced. The Supreme Court at that time had an opportunity to reopen the case but no effort was made on the part of the petitioner.
The rule laid down in the case of Shahbaz Sharif will be a weapon in the hands of government lawyers who are likely to plead the doctrine of res judicata -- that the matter was already decided. However, there are several questions that were not considered earlier and may be revisited by the courts while hearing these two petitions.
The success of the PML-N in the forthcoming elections is very much dependent on the outcome of these two petitions, as in the absence of their leaders they will not be able to gain momentum. The last civilian government, overthrown by General Pervez Musharraf, was that of Nawaz Sharif, who during the last eight years has gained a great deal of sympathy from the public and political activists.
When General Zia-ul-Haq died in an airplane crash and elections were conducted in 1988, the Supreme Court was flooded with petitions involving election rules. Once again the Superior Courts in Pakistan will encounter a similar situation, but this time the public is much more hopeful that the rule laid down by the Superior Courts would strengthen the roots of democracy in Pakistan. Let us wait and see.
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(Rasheed A. Razvi is a lawyer who served as a judge in the Sindh High Court until 2000, when he declined to renew his oath. He has served as president of the Karachi Bar Association and vice chairman of the Sindh Bar Council. He is a member of the Executive Committee of the Pakistan Bar Council and was elected its vice chairman in 2002. ©Copyright Rasheed A. Razvi.)
