Cutting Down the Law

In the greatest passage of his celebrated play, A Man for All Seasons, Robert Bolt, uses the character of Thomas More, the English lawyer, author and statesman, to argue for the centrality of the law, over and against men, in the governance of all human affairs at a time when his family wants him to have the disloyal Richard Rich arrested:

Wife: Arrest him!
More: For what?
Wife: He's dangerous!
Roper: For all we know he's a spy!
Daughter: Father, that man's bad!
More: There's no law against that!
Roper: There is, God's law!
More: Then let God arrest him!
Wife: While you talk he's gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!


Pakistan is a country where few have shared More’s unshakable belief in the supremacy and primacy of the law. It is a country where the Constitution is often abrogated, suspended, held in abeyance or amended to suit the interests of individuals; where person-specific-legislation is passed to settle scores and benefit vested interests; where laws are enforced selectively and arbitrarily and where, like in George Orwell’s ‘Animal Farm’, “some animals are more equal than others.”

One may have thought that General Musharraf had learned a lesson following his abortive attempt to sack Chief Justice Iftikhar Chaudry and the debacle that ensued. Such a notion has been clarified resoundingly, however, by the expulsion of Nawaz Sharif from the country on 10th September 2007, contrary to the 23rd August 2007 ruling of the Supreme Court. The Economist comments, that “in banishing him nonetheless, the general has told the custodians of Pakistan’s constitution to go hang. In effect, the country is now in an undeclared state of emergency.”

Hubris, of course, knows no boundaries, defers to no limitations.

This attitude towards the Constitution, the “supreme law” and to legislation began at the outset of our identity. As early as the 1950s, Keith B. Callard, an American political scientist observed “no one is willing to die for the preservation of the Constitution in Pakistan,” (Political Forces in Pakistan, New York: Institute of Pacific Relations, 1959). An emotional attachment to the Constitution and to the concept of the due process of law is essential in ensuring their preservation.

With the banishment of Nawaz Sharif on his attempted return to Pakistan on 10th September 2007, the General and the incumbent Government has, like its predecessors, shown its myopia, arrogance and contempt for the laws of Pakistan and the sanctity of its highest Court.

By its ill-advised action, the General and the government have :(a) acted in a manner contrary to the letter and spirit of Supreme Court’s ruling that Sharif has a constitutional right to return to Pakistan (b) committed the criminal offence of “Kidnapping from Pakistan” under Section 360 of Pakistan Penal Code (c) violated Fundamental Rights accorded to Pakistani citizens under the Constitution (d) forcibly expelled a person charged with plundering our money, from the jurisdiction of Pakistan.

I use the word “banishment” rather than “deportation” as the latter can be defined, according an American case, as “the removal or the sending back of an alien to the country from which he came” (Yonejiro Nakasuji v Seager, C.C.C.A. Cal., 73 F.2d 37,39). Being a citizen of Pakistan, Nawaz Sharif, could not, in the eyes of the law, be deported.

“Banishment” was first known in England as “abjuration”, where the party accused fled to a sanctuary, confessed his crime, and took an oath to leave the kingdom and not return without permission. This was not in the nature of a punishment but rather as a condition of pardon. The practice of granting conditional pardons is sustained by the principles of common law and therefore the condition of such pardon may be banishment from the country, as in the United States (People v Potter, N.Y., 1 Parker, Cr. R. 47, 54).

Banishment here is used to connote an expulsion from the country even though “expulsion” generally means to eject, banish or cut off from the privileges of an institution or society (John B. Stevenson University v Hunt, 102 So. 637, 639, 88 Fla. 510) rather than a country.

Strictly speaking, “transportation” “extradition” and “deportation” are distinct and are used for different purposes. “Transportation” is by way of punishment of one convicted of an offence under the laws of the country while “extradition” is the surrender of a citizen to another country for him to be tried for a criminal offence and if found guilty, to be punished. Under the laws of Pakistan, a person may be extradited only to treaty state after a magisterial enquiry under Section 8 of the Extradition Act, 1972.

“Deportation”, as mentioned above, is the removing of an alien out of the country simply because his presence is deemed to be inconsistent with the public welfare. Deportation takes place without any penalty being imposed or contemplated, either under the laws of the country from where he is being deported or the laws of his own country, or under those of the country to which he is taken.

Sharif is a citizen of Pakistan and therefore has a Constitutional right to be in Pakistan. The sentences for his criminal convictions were remitted under Article 45 of the Constitution. He is not wanted in connection with any criminal cases in Saudi Arabia or any other “treaty” State and neither has an extradition request been made to this effect. Numerous cases are pending against him in Pakistan which he attempted to return and contest.

Sharif’s expulsion from Pakistan, therefore, was neither an “extradition”, “transportation”, “deportation” nor even “banishment” as used in its historical sense.

The General and the Government, through its actions of the 10th September 2007, may have done something for which there is no precedent in international law except for its own “banishment” of Shahbaz Sharif on 11th May 2004.

Section 360 of the PPC best describes the actions of the General and the government:
Whoever conveys any person beyond the limits of Pakistan without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Pakistan.
The offence of kidnapping from Pakistan under Section 360 of the PPC is a cognizable offence the punishment for is seven years imprisonment and a fine.

It is obvious that Sharif’s expulsion from Pakistan was without his consent and willingness. Statements by various Government Minister and spokesmen that he left willingly are laughable. Hearing such statements, one is reminded of Saddam Hussain’s information minister, Mohammed Saeed al-Sahaf, who, while standing less than a few miles from oncoming American tanks was describing to the world, on international television, how the Americans were being crushed by the Iraqi army.

The President, various officers of the Federal and Provincial Governments including, the Prime Minister, Interior Minister and bureaucrats have, therefore, rendered themselves liable to criminal prosecutions for the acts of the 10th September 2007.

Sharif’s banishment was also a violation of his constitutional right to freedom of movement as “guaranteed” by Article 15 of the Constitution. The same reads “Every citizen shall have the right to remain in, and subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.

Sharif’s expulsion from Pakistan was neither “a reasonable restriction” nor was it imposed by law. The Government’s argument that its action was justified in view of an alleged Agreement between it and the Sharifs is at least as thin as the paper it was allegedly written on. Is there room, in the eyes of the law, for a supra-constitutional agreement?

In the days leading to the 10th September 2007, section 144 of PPC was also misused to round up PML-N supporters.

The General and the government’s actions reek of hubris and a wanton disregard for the law, though it is in complete harmony with incidents such as the physical attack on the Supreme Court of Pakistan by Sharif’s party members in November 1998 when the PML-N was in Government.

With the laws being been cut from coast to coast, how can we expect to stand upright in the winds that are blowing?

Kamal K. Jabbar is advocate of the High Courts of Pakistan law@kamaljabbar.com -www.kamaljabbar.com