THE NATIVES' RIGHT TO RETURN
With the controversial and much awaited general elections drawing nearer, three political exiles—Benazir Bhutto, Nawaz Sharif and Shahbaz Sharif—are seeking to return to
While Benazir is trying to re-enter the country and the political arena through the back door by making a political deal with the General, the Sharif brothers have knocked at the doors of the judiciary to come in defiantly through the front door, even though it may mean breaking their alleged deal with the General. The disparity in the manner in which Benazir and the Sharif brothers are seeking to return is commensurate with the difference in the status of their exile. While Benazir lives abroad in a self-imposed exile to avoid prosecution for corruption as much as political persecution, the Sharif brothers were deported from the country by way of punishment, ironically for preventing General Musharraf from returning to Pakistan in 1999. Whatever the reason for living in external exile, Benazir and the Sharif brothers are anxious to return for of the impending elections but are not being allowed to do so by an explicit threat of imprisonment.
Nawaz Sharif has filed a petition before the Supreme Court of Pakistan for his and Shahbaz Sharif's return, where the matter is pending adjudication before an especially constituted seven-member bench. This is not the first time that the Sharif brothers have approached the Court. Shahbaz Sharif had petitioned the Supreme Court as early as 2003 (Constitution Petition Number 55 of 2003) in which he had expressly stated that "in December 2000, while the petitioner was in custody, he was forced to board an airplane along with his other family members and was deported to Saudi Arabia. … It is alleged that Government of Pakistan to date continues to insist that some sort of a deal exists under which the petitioner and his family members opted to live in exile, but the same is denied by him with assertion that no such document supporting such deal has ever been produced by the government."
In a strange twist of fate, Shahbaz Sharif had been represented in this case by Malik Muhammad Qayyum, the present Attorney General, who had contended: "The petitioner, being a citizen of
In rendering its judgment in that matter, the Supreme Court noted that "neither in the comments nor during the course of arguments the Federal Government/ Government of Punjab has disputed the right of the petitioner being a citizen of Pakistan to come back to the country nor referred nor brought on record any agreement/document permitting the government to force the petitioner to live in exile." However, in considering the relief sought by Shahbaz Sharif, the Supreme Court observed that "the petitioner in Const. Petition No.55/2003 has not raised any question of public importance. It appears that he left the country on his own and nothing material has been brought on record to substantiate the assertion that he was forced to live in exile. The petitioner has prayed for a relief, which, in fact, always remained available to him and he himself was solely responsible for not availing it earlier. Const. Petition No. 55 of 2003 is not maintainable." The petition was accordingly dismissed but it was made clear that it was the inherent and fundamental right of Shahbaz Sharif to return to his country and that this right had not been taken away by an alleged deal with the Government.
Indeed, every citizen has the right to remain in, enter and move freely throughout the country and to reside and settle in any part thereof. Article 15 of the Pakistan Constitution guarantees this fundamental right. Whereas the right to remain in the country is an absolute right, the right to enter and move freely is subject to any reasonable restriction that may be imposed by law in the public interest. No reasonable restrictions have been imposed on the Sharif brothers by law in the public interest. Any restrictions imposed on the Sharif brothers through an alleged deal made at the behest of and to protect the interests of a military usurper cannot be equated with legal restrictions that may be imposed in the public interest.
The fundamental right granted by Article 15 of the Pakistan Constitution is backed by international norms. Article 9 of the Universal Declaration of Human Rights declares: "No one shall be subjected to arbitrary arrest, detention or exile." Furthermore, Article 13 states: "Everyone has the right to leave any country, including his own, and to return to his country." The Human Rights Declaration itself draws its inspiration in this regard from the Magna Carta, which, as early as 1215, proclaimed: "No … man shall be outlawed or exiled … except by the lawful judgment of his equals or by the law of the land". Although the Human Rights Declaration is not a legally binding treaty, its provisions are considered customary international law and binding, as such, on all member states of the United Nations and therefore on Pakistan.
Although the International Covenant on Civil and Political Rights (ICCPR), the treaty that gives legal force to many of the rights proclaimed in the Human Rights Declaration, does not expressly prohibit exile, it codifies the right to return. It states in Article 12(4) "No one shall be arbitrarily deprived of the right to enter his own country." The substance of Article 12(4) implicitly prohibits forcible exile, since an order that would force a person to leave his country would in effect restrict his return to the country and therefore would be in violation of this Article.
It is evident that both national and international law forbid forcible exile. For whatever reason, a Government cannot force individuals to leave their own country or prohibit their return. The international community has repeatedly called for the recognition of the right of the forcibly exiled to return to their country. International law grants individuals the right to return to their own country, and thereby provides an effective remedy to those in exile.
Notwithstanding national and international efforts to outlaw political exile, the practice persists in authoritarian and politically under-developed societies as an undesirable legacy of ancient times. Even though some trace the practice of exile to biblical times when Adam and Eve were banished from the Garden of Eden as punishment for not following divine dictates, the Greeks are known to have initiated this practice in
The Supreme Court has allowed the Government until the 23rd of this month to produce the alleged deal with the Sharif brothers. The nation watches with interest to see whether the Attorney General, who in a different role had advocated the Sharif brothers right to return to Pakistan, is now able to conjure up a deal, with the help of General Musharraf's cohorts, in a vain attempt to save the day. The General's loyalists may however better serve their leader by reminding him of the age-old adage that one reaps what one sows: having exiled the Sharif brothers, the General is likely to suffer the same fate and end up in Saudi Arabia himself and, like Idi Amin and other dictators before him, spend his remaining days in ignominy and isolation. Allowing the return of the Sharif brothers and holding free, fair and transparent elections may be his only chance to mitigate the harshness of the fate that, in all likelihood, awaits him.
Ó The author, an international lawyer based in
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