Misdirection

Published: November 21, 2019
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Nawaz in London: PHOTO: EXPRESS

Nawaz in London: PHOTO: EXPRESS

Nawaz in London: PHOTO: EXPRESS The writer is a lawyer based in Lahore and also teaches at the Lahore University of Management Sciences. He holds an LL M from New York University where he was a Hauser Global Scholar. He tweets @HNiaziii

A large segment of PTI supporters are rather red in the face with fury after the Lahore High Court (LHC) decided to allow Nawaz Sharif to go abroad for medical treatment. These citizens of our country are outraged that the justice system operates in different ways for different groups of people.

“Is this the rule of law?” They ask after a sharp intake of breath. Well, no, if the rule of law means that everyone is to be given equal treatment under the law. But if you look at a branch of legal philosophy known as “legal realism” then you might be able to make sense of the entire situation.

Legal realism states — if I may be allowed to give a reductivist view of it for the sake of brevity — that the courts are just as political as regular political parties and it is ridiculous to think they live in ivory towers isolated from the pulse of the nation. In short, the court system also wants to be seen as legitimate, it also wants to avoid unpopular decisions, and it also wants to shy away from being at the heart of unpopular narratives.

Because of these factors, it was unlikely that the LHC would take the entire burden of Nawaz Sharif’s health on its shoulders and force him to remain in the country. This is after all the leader of one of the biggest political parties in Pakistan. The decision they gave seems to be the safest one that could be given. Especially in light of how the federal government’s condition of an indemnity bond from Nawaz Sharif was misdirection at best. That condition showed the federal government’s intent that they wanted Nawaz Sharif to be able to leave.

How? Well, first you have to understand that the entire Exit Control List (ECL) fiasco involved the institutions of this country playing “hot potato” with each other. Nobody wanted to take the risk of forcing Nawaz Sharif to stay in the country, because if God forbid, something happened to him they’d have to deal with the consequences. But neither did anyone want to take the blame for letting him go unconditionally.

So, everyone started crafting their own narrative. The establishment played in the background, as always, while the PTI told the people that Nawaz Sharif was being allowed to leave for humanitarian reasons. However, he had to give an indemnity bond of Rs7 billion. The spin that the PTI gave was that even if Nawaz didn’t return, this would mean Rs7 billion would somehow magically appear in the government’s treasury. It made the PTI look both humanitarian and crafty.

However, the indemnity bond was good old misdirection. It has little legal value and did not mean that Nawaz’s failure to return would result in a sudden shower of cash for the government. This is because the executive cannot, under the law of Pakistan, take any action without having some backing for it in law. Therefore, a Rs7 billion indemnity as a condition for removing someone’s name from the ECL has to be found in a law. No such provision exists in the law that regulates the ECL.

The removal of a name from the ECL is regulated by the Exit from Pakistan Control Ordinance, 1981 read with the Exit from Pakistan Control Rules, 2010. Neither of these enactments allows the federal government to ask for an indemnity bond before taking someone’s name off the ECL. This would mean that by imposing such a condition the federal government would be acting “ultra vires” — a legal term that means “beyond its authority”, allowing a court to strike down any such action.

Furthermore, as a matter of practice, I don’t understand why the government even needed an indemnity bond in the first place when they already have Nawaz Sharif’s bail bonds. The entire point of having bail bonds is to have some surety in case someone on bail disappears. An indemnity, on the other hand, is a contractual remedy under the law and is accompanied by some form of security. For example, let’s say you hire someone to fix the plumbing of your house and they manage to wreck the furniture. Then, you could use the security given in the contract to ask the service provider to indemnify you for the damage.

How was this supposed to apply in Nawaz Sharif’s scenario? Nawaz Sharif was giving no security; he was not even depositing Rs7 billion in a bank. So, this entire indemnity bond narrative was misdirection by the PTI. They were always going to allow Nawaz Sharif to leave. They were just trying to make it look like they were creating some consequences if he didn’t come back.

When the PML-N legal team went to court they were never going to have a hard time convincing the judges that the indemnity requirement was absurd. With the PTI having thrown all responsibility on the judiciary through misdirection, the actual decision should not surprise us.

This case had little to do with law. The PTI needs to stop trying to make fools out of the people by pretending that they were putting up a massive resistance to Nawaz Sharif leaving. Neither can they solely blame the courts for allowing Nawaz Sharif to leave. The federal government put up a weak case before the court while also trying to put the entire burden of this issue on them. A legal realist would ask: what did they expect would happen?

For over a year, we have seen the drama of PTI versus Nawaz Sharif unfold. This has happened at the cost of the federal government getting anything of substance done. With Parliament deadlocked, the PTI must understand that it is in their best interest to extend an olive branch to the opposition. Otherwise it cannot move forward and confront the broader issues plaguing the country. They can rest assured that Nawaz Sharif is disqualified for life, his cases are ongoing, and he has been found guilty by a court of law. The PTI has made its point about corruption. If Nawaz Sharif does not return then he loses face.

It is time to work together for the sake of this nation.

Published in The Express Tribune, November 21st, 2019.

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