NAB’s first flagrant violation of IHC verdict

ISLAMABAD: Mir Shakil-ur-Rahman’s arrest by NAB is the first flagrant violation of the Islamabad High Court (IHC) decision in which it has held that the executive power to arrest a person under the National Accountability Ordinance (NAO) cannot be exercised unnecessarily or for conducting roving inquiries.

“If an accused is cooperating in the inquiry or investigation and appropriate measures have been taken

to ensure his attendance, then in such an eventuality restriction on constitutional rights would be an abuse of the executive power,” the verdict, authored by IHC Chief Justice Athar Minallah as head of the two-judge bench, including Miangul Hassan Aurganzeb, ruled last week.

The Editor-in-Chief of Jang Group was arrested by the NAB on Thursday during his appearance before the Bureau’s Lahore office in response to a call up notice issued to Mir Shakil-ur-Rahman. Despite finding the case against him flawed and flimsy, Mir Shakil-ur-Rahman joined the NAB probe and appeared twice during this month.

This arrest has been made within a week of the IHC judgment which exhaustively deals with the powers of arrest of the NAB chairman, lays down parameters for exercise of this authority and spells out safeguards against excessive and arbitrary exercise of power to detain a person. The detailed ruling was handed down while accepting the bails of two officials of the Pakistan Telecommunication Authority (PTA).

The judgment said that the power to arrest under the NAO is not absolute, unfettered and its exercise is subject to the principles and law highlighted in the order. It added that rights that could be affected by arresting an accused under the NAO include: the right to be presumed innocent; the right to be treated in accordance with Article 14 by recognising inviolability of dignity; the right to liberty and freedom of movement; and the right not to be treated differently.

In the absence of lawful authority, to justify intrusions into constitutionally guaranteed rights, the detention or incarceration would become ‘false imprisonment’, which has evolved in the law of Tort for the protection of liberty and against abuse of executive power, the judgment said.

It said, it is thus an obligation of the person directing the arrest to discharge the onus by demonstrably justifying that there were no other less restrictive means for the purposes of conducting effective inquiry or investigation. Deprivation of liberty must be exercised as an exceptional option for the purposes of inquiry or investigation in relation to white collar crimes.

The IHC ruled that the power to arrest under Section 24 read with Section 18(e) of the NAO is definitely not unfettered, absolute or allowed to be exercised without being adequately justified on the touchstone of the principles and law highlighted in the judgment. The verdict said that the corrupt must fear the NAB while the innocent and honest repose confidence that they would not be wronged and be dealt with fairly. Arbitrary and indiscriminate exercise of power to arrest is in itself abuse of authority having deleterious consequences as discussed above.

It is the duty of authorities vested with powers under the NAO to treat an accused fairly during the course of inquiry or investigation because the latter is presumed to be innocent, the verdict said, adding that no accused must feel that the powers are being exercised indiscriminately. Equal treatment of all similarly placed accused should be demonstrably reflected from the manner in which statutory powers are being exercised.

The judgment said that the power to order the arrest of an accused must not be exercised in an indiscriminate and arbitrary manner giving rise to complaints that some are treated less favourably than others. The actions ought to show, unambiguously, that the executive discretion of ordering the arrest is exercised in each case uniformly and without discrimination.

The NAB clearly said that an arbitrary, indiscriminate and reckless exercise of the executive power to arrest during an inquiry or investigation under the NAO would be in violation of the constitutionally guaranteed right and the explicit recognition that human dignity is inviolable. Arresting a person in an alleged white collar crime by exercising the executive power in a mechanical and arbitrary manner, or unnecessarily, has serious consequences. It can cause irreversible damage to the reputation of a person. The social stigma attached with being arrested for an offence under the NAO can have devastating implications and massive human impact, not only for that person but for his family members as well.

The court said that presenting suspects as though they are guilty exacerbates the humiliation which is already suffered because of the arrest. Such treatment and interference with liberty definitely amounts to infringement of the inherent dignity of a human and thus is a serious violation of inviolability of dignity guaranteed under Article 14. A suspect cannot be exposed to humiliation unnecessarily as a result of exercising powers excessively or arbitrarily. Article 14(2) is a constitutional assurance to every person not to be subjected to torture for the purposes of extracting evidence. This is most relevant in the context of the expansive powers vested in NAB and its chairman, particularly its distinct features relating to the acceptance of plea bargain or the power to allow an accused to become a witness against others. Abuse of the intrusive power of arrest or the threat thereof can have serious implications regarding the right under Article 14.