IHC’s relief-giving spree continues

ISLAMABAD: The landmark judgments, telling remarks and observations, repeatedly made by the Islamabad High Court (IHC) especially Chief Justice Athar Minallah in the last two weeks, spurning the resolve of the National Accountability Bureau (NAB) to keep the accused behind bars without proving them guilty, have apparently fallen on deaf ears.

The IHC delivered a historic verdict, specifying the parameters for exercise of authority by the NAB, spelling out safeguards against excessive and arbitrary exercise of power to detain a person. However, it has not made the NAB budge even an inch from its policy of incarcerating those who are to be targeted in any case.

Five days after this judgment handed on March 7, the NAB arrested Jang/Geo Group Editor-in-Chief Mir Shakil-ur-Rahman at the stage of verification of a complaint relating to a private property transaction dating back to 1986, when the anti-graft agency had not even existed. This happened for the first time in the NAB history that an accused was taken into custody during this phase.

The IHC has also ruled that there is no room in the National Accountability Ordinance (NAO) 1999 to form a joint investigation team (JIT), which was constituted against senior Pakistan People’s Party (PPP) leader Syed Khursheed Shah, and to file an interim reference in an accountability court.

The IHC top judge has already held that the NAB doesn’t need to arrest a person if he is appearing before its investigators and cooperating in the inquiry. If it fears that he will flee the country, his name may be put on the no-fly list.

On Thursday, Justice Minallah reiterated that an accused is presumed innocent till the time the offence he is charged with is proven against him. “You [NAB] should do good prosecution to get the accused persons awarded maximum imprisonment.”

A bench led by the chief justice was hearing the bail pleas filed by the Adiala Jail Rawalpindi Superintendent for release of inmates, put in the facility because of the NAB cases, in view of the danger of spread of COVID-19 pandemic in the facility. The NAB opposed the requests tooth and nail despite the humanitarian issue but the IHC ordered release of 24 accused.

Justice Minallah remarked that courts can’t be closed even in worst situations so that people’s fundamental rights are not affected. “Even today, Pakistan stands at number 120 at the index of the fundamental rights situation. If the NAB is determined to oppose the bails, then the court would let the detainees remain in jail where the NAB’s investigation officers should probe them. Why does the NAB want to keep the under trials in prison. Who will be responsible if the pandemic spreads among the inmates? Do you know how many prisoners have been lodged in a jail barrack? We have to take extraordinary decisions in extraordinary situation.”

Hundreds of prisoners locked in the Adiala Jail, accused of minor offences, have so far been released on the order of the IHC chief justice. This has been mainly done to avoid the inmates from being hit by the Coronavirus.

The March 7 ruling authored by Justice Minallah held that the executive power of the NAB to arrest a person under the 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 fundamental rights would be an abuse of the executive power, it said.

The judgment said the power to arrest under the NAO is not absolute, unfettered and its exercise is subject to the principles and law highlighted in the instant order. 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 recognizing inviolability of dignity; the right to liberty and freedom of movement; and the right not to be treated differently.

It said 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. 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.

The verdict said deprivation of liberty must be exercised as an exceptional option for the purposes of inquiry or investigation in relation to white collar crimes. The NAB chairman and the investigators are vested with expansive powers under the NAO, without any oversight by an independent body. The nature and expansiveness of executive powers vested in individuals inevitably raises the threshold of judicial review because constitutionally guaranteed rights are at stake. Incompetence, lack of professional expertise and proper training to deal with white collar crime, besides jeopardising constitutional rights, can have deleterious consequences for the governance system and cause harm to the economy. This makes it an even more onerous task for the NAB chairman and investigators to take extraordinary care while exercising executive powers, particularly that of arresting a person who is presumed to be innocent at the inquiry or investigation stage.

The ruling said we expect from NAB to be mindful of the consequences of excessive and arbitrary exercise of power of arrest relating to the constitutional rights, economy, governance system and foreign affairs interests. 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. 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.