Hope and despair

On the one hand, we have the Lahore High Court’s order rejecting the bail petition for Mir Shakil-ur-Rahman. And on the other we saw a detailed judgment come out of the Islamabad High Court a few weeks back (Abdul Samad vs NAB) elucidating limits on the NAB chairman’s power of arrest and the rights of suspects at inquiry and trial stages.

Do our constitutional courts decide cases on the basis of the same rulebook? Are judges vested with such wide discretion that they can pass diametrically opposite orders even in cases where the underlying questions of law are the same?

MSR was arrested on the suspicion that authorities stretched a governmental policy to grant him some favour 34 years back. (In a nutshell, that the LDA exempted from acquisition land owned by private citizens who had given MSR their power of attorney, which land MSR subsequently purchased and that non-acquisition of said land was an undue favour ultimately benefiting MSR.) NAB arrested him at the complaint verification stage claiming that the chairman of NAB had ordered an inquiry against him and justified the arrest claiming that he would abscond or influence the inquiry if not arrested.

The question before the LHC was whether MSR had a right to remain free of arrest pending NAB’s inquiry and to build a case to prosecute him for allegedly procuring undue favors from public officials. But this precise question the court didn’t address. The order presents a grim picture of rights supposedly guaranteed by our constitution. But it is consistent with case law on bail matters more generally, which is inchoate, devoid of logical reasoning and hardly inviting suspicion of being the work product of paragons zealously guarding against abuse of state power by the executive.

The court doesn’t ask how the accused could possibly influence the inquiry into a white-collar crime that allegedly transpired 34 years back, and wherein reliance would almost entirely be on documentary evidence that is in the state’s possession. The court also doesn’t ask why MSR’s name can’t be placed on the ECL to obviate any flight risk as opposed to arresting him. It merely says that based on records produced by NAB in this ongoing inquiry, it appeared that the Punjab government’s policy was stretched in MSR’s favour and so it is okay to keep him locked up.

Was the IHC interpreting a different constitution in Abdul Samad? It held that, “the right of liberty, being a sacred shield against abuse of statutory power vested in executive authority must be jealously guarded as the duty of a constitutional court”; that the right to be presumed innocent is the foundation of the right to fair trial; that an accused is to be presumed innocent during inquiry and investigation under NAB law, notwithstanding reversal of the onus of proof, and such presumption remains in place till guilt is established at the end of the trial.

The IHC cited Manzoor (PLD 1972 SC 81) where the SC held that there was no moral or legal compulsion to keep suspects locked as they could be jailed after conviction to serve sentences, but the harm inflicted on someone jailed on mere suspicion but later found innocent couldn’t be undone. It relied on Sughran Bibi (PLD 2018 SC 595) to hold that an FIR wasn’t sufficient basis for arrest and that there must be sufficient incriminating material together with the likelihood of the suspect (i) absconding; (ii) repeating the offence; or (iii) harming others etc, to deprive him of his liberty.

The IHC held that power to arrest is vested in state functionaries as fiduciaries to be exercised in a fair and reasonable manner. That everyone has the right to liberty (Art 9), dignity (Art 14), equality (Art 25), and to be treated in accordance with law (Art 4). That the constitution protects against arbitrary arrest and deprivation of liberty is only justifiable in accordance with principles of proportionality, reasonableness and necessity. The IHC poignantly noted that if white-collar crimes can’t be investigated without arresting suspects, “it raises serious questions regarding competence and professionalism of the investigation.”

Courts define the conditions under which a state may use coercive force against its citizens. This regulates the relationship between citizens and the state. The work of jurist Ronald Dworkin is helpful in understanding what judges do and what they ought to do. A judge’s basic function is interpretive. In cases where there isn’t a clear rule determining right or wrong, a judge must find answers based on principles enunciated by the law and constitution, says Dworkin. But he acknowledges that positions people hold dear – thinking of them as principled - can often be skewed, resulting in their acceptance of crimes.

Dworkin argues that there is always a right answer to a legal question that an ideal judge (he calls him Hercules) can discover if he performs his interpretive duty with integrity. He acknowledges that hard cases confront judges with legal-moral dilemmas. But claims there is a right answer that can still be found by taking a moral view of the constitution. If Judge Hercules were functioning in Pakistan, the moral dilemma he would face would be a more basic one: whether to side with the state and its overbearing ways out of necessity (or habit) or to act as a shield to protect the citizen from it.

Due to this dilemma and the systematic entrenchment of morally indefensible positions by our justice system in the name of precedent, Judge Hercules might not be a helpful guide to predict court outcomes in Pakistan. Malcolm Gladwell’s thesis in ‘Blink’ might be more apt. ‘Blink’ and ‘Talking to Strangers’ highlights how prejudice, first impressions and intuitive judgments can spell disaster. Our criminal justice system is a good case study for analyzing decisions regarding people’s lives and rights springing out of whims, intuition and guesswork and its consequences for rule of law as a whole.

When Manzoor was decided in 1972, the SC judges who decided it didn’t discover some unique jurisprudential principle. They stated what was obvious even then: don’t lock up under trial prisoners because if they are later found innocent, the harm inflicted on them by the state would be irreparable. What part of this argument is lost upon honourable judges who refuse bail applications on a daily basis, mostly cognizant of the fact that the state isn’t worried about flight risk or harm to society while ordering arrests, but is using arrest and detention during trial as the mode of punishment to be inflicted on those who fall out of its favour.

This is punishment without trial. Our current practice of arrest at the whim of power-wielders, filling up jails with under-trial prisoners and letting them go eventually with no conviction or consequence for those ordering their arrests is the antithesis of rule of law and accountability. When Shahid Khaqan Abbasi or Miftah Ismail or Ahsan Iqbal were arrested, everyone knew that the arrest and indignation were the ultimate punishment. Ahad Cheema was arrested two years back and remains in jail without conviction. MSR has been in a lockup for a month. This is what persecution looks like.

Is there real confusion in Pakistan over what is right and what is wrong based on ambiguous language of law leading to contradictory judicial outcomes? Or is it a question of our collective sense of principles being so skewed that we have lost our ability to tell right from wrong? Or worst, is disregarding what is right an outcome of our sense of self-preservation based on a realistic reading of the ‘system’ wherein power and its arbitrary demands trump justice and fairness? While Judge Hercules might not help us predict outcomes, he can certainly help us judge them.

So is the LHC’s order in MSR's case the correct moral reading of our constitution or is the IHC’s ruling in Abdul Samad the correct one? This is not a hard question. Let us consider asking a hypothetical one instead. When decades have gone by, which of the two cases will be remembered and cited with approval as the correct enunciation of fundamental rights and the courts’ role in protecting them?

We have had our Munirs and we have had our Dorab Patels and Hamood-ur-Rehmans. We remember them all but for very different reasons. As a judge you can be a beacon of hope or be the despair of justice. But you can’t be a Munir and then expect history to judge you kindly.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu