Apex court notes anti-graft watchdog is seen as tool of ‘political engineering’ and slams practice of pre-conviction detention
A two-member bench of the Supreme Court of Pakistan on Monday issued its detailed verdict on a bail petition filed by Pakistan Muslim League (Nawaz) leaders Khawaja Saad Rafique and Khawaja Salman Rafique in the Paragon Housing Society case, noting the National Accountability Bureau (NAB)’s image had been tarnished by the belief that it was being used for political engineering.
The 87-page verdict, penned by Justice Maqbool Baqar, slammed the prosecution’s conduct throughout the proceedings. “The whole episode … is a clear manifestation of their scant regard for the mandate of the law and the principles of fairness, equity and propriety,” it read.
Summarizing the history of Pakistan’s accountability laws, the judgment noted that the NAB Ordinance, promulgated by Gen. Pervez Musharraf in 1999, had been “increasingly controversial” from its inception. It noted that it was frequently alleged that NAB employed as a tool of oppression being “used for political engineering,” and that the bureau’s discriminatory approach was destroying its image and raising questions over its credibility and impartiality.
“The bureau seems reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandates investigations to be concluded expeditiously and trial to be concluded within 30 days,” read Justice Baqar’s verdict, adding that while acting against corruption was a noble cause, “the means, process and mechanism employed therefor should be within the parameters as prescribed and mandated by the law.”
He said that despite the law being clear, NAB’s investigations often spanned months if not years. “It is because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases is abysmally low. The above is certainly not serving the national interest, rather causing irretrievable harm to the country, nation and society in multiple ways,” he said, adding that NAB’s “highhandedness and brazen disregard for human dignity” had also damaged Pakistan’s image abroad with the European Commission highlighting NAB’s partisan conduct.
“It is the duty and obligation of the State to ensure that the Constitution reigns supreme and the rule of law is all pervading so as to create an environment conducive to the expression of diverse ideas. The State is obliged to ensure that every citizen is treated equally and that his life, dignity, honor and property is fully secured,” it read, adding that the power of arrest should not be deployed as a tool of oppression and harassment. “There must be sufficient incriminating material to justify deprivation of liberty,” it stressed.
Similarly, read Justice Baqar’s judgment, the fundamental principle of criminal jurisprudence that a person is presumed innocent until proven guilty should not be ignored. “This principle stems from a general rule that burden of proof in a criminal case is on the prosecution to establish the guilt of an accused beyond reasonable doubt. The justification for the above principle is that the outcome a wrongful conviction is far worse than that of a wrongful acquittal,” it added.
Noting that the only fundamental, unconditional and inviolable right in the 1973 Constitution was the dignity of man, the court said that pre-arrest confinement resulted in humiliation and disgrace for not only the accused but also their family and persons attached to them. “In today’s age of a robust print and electronic media, arresting an accused and leveling allegations against him gives rise to a vicious campaign of whispers and murmurs where the accused and his family are subjected to humiliation, embarrassment, and agony. It, thus, irrevocably jeopardizes a person’s dignity, subjecting him to physical and psychological repercussions concomitant with life in prison,” it said, adding that people often do not differentiate between arrest before conviction and that after conviction.
Referring to the matter of bail, the court highlighted its definition and purpose. “The object of bail is to secure the attendance of the accused at the trial. The object is neither punitive nor preventive. Imprisonment of a person and deprivation of his liberty, cannot be described other than, being a punishment, unless no less restrictive alternative is available to ensure that the accused will stand his trial when called upon to do so,” it added.
“The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty,” it said, noting that while necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance, it had to be proven that this was a “necessity.”
“People wielding power should not lose sight of the fact that the constitutionally guaranteed rights have been obtained and secured by the people of this country through a social contract in the shape of the Constitution,” it said, adding that it is contrary to the concept of personal liberty to detain any person merely on the belief that they might tamper with witnesses, “save in the most extraordinary circumstances.”
Justice Baqar further underlined that “all civilized societies recognize the principle that punishment comes only after conviction, and the presumption of innocence subsist with the accused, till he is handed down punishment after trial.”
The judgment said it was unfortunate that the ideals of the Constitution had yet to be fully realized in Pakistan despite the passage of 47 years since its adoption. “To the contrary, we have even failed to adhere to some of its most basic commands and prescriptions. The people of this country are frequently denied their constitutionally guaranteed rights. Principles of equality, fairness, tolerance and respect for democratic norms are flouted with impunity,” it said.
“Dogmatism, intolerance, nepotism, cronyism, incompetence, regression, deception, false pretense, self-projection, misplaced sense of superiority, different biases, and prejudices, and corruption have seeped into our society and have now inundated it,” it read, adding that efforts for the supremacy of the Constitution and the rule of law “have been thwarted with full force.”
Justice Baqar’s ruling slammed the “lust of power, desire to capture, and rule, and pursuit of self-aggrandization” that had resulted in violation of the prescribed jurisdictional limits and ceding of political space in governance.
The ruling underlined that despite having all the required information and details, NAB had failed to provide any material to prove that “the exchange was unfair and/or that the petitioners have through the said transaction illegally enriched themselves at the cost of the company.” It said that the transaction appeared to between “private individuals/entities, who were free agents, and has/had no bearing on any public or governmental interest.”
“The whole episode lays bare the prosecution’s conduct and is a clear manifestation of their scant regard for the mandate of the law and the principles of fairness, equity and propriety,” it added.
“Our salvation, thus, lies not in suppressing ideas we disagree with but in demanding freedom of thought, conscience, and expression for those whom we most vociferously disagree with. Until we create a culture of transparency, liberty, civility, and democratic values, our desire for peace and order shall continue to elude us,” it concluded.