Saad Rasool |
Over the past few months, PML(N) spin-machine had been creating a (public) narrative concerning the ailing health of Nawaz Sharif, and the necessity of allowing him to proceed abroad for medical treatment. This is not the first time that PML(N) leaders have expressed concerns about Nawaz Sharif’s health – such voices have emerged whenever Nawaz Sharif has been asked to explain his wealth or has been summoned by NAB or some JIT. But this narrative reached feverish pitch after February when the honorable Islamabad High Court (IHC) rejected Nawaz’s bail on medical grounds.
In this backdrop, the honorable Supreme Court was petitioned to hear Nawaz Sharif’s appeal against dismissal of bail. Leading up to the Apex Court’s hearing, PML(N) leaders had created the following narrative: 1) Nawaz Sharif was so unwell, in jail, that his life was at risk; 2) He had been maltreated by the Punjab government, which had shipped him from one hospital to another, without providing proper medical treatment; 3) Nawaz Sharif could only (properly) be treated by his doctors in London; 4) PML(N) could not trust Nawaz Sharif’s health with any medical facility or doctor in Pakistan; and 5) Nawaz Sharif had refused to accept any medical treatment, till he was released on bail and allowed to proceed abroad.
This prayer – of granting bail for a “limited period” – was deemed “reasonable” by the honourable Court, in light of Nawaz Sharif’s medical reports and history, and thus resulted in granted of bail.
After hearing arguments from both sides, on Tuesday this past week, a three-member bench of the honorable Supreme Court “suspended” the jail sentence of Nawaz Sharif, and admitting him to bail “for a period of six weeks”.
This order of the honorable Court has been received with tempered celebration, as well as criticism, across the politico-legal divide. On the one hand, while PML(N) is celebrating the release of its leader, this celebration is subdued because of the 6-week cap on the bail, and a prohibition on him traveling abroad. On the other hand, those who fear that some ‘deal’ is afoot, are lamenting the bail of Nawaz Sharif as the first step of a larger NRO.
And so it is pertinent to ask, from a legal perspective, whether the Supreme Court has extended some undue relief to the former premier? Or, instead, is the order based on sound legal principles and precedent? Does the six-week cap on this bail really mean that Nawaz Sharif will have to return to jail at the expiry of it? Or has the honorable Court left enough space in the order for Nawaz Sharif to get away? Can his bail be extended by the honorable High Court, as some analysts have been arguing? Or is there no space for such manoeuvrability?
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In order to answer some of these questions, it is important to take a deeper look into the order of the honourable Court. To this end, it is important to point out that the honourable Court’s order skips over the precise arguments presented by Nawaz Sharif’s counsel, in support of getting bail on medical grounds.
The order only states that “after addressing elaborate arguments in support of petitioner’s prayer for bail”, the counsel for Nawaz Sharif prayed (read: settled for) grant of bail for a “period up to eight weeks so as to provide him an opportunity of proper medical treatment of his choice and upon expiry of the requisite period the petitioner shall voluntarily surrender to custody regarding which the learned counsel for the petitioner has undertaken on behalf of the petitioner.” This prayer – of granting bail for a “limited period” – was deemed “reasonable” by the honourable Court, in light of Nawaz Sharif’s medical reports and history, and thus resulted in granted of bail.
Has some concession been granted to Nawaz Sharif? Yes, he was granted bail, even though his medical reports were no worse than most patients suffering from similar ailments in jail.
Specifically, the order of the court makes it “clear that during this period the petitioner shall not leave or be allowed to leave the country”. Inclusion of the words “or be allowed to leave” is directed at governmental authority (i.e. Interior Ministry) or subordinate court (i.e. the High Court), so as to entirely rule out the possibility of Nawaz Sharif leaving the country.
Furthermore, the honourable Court’s order specifies that the bail “shall automatically stand cancelled upon expiry of six weeks”, after which Nawaz Sharif must “surrender to custody voluntarily failing which he shall be retaken into custody.” And for those who may have through that, at the expiry of the six-week period, Nawaz Sharif can simply file a bail application before the honourable High Courts (and claim that he has “surrendered” before authorities), the honourable Court’s order clarifies that “surrender to custody by the petitioner shall not include surrendering before a court with an application for bail”. Importantly, during this time, Nawaz Sharif is permitted to “get himself medically treated from medical practitioners and medical facilities of his choice in Pakistan.”
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In these circumstances, there seems to be no (legal) way for Nawaz Sharif to avoid prison, at the conclusion of the six-week period. All those who claim that the honourable Court’s order leaves some space for Nawaz Sharif to avoid going back to jail, need to take the time to read the honourable Court’s order carefully.
Has some concession been granted to Nawaz Sharif? Yes, he was granted bail, even though his medical reports were no worse than most patients suffering from similar ailments in jail. Is this concession permanent in nature? Absolutely not. There seems to be no real space for manoeuvrability in the honourable Court’s language or intent.
In the immediate aftermath of the order, some analysts (on the electronic and social media) claimed that the IHC has been given the authority to release Nawaz Sharif, at the conclusion of this six-week period. That, however, is not what the Supreme Court declares.
Of course, at some point in time, the honourable Court will have to clarify whether “mental stress” and “anguish”, of a prisoner, is grounds for bail. But for now, let us focus on the wisdom of the Court’s order.
Specifically, the last para of the honourable Court’s order states that “if during that period of six weeks”, Nawaz Sharif’s appeals (against NAB convictions) are “finally decided” by the IHC, then “custody of the petitioner shall thereafter be regulated” by the said order. In other words, if the IHC hears the appeals and acquits Nawaz Sharif during these six weeks, he may be released in accordance with law.
And the chances of the honourable IHC hearing the detailed appeals on merit, after appraisal of all relevant evidence, and rendering its final decision in favour of Nawaz Sharif, within six weeks, are next to none.
As such, the order of the honourable Court extends a (compassionate) concession to Nawaz Sharif, who had otherwise decided to take a path of belligerence by not availing any medical treatment. However, he cannot leave the country and must return to jail after getting treatment of his choice in Pakistan.
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Interestingly, ‘getting treatment of choice in Pakistan’, is exactly what the government had offered to Nawaz Sharif prior to the honourable Supreme Court’s orders. At the time, however, such an arrangement was not acceptable to the Sharif family. Earlier, Sharif family did not want to settle for anything other than being allowed to go abroad. And yet, in the courtroom, the counsel for Nawaz Sharif relented on the demand of traveling abroad, and claimed that Nawaz Sharif would be satisfied if he is allowed to get treatment in Pakistan.
As reported in the media, his counsel also yielded on the issue of Nawaz Sharif not having confidence in the doctors and medical facilities in Pakistan, and only insisted that he be allowed bail to get his medical treatment in Pakistan “without mental stress”. Why did Nawaz’s lawyers recapitulate on the earlier (legal and political) stance? This question remains unanswered.
The honourable Court, while allowing temporary relief to Nawaz Sharif, has gotten him (through his counsel) to accept that he can be treated in Pakistan, that he is not desirous of going abroad.
The ground of “mental stress” (wisely) finds no mention in the order of the honourable Court. However, as reported widely, when all other medico-legal arguments failed, this was the final argument advanced by Nawaz’s counsels, in an attempt to find some favour with the Court. And since then, this idea of granting bail to a convict, on the basis that his “mental anguish” in jail is affecting his existing medical conditions has been widely criticized in our national narrative.
Of course, at some point in time, the honourable Court will have to clarify whether “mental stress” and “anguish”, of a prisoner, is grounds for bail. But for now, let us focus on the wisdom of the Court’s order.
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The honourable Court, while allowing temporary relief to Nawaz Sharif, has gotten him (through his counsel) to accept that he can be treated in Pakistan, that he is not desirous of going abroad, and that he will (voluntarily) surrender to the authorities after six weeks. And with it, the entire political narrative being created by PML(N), that Nawaz Sharif’s life is at risk and that he will settle for nothing less than going abroad, has entirely dissipated.
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at saad@post.harvard.edu, or Twitter: @Ch_SaadRasool. The article originally appeared at The Nation and has been republished with author’s permission. The Views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.