Saad Rasool |
In a gripping politico-legal drama, which would only be believable in Pakistan, Hamza Shahbaz Sharif has been able to avoid arrest (for now) by NAB authorities, during the course of investigation concerning accumulation of assets beyond known sources of income. To put this incredulous turn of events into perspective, let us review the facts as they transpired.
By way of background, NAB had initiated several inquiries and investigations against Mr. Hamza Shehbaz, who currently serves as the leader of opposition in the Punjab Assembly. While some of these (ongoing) investigations relate to specific concerns (i.e. Saaf Paani Company and Ramzan Sugar Mills), at least one investigation pertains to accumulation of assets, by Hamza Shahbaz and his family members, beyond known sources of their income.
The language of the honorable Supreme Court’s order clarifies the overarching principle that NAB can arrest any person, in accordance with law, without prior notice, so long as sufficient evidence is available to justify the same.
In this regard, when NAB summoned Hamza Shahbaz for investigation, he exercised his constitutional right to approach the honorable Lahore High Court (LHC) for grant of pre-arrest bail. The honorable Court, following due process, issued notices to the NAB authorities and sought an explanation as to why NAB wanted to arrest Hamza Shahbaz. In response, NAB authorities appeared before the honorable LHC and submitted that Hamza Shahbaz “is being called to join into an inquiry”, and that “neither the NAB is inclined to arrest the petitioner nor any warrant of arrest, against him, has been issued by the competent authority”.
As a result, vide order dated 20th November 2018, the honorable LHC declared that the “petition for pre-arrest bail has become infructuous”. Furthermore, importantly, the honorable Court concluded that “NAB authorities are directed that if hereafter it finds any ground for arrest of the petitioner, then the same would be communicated to him, so that he may have sufficient time of at least ten days, for approaching the Court of competent jurisdiction.”
Read more: Hamza Shahbaz’s assets grew 2000% during PMLN govt: NAB sources
This order, requiring ten-day notice period to an accused, prior to arrest, finds no real precedence in law or jurisprudence of the honorable Supreme Court. Regardless, the honorable LHC, in its wisdom, granted this relief to Hamza Shahbaz as well as a few other (unconnected) individuals, including one Mr. Jalil Arshad. As can be expected, NAB filed appeals against all such (identical) orders before the honorable Supreme Court of Pakistan.
While appeal in Hamza Shehbaz’s case is still pending, the appeal filed in Jalil Arshad’s case (against an identical order) was fixed for hearing before the honorable Supreme Court. In this regard, vide order dated 19th March 2019, the honorable apex Court observed that the LHC order “may be misinterpreted to imply that NAB cannot arrest an accused without informing him first”.
To this end, clarifying the precise legal contention, the honorable Supreme Court concluded that “on examination of the National Accountability Ordinance, 1999, reveals that no such limitation has been imposed upon NAB, in this behalf. Nevertheless to say, if sufficient material has been gathered to connect a person to the commission of an offence, obviously NAB can arrest such a person”. [Emphasis Added.]
The aftermath of this entire episode raises extremely important legal and political questions, which must be answered by our Courts as well as State institutions, in the coming days.
Prima facie, this conclusion of the honorable apex Court, in terms of the legal principles at play, does not relate to Jalil Arshad alone. The language of the honorable Supreme Court’s order clarifies the overarching principle that NAB can arrest any person, in accordance with law, without prior notice, so long as sufficient evidence is available to justify the same.
In the days following clarification by the honorable Supreme Court, NAB authorities proceeded with their investigative work against, inter alia, Hamza Shahbaz. And on, 4th April 2019, NAB served a notice to Hamza Shahbaz to appear on the following day (5th April 2019) to answer queries relating to accumulation of assets beyond known sources of income.
For reasons unbeknown, Hamza chose not to appear before the NAB authorities, triggering issuance of warrants by Chairman NAB (under section 24 of the National Accountability Ordinance, 1999) for arrest of Hamza Shahbaz. A duly authorized team of NAB officials raided Hamza Shehbaz’s house, at a time that he was present inside, and required him to surrender himself to the NAB authorities.
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In response thereto, the personal guards of Hamza Shahbaz resisted NAB’s efforts, preventing the NAB team from entering the house. Simultaneously, the PML (N) spin-machine sprang into action, with supporters and workers gathering at Hamza Shehbaz’s residence to prevent their leader’s arrest. In the circumstances, so as to avoid physical confrontation, NAB team withdrew and returned to their offices.
Soon thereafter, Hamza did a press conference to explain that he resisted arrest on the basis of the LHC’s order (dated 20th November 2018), and insisted that the principle laid down by the honorable Supreme Court does not apply in his case. The following day (i.e. Saturday) NAB’s team again made an attempt to arrest Hamza as his residence, resulting in a standoff that lasted almost six hours.
During this time, as reported, Hamza’s legal team filed a bail application before the LHC (which has been fixed for hearing on Monday). Also, at the same time, the legal team of Hamza Shahbaz, along with office-bearers of the LHC Bar Association, met with the Chief Justice of LHC in his chambers, seeking protective bail, till Monday.
Unfortunately, a few political parties, in order to protect the personal wealth of their leaders, have taken it upon themselves to malign State institutions and challenge the empire of our laws.
Late Saturday afternoon, the honorable Chief Justice of LHC granted protective bail to Hamza Shahbaz, without the accused being present in court. To this end, it is important to note that, as reported, the said order was passed by the honorable Chief Justice in his capacity as a single judge, without issuing notices to NAB, and without summoning the available evidence.
The aftermath of this entire episode raises extremely important legal and political questions, which must be answered by our Courts as well as State institutions, in the coming days.
Legal questions: Was the principle laid down in Supreme Court’s order dated 19th March 2019 (that NAB does not need to give prior notice before arresting an accused) apply only to Jalil Arshad, or can it also be extended to the gates of Sharif family’s fiefdom? Do the principles of criminal investigation, which apply to Allah Dittas of this country, also apply to forces of entrenched status quo? Just as importantly, can a single judge of the honorable High Courts grant relief in matters relating to NAB, when the NAB Ordinance (through section 32) specifically states that only “a bench of no less than two judges” can take cognizance of NAB-related issues? Is there any precedence of an honorable single judge of the High Courts granting relief in NAB cases? And what was the need for such a relief to be granted on a Saturday, in chambers, when the case had already been fixed for Monday morning? Also, could protective bail be granted to an individual (Hamza Shahbaz, in this case) without him appearing, in person, before the honorable Court? Lastly, and most importantly, is there any truth in the public criticism that the scales of honorable LHC have (historically) been tilted in favor of one specific political party?
Read more: Hamza hiding behind family to evade arrest: Fawad Chaudhry
Political questions: Can the State allow political leaders, who can gather party workers outside their house, to avoid arrest by hiding behind civilians? Will this mean that the arrest powers of NAB (and other law enforcement agencies) are only effective against the hapless citizens who cannot create a ruckus on the streets? Should we all, as a result, hire personal guards to serve as immunity against State institutions? Is street power, now, a valid defense against arrest?
These are challenging times for our polity, our State institutions as well as the law. Unfortunately, a few political parties, in order to protect the personal wealth of their leaders, have taken it upon themselves to malign State institutions and challenge the empire of our laws.
Read more: Nawaz Sharif’s bail order – Saad Rasool
In the process, there is a real danger that this personal political agenda results in confrontation between State institutions. For better or worse, this and related issues will have to be (finally) decided by the honorable Supreme Court of Pakistan. And the Apex Court’s judgment, in this regard, will also determine the fortune and future of our national accountability project.
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.