NAB challenges SC’s judgment in Saad Rafique’s bail case

Lawful arrest is not compromise of liberty, says NAB

ISLAMABAD:

The National Accountability Bureau (NAB) on Wednesday filed a review petition against Supreme Court’s (SC) detailed judgment regarding former railways minister Saad Rafique’s bail wherein the apex-court raised questions regarding anti-graft body’s conduct and its chairman’s powers of arrest.

The NAB in its review clarified that power of arrests were never employed for harassment purposes and that the [accountability] courts were independent. The review added that the accused and prosecution are just two parties, and that the court adjudicates in a bipartisan manner and gives neither party any advantage or disadvantage.

Therefore, grant or refusal of bail is subject to incriminating evidence, portraying a picture contrary to the facts by the accused is wholly unjustified. Thus, NAB was not being high-handed for incarcerating someone on the refusal of bail, the review petition upholds.

It also contends that lawful arrest is not compromise of liberty. The NAB also objected that the division bench of the apex court does not have the jurisdiction to hear this bail case under Supreme Court Rules 1980, adding that at least three-member judge bench should hear it.

On July 20, the SC in its 83-page judgment said that accountability laws have been successfully used to change political loyalties.

"Pygmies were selected, nurtured, promoted, and brought to prominence and power. People with notorious backgrounds and criminal credentials were thrust to rule us in various capacities with predictable results,” states the writ order.

Giving detailed reasons for its order dated March 17, 2020, whereby it granted bail to Pakistan Muslim League-Nawaz (PML-N) leader Rafique, a bench of SC, headed by Justice Maqbool Baqar and comprising Justice Mazhar Alam Miankhel, raised serious concerns regarding NAB’s conduct.

The apex court observed that accountability laws were successfully employed as tools to change political loyalties, for splintering and fracturing political parties.

Penned by Justice Baqar, the judgment begins by quoting British political economist and philosoper JS Mill: “A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes --will find that with small men no great thing can really be accomplished”.

Dilating on the role of accountability laws throughout our history, Justice Baqar observes that, “Rather than doing any good to the country or our body politic and cleansing the fountainheads of governance, these laws, the manner in which they were enforced, caused further degeneration and created chaos, since the same were framed and applied with an oblique motive of arm twisting and pressurizing the political opponent into submission, subjugation and compliance, so as to remove them from the public scene at least temporarily. These laws were successfully employed as tools to change political loyalties, for splintering and fracturing political parties. Pygmies were selected, nurtured, promoted, and brought to prominence and power. People with notorious backgrounds and criminal credentials were thrust to rule us in various capacities with predictable results”.

The court further observes that: “We have come to this unfortunate pass, in most part, because of the repeated direct unconstitutional interventions and manipulations by undemocratic forces. Lust of power, desire to capture and rule and pursuit of self-aggrandization have resulted in violation of prescribed jurisdictional limits and ceding of political space in governance”.

The written order goes on to say, “Thus, any deprivation of liberty or curtailment of rights guaranteed by the constitution has to be adequately justified on the touchstone of the principle of proportionality, unreasonableness and necessity. While dealing with the question of whether or not bail is to be granted to an accused, it has to be kept in mind that the object of bail is to secure the attendance of the accused at the trial. The object is neither punitive nor preventive”.