Shrinking rights?

Asif Zardari has been arrested. Nawaz Sharif is serving out his jail term pending appeal hearings. NAB has arrested opposition leader Punjab Assembly Hamza Shahbaz.

Opposition leader National Assembly Shahbaz Sharif is on bail right now and could be arrested soon. Speaker Sindh Assembly Siraj Durrani is under arrest. Other than NS, all these politicos are behind bars because the state alleges they are criminals. The veracity of these allegations has yet to be tried and proven. For some, these arrests alone are harbingers of the promised accountability.

To dispassionately review what these arrests say about fundamental rights and rule of law in Pakistan, we will need to first apply John Rawls’ veil of ignorance. We need to analyze the jurisprudence around arrests without picturing Zardaris and Sharifs, and instead imagine everyone else who will now remain locked up due to the law laid down by the Supreme Court, which basically says that short of a truly extraordinary case of hardship (what that might entail, no one knows as yet), those accused under NAB law will remain behind bars pending trial and appeal.

Let’s start with the basics. Neither Article 199 nor any other provision of our constitution explicitly vests in high courts the power to grant bail. The Criminal Procedure Code (CrPC) inherited from British India, which set out to regulate the relationship between the colonial state and colonized people, provides for bail. It states that in bailable offences, bail is to be granted as a matter of right. And in non-bailable offences (that attract a prison term of 10 years or more) bail can be granted unless “reasonable grounds” exist for believing that the accused is guilty.

Post-independence, constitutional courts began to expand the scope of citizens’ rights. This made sense as the constitution now regulated the relationship between citizens and a state that had been delegated authority by citizens and not another sovereign. The constitution as a contract between citizens and the state seeks to protect citizens against excesses by the state. In a nutshell, Article 4 prescribes that the state can only do what it is explicitly authorized to do as opposed to a citizen who is free to do what s/he isn’t prohibited from doing.

It was in this context that constitutional courts assumed the authority to grant bail when no remedy against arrest and detention was provided in statutory law. The National Accountability Ordinance is one such law and it was settled back in the Asfandyar Wali case that high court has the power to grant bail even when none is provided for in NAB law, and that bail ought not be withheld as a punishment. This principle wasn’t contrived for NAB law, or for Sharifs or Zardaris. It was borrowed from ordinary criminal law, which had been applied by our courts for decades.

The Supreme Court explained the rationale for grant of bail in Manzoor vs the State (PLD 1972 SC 81): “There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case…”

There is nothing confusing about the logic of the underlying principles. That everyone is innocent until proven guilty is a settled principle of law and fairness. When the state accuses a citizen of committing a crime, it is for the state to prove beyond reasonable doubt through admissible evidence that the accused is guilty. The right to life and liberty is an alienable right under Article 9, and after Article 10A the right not to be punished without due process is a fundamental right too. And when there is a right there must be a corresponding remedy (for its breach).

In view of these uncontested principles, the surprising thing isn’t that the SC held decades ago that bail mustn’t be withheld as punishment. But that even after promulgation of Article 10A it hasn’t ruled that only in exceptional cases (ie fear of flight or obstruction of justice or cases of repeat offenders etc) must bail be denied. We know that our conviction rate is abysmally low. We also know that trials and appeals linger for years. So we know that law-enforcement brings charges that don’t hold up and yet we keep folks locked up for years and years.

Over two decades, Chief Justice Khosa has developed much of the criminal law jurisprudence that holds sway today. As a high court judge and later as part of the SC, he authored judgments ruling that just because Section 54 of the CrPC grants the police the power to arrest doesn’t mean that the discretion can be exercised whimsically. We have seen the SC set aside convictions in recent years where the accused remained behind bars for over two decades (and in one instance where the accused had already been hanged when their conviction was set aside).

What remedy is afforded to those who remain locked up and are finally released? Can you recompense a citizen who has been robbed of a lifetime of liberty, dignity and meaningful life? Should these citizens sue the police officials who charged them for crimes that weren’t eventually proved? Or the judges who denied them bail or who convicted them at trial and were later overturned by appellate courts? Is it not clear that our system uses denial of bail (pending trial or appeal) and the time consequently spent in jail as the real punishment?

A just criminal justice system needs to be safe as well as efficient. It is efficient if it is able to convict most of those it tries. But to be just it must also be safe and convict only those whose guilt is backed by proof beyond doubt. We are working with a system that is neither safe nor efficient. And in order to make up for its dysfunctionality it resorts to using arrests pending trial and conviction as proxy for punishment and proof of its efficiency. A legal system that presumes folks guilty unless proven innocent is a mockery of justice.

When the judiciary imported principles of the CrPC into the constitution and asserted its right to grant bail in the absence of any other remedy, it did do without statutory law backing. Likewise, when it held that fundamental rights are to be construed liberally and fetters on rights restrictively, it was reading principles of democracy into the constitution. What has changed now, leading it to narrow down the scope of bail in NAB matters, making bail a near impossibility? Parliament hasn’t amended the National Accountability Ordinance or Article 199 of the constitution, causing the SC to redefine the scope of bail. When there was no constitutional right to due process, our courts held that principles of natural justice must be read into every law. However, jurisprudence produced since the time Article 10A was finally written into the constitution has not been very favourable to the spirit of the article.

The SC says its hands are tied. That parliament in its wisdom has denied the right of bail in NAB matters and so it can only do so much unless the legislators change their mind. However, this isn’t a court that seems to believe in strict construction of text. The closing up of the benefit of bail has come at a time when we have seen the SC expand the scope and reach of Articles 62/63 as well as Article 184(3) beyond recognition and also grant itself the right to even override constitutional amendments

It has also come at a time when civil liberties are taking a beating, when missing persons’ cases continue unabated, when the media remains under incredible stress without any formal edict imposing censorship and when a majority of the SC judges have ruled while hearing challenges to the 21st Amendment that military courts might not be a bad idea. Have the guardians of the constitution and fundamental rights bought into the populist narrative that to save Pakistan even inalienable rights must be treated as luxuries that citizens can enjoy only when the state deems they can?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu