Landmark IHC judgement: NAB can’t make arrests for roving inquiries

BBy Tariq Butt

ISLAMABAD: In a landmark judgement, the Islamabad High Court (IHC) has held that the executive power to arrest a person under the National Accountability Ordinance (NAO) cannot be exercised unnecessarily or for conducting roving inquiries.

If an accused is cooperating in the inquiry or investigation and appropriate measures have been taken to ensure his attendance then in such an eventuality restriction on constitutional rights would be an abuse of the executive power, the verdict, authored by IHC Chief Justice Athar Minallah as head of the two-judge bench, including Miangul Hassan Aurganzeb, ruled

The judgement exhaustively deals with the powers of arrest of the National Accountability Bureau (NAB) chairman, lays down parameters for exercise of this authority and spells out safeguards against excessive and arbitrary exercise of power to detain a person. The detailed ruling was handed down while accepting the bails of two officials of the Pakistan Telecommunicaiton Authority (PTA).

Excerpts from the judgement: The power to arrest under the NAO is not absolute, unfettered and its exercise is subject to the principles and law highlighted in the order.

Rights that could be affected by arresting an accused under the NAO include: the right to be presumed innocent; the right to be treated in accordance with Article 14 by recognising inviolability of dignity; the right to liberty and freedom of movement; and the right not to be treated differently.

In the absence of lawful authority, to justify intrusions into constitutionally guaranteed rights, the detention or incarceration would become ‘false imprisonment’, which has evolved in the law of Tort for the protection of liberty and against abuse of executive power. It is thus an obligation of the person directing the arrest to discharge the onus by demonstrably justifying that there were no other less restrictive means for the purposes of conducting effective inquiry or investigation. Deprivation of liberty must be exercised as an exceptional option for the purposes of inquiry or investigation in relation to white collar crimes.

The NAB chairman and the investigators are vested with expansive powers under the NAO, without any oversight by an independent body. The nature and expansiveness of executive powers vested in individuals inevitably raises the threshold of judicial review because constitutionally guaranteed rights are at stake. Incompetence, lack of professional expertise and proper training to deal with white collar crime, besides jeopardising constitutional rights, can have deleterious consequences for the governance system and cause harm to the economy. This makes it an even more onerous task for the NAB chairman and investigators to take extraordinary care while exercising executive powers, particularly that of arresting a person who is presumed to be innocent at the inquiry or investigation stage.

The power to arrest under Section 24 read with Section 18(e) of the NAO is definitely not unfettered, absolute or allowed to be exercised without being adequately justified on the touchstone of the principles and law highlighted in the judgement.

We expect that the Federal Government and Parliament will consider to take appropriate measures in order to ensure that the accountability process is made effective, transparent and fair and that NAB is equipped and strengthened to meet the challenges and achieve the object for which it has been established. We also expect from NAB to be mindful of the consequences of excessive and arbitrary exercise of power of arrest relating to the constitutional rights, economy, governance system and foreign affairs interests. The corrupt must fear NAB while the innocent and honest repose confidence that they would not be wronged and be dealt with fairly. Arbitrary and indiscriminate exercise of power to arrest is in itself abuse of authority having deleterious consequences as discussed above.

The power to arrest a person under the NAO has an unambiguous purpose, and if its exercise becomes necessary in the facts and circumstances of the case, deprivation of liberty and restrictions on enjoyment of other rights would be justified. In order to protect the most crucial and fundamental rights, such as the right to liberty and not to be subjected to degrading and humiliating treatment, courts have developed and applied the principles of proportionality, reasonableness and the need to use the least intrusive alternatives as tools for judicially reviewing the exercise of executive power which results in detention or arrest.

It is the duty of authorities vested with powers under the NAO to treat an accused fairly during the course of inquiry or investigation because the latter is presumed to be innocent. No accused must feel that the powers are being exercised indiscriminately. Equal treatment of all similarly placed accused should be demonstrably reflected from the manner in which statutory powers are being exercised. The power to order the arrest of an accused must not be exercised in an indiscriminate and arbitrary manner giving rise to complaints that some are treated less favourably than others. The actions ought to show, unambiguously, that the executive discretion of ordering the arrest is exercised in each case uniformly and without discrimination.

The foundational principle of structuring of the discretion must be obvious from the actions of the executive authorities which adversely affect fundamental rights. If the authority vested with the power to arrest provided under a statute fails to adequately explain its exercise in a way that is manifestly uniform and similar in all cases, then it would be an infringement of the right guaranteed under Article 25 (equality of citizens before law). No power or discretion vested in an authority can be exercised indiscriminately and without being structured.

Article 4 declares that to enjoy the protection of law and to be treated in accordance with law is an inalienable right of every citizen and, in particular, no action detrimental to life, liberty and reputation shall be taken except in accordance with law. The test is public perception and confidence. Across the board accountability can only be achieved if there is no perception that accused are treated differently. NAB must be able to demonstrably justify why some accused are arrested while others are treated differently.

Liberty and freedom of movement are regarded as the most crucial human rights and their protection as one of the foundational pillars for upholding the rule of law. But these rights are not absolute. Restrictions on its enjoyment can be imposed by law. Such limitations can be lawfully imposed and authorised by the legislature and one such example is the power of arrest provided under the NAO.

The grounds upon which such authorisation would be justified may also be set out in the statute itself. Keeping in view the value and importance of the fundamental rights of liberty and freedom of movement, the exercise of the executive power to arrest must be strictly circumscribed by the object which is intended to be achieved and not excessive or disproportionate. In a nutshell, the right to liberty, being a sacred shield against abuse of statutory power vested in an executive authority, must be jealously guarded as the duty of a constitutional court. Abuse, excess or unlawful exercise of authority or power vested in an authority under the law and having the effect of depriving a person from enjoying the right to liberty amounts to a serious violation of the constitutional right guaranteed under Article 9 (security of person.

The exercise of the power to arrest provided under Section 18(e) read with Section 24 of the NAO would be lawful if the intrusions into the conflicting fundamental rights guaranteed under Articles 9 and 14 could be adequately justified.

An arbitrary, indiscriminate and reckless exercise of the executive power to arrest during an inquiry or investigation under the NAO would be in violation of the constitutionally guaranteed right and the explicit recognition that human dignity is inviolable. Arresting a person in an alleged white collar crime by exercising the executive power in a mechanical and arbitrary manner, or unnecessarily, has serious consequences. It can cause irreversible damage to the reputation of a person. The social stigma attached with being arrested for an offence under the NAO can have devastating implications and massive human impact, not only for that person but for his family members as well.

The publicity given to the arrest of an accused through press releases issued by NAB and any irresponsible reporting in the print or electronic media could ruin lives, including those who at the end of a fair trial are declared innocent.

Presenting suspects as though they are guilty exacerbates the humiliation which is already suffered because of the arrest. Such treatment and interference with liberty definitely amounts to infringement of the inherent dignity of a human and thus is a serious violation of inviolability of dignity guaranteed under Article 14. A suspect cannot be exposed to humiliation unnecessarily as a result of exercising powers excessively or arbitrarily. Article 14(2) is a constitutional assurance to every person not to be subjected to torture for the purposes of extracting evidence. This is most relevant in the context of the expansive powers vested in NAB and its chairman, particularly its distinct features relating to the acceptance of plea bargain or the power to allow an accused to become a witness against others. Abuse of the intrusive power of arrest or the threat thereof can have serious implications regarding the right under Article 14.

Treating a person as guilty before the charges are proved in a fair trial is a negation of the independence and impartiality of the legal process. It is for this reason that the presumption of innocence is crucial, and its recognition is a foundational principle of the right to a fair trial. The serious consequence, which may follow a conviction, is the reason for imposing the onerous duty on the State to prove a criminal charge beyond reasonable doubt. It is because of this crucial presumption that, despite being alleged of committing an offence and regardless of its gravity, the accused retains his or her fundamental rights, such as the right to liberty and inviolability of dignity. The intrusions into these constitutionally guaranteed rights will be legitimate and lawful if they can be adequately justified in the context of the relevant law.

NAB, under the NAO, has been established to achieve a paramount public interest. In order to enable it to achieve the intended object, the legislature has clothed it with extensive powers whose exercise can have serious consequences in relation to the constitutionally guaranteed rights of liberty and inviolability of dignity. The power to order the arrest of an accused during inquiry or investigation can have deleterious effects, not only for the latter but other family members as well. In order to justify an arrest of a person in a non-violent crime, who is presumed to be innocent, the authority empowered in this regard has to show that there were no other less intrusive means or alternatives. Does an accused under the NAO retain the presumption of innocence before being convicted?

It could be argued that there is no such presumption, keeping in view Section 14 of the NAO because it contemplates reverse onus. Does this provision affect the principle of presumption of innocence at the stage of inquiry or investigation ie before conviction is handed down by a special court following a fair trial? Section 14, for the first time, was interpreted by the Supreme Court in 2001 in which it was held that the prosecution has to establish the preliminary facts and after that the onus shifts and the defence is then required to be called upon to disprove the presumption.

Be it the general law or a special law, such as the NAO, the power to arrest an accused cannot be exercised mechanically and deprivation of liberty or intrusions into fundamental rights guaranteed by the Constitution are required to be adequately and demonstrably justified. The power to arrest is to be exercised fairly, justly, equitably and without discrimination. There must be sufficient incriminating material to justify arresting an accused. The ‘incriminating material’ must be of the nature which, prima facie, indicates involvement of the accused in the commission of the offences under the NAO.

The material brought on record should, prima facie, show existence of criminal intent or motive, mens rea, element of conscious knowledge and participation with the object of obtaining illegal gain or benefit. In the absence of these crucial elements, arrest of an accused would amount to an abuse of the power to arrest vested under the NAO. Mere allegations of misuse of authority would not justify depriving an accused of liberty because an irregularity or wrong decision sans criminal intent, mens rea and illegal gain or benefit does not attract the offences under the NAO. The power of arrest under the NAO cannot be exercised in an indiscriminate, reckless or wanton manner because there are conflicting fundamental rights guaranteed under the Constitution which cannot be ignored.

It is obvious that exercising power of arrest excessively, in an arbitrary manner and which has the effect of limiting the conflicting constitutionally guaranteed rights unnecessarily, definitely amounts to abuse of such executive power. In such an eventuality deprivation of liberty and curtailment of other rights guaranteed by the Constitution would be unconscionable, expose the person to extreme hardship and thus give rise to extraordinary circumstances.

The NAB misconstrues the judgements of the Supreme Court relating to release of an accused who has been arrested under the NAO as giving unfettered and absolute power to arrest an accused. It would be atrocious to imagine or read into the law laid down in these judgments approval of abuse of the executive power of arrest. To the contrary, the apex court has highlighted the importance of safeguarding the rights guaranteed by the Constitution against abuse of executive power to arrest an accused. What are those rights which are affected when an accused is arrested?

From the language used in the NAO provisions, it is obvious that arrest of an accused is not mandatory, rather it has been left to the discretion of the authorised person to exercise this power, as and when necessary, for achieving the intended object. It is an executive power and thus its exercise is subject to safeguards to prevent abuse or excess.

White collar crimes are committed by skilled professionals, most of whom are experts in covering up and erasing the traces when the crime is committed. It, therefore, poses enormous challenges for the investigators. The detection and investigation of offences dealt with under the NAO requires highly trained professionals having expertise in forensic accounting, money laundering, data mining and data analysis etc. If the investigator of a white collar crime is unable to conduct effective inquiry and investigation without arresting an accused, then it raises serious questions regarding competence and professionalism. This important aspect cannot be ignored because of the massive human impact involving physical and psychological damage and the social stigma caused due to arrest of a person on allegations of corruption and corrupt practices under the NAO.