Bailed out?


Why shouldn’t other convicts get the same relief?


Ever since all hopes of relief from the Islamabad High Court failed, the PML-N launched a new campaign, actively highlighting the medical condition of Mian Nawaz Sharif, in a bid to secure relief for its Quaid, on medical grounds.

A constant wave of anger regarding the deteriorating health of Mian Nawaz swept through his supporters. The family claimed a critical life condition almost on an hourly basis. The twitterati affirmed the family version and even circulated tampered reports, thereby, effectively showing a weaker heart and worsening kidneys.

Ironically, the treatment being sought was only available abroad and not in Pakistan. All other doctors had, supposedly, refused to touch the patient owing to his complicated previous medical history. In fact, Mian Nawaz himself refused medical treatment at the hands of medical doctors and insisted on being shifted back to his prison quarters.

Despite the fact that dozens of people are allowed to meet with the PML-N supremo weekly, his family claimed otherwise. The allegations even found mention of doctors not being granted access to Nawaz. Naturally, a heart patient with a medical history of recent ill health requires medical attention and it is the fundamental right of a citizen to be provided with health care. However, in view of the dictates of the Constitution, all similarly placed individuals are to be treated alike. In the present case, other jail inmates would be similarly placed. None of the others, in the history of Pakistan, have been allowed to travel at their own whim as free men and seek medical care from a country of their own choosing. The sentence that Mian sahib is currently serving has its own restrictions. It doesn’t stop medical aid however, it certainly takes away the freedom to choose the Harley Street Clinic over the Jinnah Hospital.

Nevertheless, despite a meticulously executed media campaign, Mian Nawaz found himself at the mercy of the Supreme Court, which was tasked with deciding Nawaz’s bail application. The counsel for Mian Nawaz relentlessly pursued that permission to be granted for travelling abroad. Referring to the complicated medical history of his client, the counsel pleaded the need to receive immediate medical assistance, that too from outside Pakistan.

The notion that relief was extended to the power should have been dispelled by the apex Court by providing detailed legal reasoning

Eventually, when all odds seemed against him, the counsel for Mian Nawaz bowed down to the extent of bail within Pakistan for a period of eight weeks. A letter, purportedly written by a doctor, was presented and found inadmissible by the apex Court, since it had not been addressed to them, during the course of arguments. The veracity of the letter, the Supreme Court observed, could not be determined under the circumstances. Interestingly, the observations didn’t find mention in the order that was eventually dictated and released.

Appearing troublesome to some legal wizards, the bail order was released and along with it, Mian Nawaz allowed to be free, for six weeks. Despite being a convicted prisoner, his appeal against the sentence being sub judice and medical treatment being provided, he was released temporarily to seek medical treatment of his choice from within the country. The language of the order makes it clear that in no manner whatsoever shall Mian Nawaz be allowed to travel abroad. In spite of him being confined to the borders of Pakistan, Mian Nawaz has been granted the extraordinary concession of bail.

As far as medical treatment within Pakistan is concerned, it was already being offered to Mian Nawaz and he himself chose not to avail it. The only difference now is the comfort of his own home being made available.

The careful examination of the bail order reveals certain troubling aspects. First, the exchanges made during the course of arguments find no mention. Reliance is placed on the relief being sought and a brief reference to the medical reports appended with the petition has been made, following which the petition was converted into an appeal and simultaneously allowed.

Mr Justice Nasir Khosa, the Chief Justice of Pakistan who has re-written the criminal jurisprudence of our country, has authored the bail order opening a door for Mian Nawaz to temporarily walk free. What perturbs students of law is the absence of reaching the conclusion therein. The word ‘reasonable’ has simply been borrowed to ratify the conclusion made. The man who gallantly sent Mumtaz Qadri to the gallows and saved Asia Bibi from them, has issued a written order which has no explanation or reasoning for the decision made.

Ordinarily, it is a treat to read a judgement authored by Mr Justice Khosa, a single judgement of whose is sufficient to clarify the particular concept of law contained within. However, this particular order downplays the intellectual capacity and capabilities of the Supreme Court judges. It is quite understandable that by keeping the order brief, the apex Court has avoided the use of this order as a precedent in the future and for the very reason the judgement has also not been reported. Though there wasn’t much law within to be reported. Yet if such concession is indeed available as is evident from Mian Nawaz’s case, then detailed parameters should be drawn so as to provide this relief to thousands of other inmates suffering from more serious diseases. Being a former prime minister should not be a ground to secure bail.

The relief is indeed extraordinary as it details the conditions of the bail. The absence of reasoning for extending such relief to Mian Nawaz is the perturbing reality. The notion that relief was extended to the power should have been dispelled by the apex Court by providing detailed legal reasoning for allowing Mian Nawaz to walk free. Though, another aspect being put forward by a lot of critics is that Mian Nawaz will not go back to prison and his bail will be extended at the expiry of six weeks. However, the same has been eliminated by the apex Court itself. A bare reading of the order puts to rest the talk of him being out for a longer period of time.

The judges of the Supreme Court may not have been browbeaten by the masters of Nehal Hashmi. However, they certainly seem to have been compelled by a few medical reports.