Preferential treatment

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Pre-arrest bail means physical presence in court

 

Ever since the accountability process came into the limelight, political point scoring as well as victimisation has been centre stage. Where some politicians profess the need for active accountability, the others call out the alleged victimisation. The PML-N mostly has been at the forefront of facing the brunt of accountability. With many of its leaders facing inquiries, some have even been incarcerated in the process.

The Sharif family as a whole is facing a number of inquiries, with the elder Sharif walking out just days before owing to the bail granted by the Supreme Court. The younger one also secured bail a couple of weeks before the elder. NAB and its accountability may have its own flaws, but those flaws are a result of the discrepancies within the NAB law. Till such time as the law is amended, NAB enjoys the powers enshrined in the 1999 ordinance.

The pivotal question of debate at the moment is the NAB saga outside Mian Shehbaz Sharif’s residence over the weekend. NAB made two failed attempts to arrest Hamza Shehbaz, wanted in a case pertaining to assets beyond means. Failing the first time, NAB came back with more force and even sought the assistance of the Punjab Rangers. Although Hamza had petitioned the Lahore High Court for pre-arrest bail, it is fixed for hearing on Monday (today). No restraining order was in field which barred the NAB from proceeding with his arrest.

What perturbs the legal minds is the protective bail granted to Hamza over the weekend by the Chief Justice of the Lahore High Court, Mr Justice Sardar Muhammad Shamim Khan. A petition for protective bail was moved on Saturday and was heard in chambers by the Chief Justice the same day. Not only that, the Chief Justice went on to prevent NAB from arresting Hamza till Monday, when his actual pre-arrest bail is fixed for hearing before a division bench of the Lahore High Court.

The order passed by the Chief Justice raised a lot of eyebrows and turned a significant number of heads. Certain legal parameters seemed to have been overlooked by the Honourable Judge whilst passing the order. Firstly, the concession of pre-arrest bail is only granted when the petitioner seeking the relief physically places himself at the mercy of the court. Secondly, the Lahore High Court does not function on Saturdays under any circumstances. Thirdly, the arrest warrant issued against Hamza was issued by the NAB chairman in accordance with the powers so vested in him under the law. Any appeals, petitions or other matters pertaining to NAB, being brought before the Lahore High Court, has to be heard by a bench of not less than two judges. That is precisely why a special divisional bench takes up all cases pertaining to NAB.

The LHC Chief Justice should be made to provide reasons, considered sufficient in the sole opinion of the apex court, for passing the restraining order

However, as surprising as it seems, Hamza’s petition was taken up by the Chief Justice sitting as a single member bench in his chambers, that too on a Saturday which is not a working day for the High Court. There is no harm in taking up cases on a Saturday. If a judge so wishes to dispense justice, similar to the practice adopted by the former Chief Justice of Pakistan, Mr Justice Saqib Nisar, then so be it. However, such facility should be available to all citizens and not only to the influential families of Pakistan. Had it been an ordinary government officer facing the threat of arrest outside his residence, the staff of the Chief Justice wouldn’t even have let his lawyer come anywhere near the chamber, let alone his taking up the matter and passing an order.

No matter what justification is provided, the order passed by the Chief Justice falls under the definition of preferential treatment and there is no denying that. Even otherwise, technically speaking, such an order could only have been passed by a divisional bench. Strictly in the eyes of law, Saturday’s order has no legal standing and the same, if challenged, would be struck down within the blink of an eye. The least which the Chief Justice could have done was to summon the lawyers from NAB and hear their version before passing any order. Under the extraordinary circumstances that unfolded on Saturday, NAB would readily have appeared and apprised the Chief Justice of their stance. No doubt the judiciary of Pakistan is independent, but when members of the judiciary act out in a manner which casts doubt on their ability to treat all citizens equally, then questions are indeed raised and rightly so.

Ordinary citizens are made to languish in jails, awaiting trials, and their petitions are not even taken up for hearing. On the other hand, carrying the name Sharif enabled Hamza to have his petition heard and obtain an order as he desired. It is deplorable to see legal jurisprudence being disappointed in such a manner. The petitioner didn’t even appear before the Chief Justice in person, which till now was considered a mandatory requirement in order to secure relief. Absconding even entails cancellation of a bail already granted. Nevertheless, the Chief Justice developed new jurisprudence in his wisdom and intellect. Hopefully, he must have detailed reasons, as well as precedents to rely on, for passing such an order.

Similarly, it is disgraceful, as a leader for Hamza Shehbaz to hide behind his army of personal guards and not surrender willingly. As claimed, if he is innocent, then the law would have come to his aid and he could have vindicated himself over the course of time. Resisting only cements the allegations no matter what the N leaguers claim.

In my opinion, the Chief Justice of Pakistan should take notice of the order passed on Saturday and make it clear to the legal fraternity as well as the country in general in regards to the legality of the same. The LHC Chief Justice should be made to provide reasons, considered sufficient in the sole opinion of the apex court, for passing the restraining order. But this exercise must be undertaken in accordance with law and the procedure laid down therein.