The National Accountability Ordinance, 1999, was made by Musharraf, a military dictator, with the only aim of consolidating his usurpation of political power and to lock away political activists and dissidents in prison. The Ordinance was made with the unambiguous intentions of doing away with the presumption of innocence until proven guilty, the longstanding legal principles of bail and of the general safeguards of a fair trial and due process.
The Accountability Law also provides for long detentions of individuals during the investigation of alleged offences, not just individuals standing trial. This is simply an affront to the Constitutionally protected fundamental rights of liberty and security of person and of the right to a fair trial, a clear redundant vestige of the dictatorial era it comes from.
Bail stems from the principle of presumption of innocence of an accused. When a person is standing trial, since they are presumed innocent, they are given bail instead of being kept in pre-trial detention. After all, should a person be found innocent after trial, no form of compensation could make up for the deprivation of liberty. True to its purpose of a draconian dictatorial law, the law did not provide for bail, and instead provided for lengthy detention before trial.
The High Courts in Pakistan, in order to provide extraordinary relief in such matters allowed bail through a Constitution Petition to the High Court under Article 199 of the Constitution of Pakistan.
Following the end of Musharraf’s regime and restoration of a democratic setup when the Constitution of Pakistan was overhauled in 2010, it saw the introduction of Right to a Fair Trial as a constitutionally enshrined and protected fundamental right. The abuse of this law however continued unchecked.
It was as if the establishment actively worked behind the scenes to undermine the elected governments of PPP and the PML-N while these parties were in power. It was ironic that during the 2008-2018 period, no Prime Minister was allowed to complete their 5 year term. The accountability laws played a central role in that.
Former Prime Minister Shahid Khaqan Abbasi maintains his innocence and has stated that he was victimized by the establishment and NAB for failing to fall in line. He has demanded an open and public televised trial. Similarly, Khawaja Saad Rafique, the former Railways Minister claims that he is being victimized for defeating Imran Khan in the polls in his constituency.
When Musharraf took over, and the Musharraf regime and the establishment had to break-up the ruling PML-N, they used the accountability laws to force people into the newly formed PML-Q and made a forward bloc in the PPP called the patriot bloc. This happened once again when the establishment broke out electable from the PPP and PML-N to bring the PTI into power before the 2018 general elections, for example, Usman Buzdar, the current PTI Chief Minister of Punjab was a back-bencher in the PML-N and switched parties about month before the General Election. Again accountability laws were the stick to the carrot of being in power.
Mir Shakil-ur-Rahman, the chief editor of Jang Group of Newspapers was arrested by the National Accountability Bureau even before the opening of an investigation of an offence that allegedly took place more than three decades ago.
This could not be a more blatant attack on the Freedom of the Press in violation of not just Constitutionally protected rights of liberty and security of person by the state.
The Chairman of the National Accountability Bureau, Justice (r) Javed Iqbal, who ordered the arrest, is a retired judge of the Supreme Court. One could have been mistaken to have believed that a person who has held such high office would have been more mindful of the law and the Constitution and of individual rights, liberties and freedoms. However, Javed Iqbal, appears to have not only trampled upon Mir Shakil-ur-Rahman’s constitutionally protected rights but also on the Freedoms of the Press, perhaps at the behest of the establishment.
The establishment has been trying to reign in the Dawn group by withholding advertisements. There has been a viscous propaganda against the Jang group by labeling them as Indian agents and traitors.
The Jang Group, like the Dawn Group, has been a fiercely independent news group. It is shameful and unconstitutional that the state, through a retired judge and a public servant are persecuting a journalist for their own, unlawful ends.
There are numerous videos of PM Imran Khan before and after the election saying that he would persecute Mir Shakil-ur-Rahman using the NAB. It is pretty clear that the present government is using the same tools they have been using to rein in politicians to reign in the media. Needless to say that this is clearly unlawful and unconstitutional.
The arrest is unlawful. Mir Shakil-ur-Rahman was arrested at the stage of “complaint verification”. He is not an accused in any case, nor is he under investigation. There is no provision in the National Accountability Ordinance, 1999, which empowers NAB to arrest him at this stage.
The Supreme Court of Pakistan, interpreting Article 4 of the Constitution has held that a statutory body can only do what it is permitted by law to do, unlike a natural person who can do whatever the law does not prohibit.
The National Accountability Bureau had implemented a policy last year to not to harass, call or arrest businessmen, entrepreneur and members of the general public, and it now appears that either they are violating that policy blatantly, or are selectively applying them.
In either case, that makes the arrest and detention on mere suspicion and without a formal charge, unlawful, and the resultant effect unconstitutional.
It is imperative that the National Accountability Bureau raises no baseless objections to the release of Mir Shakil-ur-Rahman to save whatever reputation and image it can salvage.
In the present situation, the High Courts of Sindh and Islamabad are releasing all individuals on bail in such cases in light of the COVID-19 pandemic. Mir Shakil-ur-Rahman’s case ought not to be an exception, however the wheels of justice turn very slowly in this country.
This illegal arrest should also be taken as an opportunity to critically review and analyse this relic of the dictatorial regime. The Parliament ought to repeal it, and perhaps replace it with a better, more balanced and debated piece of legislation which safeguards the rights of individuals accused of or even suspected of an alleged offence.