The political frictions generating from the overreach of the Supreme Court will be far more damaging to Pakistan and its people than any gains which may be made during the investigations under the supervision of the Supreme Court
The statement of the Asian Human Rights Commission on the orders of the Supreme Court for the arrest of the Prime Minister and 27 other high officials in the case of Rental Power Projects that “the Supreme Court of Pakistan over reached its judicial power and all boundaries of its jurisdiction” stands vindicated by the statement of the Chairman of the National Accountability Bureau (NAB) that the Supreme Court could not monitor the progress of investigation in the cases.
Admiral Bukhari, Chairman of NAB told the court that the bureau’s inquiry report earlier submitted to the Supreme Court in the RPP case as inaccurate. During the hearing of January 18, the NAB Chairman claimed that the report did not have the complete records of the case. Bukhari also said that the investigation officers had worked in a hurry and did not provide proof in their reports. Mr. K.K. Agha, the Prosecutor General of NAB, pleaded that the apex court was overstepping its jurisdiction, saying it could not review the record of the anti-graft body; to which the bench observed that the constitution had given supervisory powers to the court in a matter of adjudication.
Under these circumstances, the questions raised by Advocate Agha, are such which require further scrutiny by the Supreme Court as these questions touch upon the legality of the supervisory powers in a matter of adjudication. The issue of the Supreme Court supervising investigations is also contentious, especially in view of Article 10-A “The Right to Fair Trial” and the “due process of law”. Both these questions fall squarely in defining the “Rule of Law”.
The insistence of the Supreme Court of Pakistan militates against Article 9 of the Constitution: No person shall be deprived of life or liberty, save in accordance with law. In the Case of Jogindar Kumar versus the State of UP (1994 (4) SCC 260) the Supreme Court laid down certain guidelines and also passed Obiter Dicta that “….the existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police office r must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified.”
The Supreme Court must be very cautious passing any order of arrest for the Prime Minister of Pakistan and other accused persons, as the questions of law arising hinge, not only on the nascent democracy which the people of Pakistan have achieved after a bitter struggle, but also the fundamental rights of the citizens of Pakistan.
The political frictions generating from the overreach of the Supreme Court will be far more damaging to Pakistan and its people than any gains which may be made during the investigations under the supervision of the Supreme Court. The question before the Supreme Court is very simple: would it like to become part of the democratization of Pakistan, or would it prefer to be an isolated institution in quest of popular opinion.
