EVERY crime usually has three ingredients. The guilty act (actus reus), the guilty mind (mens rea), and a concurrence of these two elements at a given point in time. The guilty mind can be of varieties of seriousness, from clear intent to commit the guilty act (eg, shooting at someone in order to kill them) to taking a substantial and unjustifiable risk that led to the guilty act (eg, causing loss of life while driving drunk).

Recently, NAB’s chairman revisited the infamous episode where administrative members of the academia were brought to court in chains by accountability officers in Lahore. Defending his bureau’s actions, he rhetorically asked “if one were to make a mistake which leads to hundreds of students losing out on their futures, do you think NAB would remain silent?”

The chairman spoke of a ‘mistake’ triggering NAB’s inquiry. Mistakes occur without intent. When criminalised, they are called strict liability offences and are the exception to the need to establish mens rea. The act itself becomes the criminal infraction. An example is traffic tickets, where the state allows you to challenge whether you were speeding or whether you were wrongly parked but does not allow for you to justify why you were doing what in either case. As long as the guilty act occurred, the presence of a guilty mind is superfluous.

If a professor makes an administrative mistake, or a bureaucrat procures something after meeting the legal standards of evaluation that breaks down or costs more than it should have, can the same standard of strict liability be applied for adjudicating corrupt practice as one would a parking ticket? The Lahore High Court (LHC) was recently faced with a similar question. And its answer was emphatically in the negative.

What ought to be preventative custody has, in effect, become punishment before conviction.

In June 2019, NAB moved to arrest Muhammad Sibtain Khan, a minister in Punjab Chief Minister Buzdar’s cabinet. The arrest related to allegations based on irregularities surrounding a joint venture agreement for the extraction of iron ore deposits in 2007, when he was the minister for mining. The venture was later cancelled, and the matter landed in the LHC, which ordered a NAB inquiry after holding the ministry was incompetent to enter into such a venture without a transparent procurement process.

The inquiry was closed by NAB in mid-2014, on the grounds that as the venture was cancelled no loss actually occurred to the exchequer. A report stating the same was put before the LHC at the time. The current NAB chairman authorised its reopening in April 2018, leading to the minister’s arrest. The LHC afforded him bail in September 2019.

Why was the inquiry reopened? Para 8 of the judgement states: “But surprisingly, without bringing on record any fresh ground or to digging out any hidden truth, the inquiry was reinitiated on the same allegations vide letter dated 26.04.2018 issued by the DG NAB. The reasons and circumstances were, apparently, neither brought before the chairman NAB, nor [had he] formed opinion on the basis of material. He had just ordered the reopening of inquiry without holding any official of NAB responsible for closure of the inquiry. … Needless to observe here that with greater powers always lies the greatest responsibilities. The powers of the chairman are also structured by law and conscience, and therefore, he must be guided by them…”

Is what was being re-inquired enough to constitute a criminal offence? Para 10 then states: “In the facts and circumstances, merely violation of some law or the procedure at the most, without any mens rea the case of the prosecution needs further inquiry. The record so far presented before this court shows that the petitioner has directed to follow the procedure before awarding the contract. … The offence of cheating public-at-large, therefore, needs further probe as its ingredients are not prima facie reflecting on record.”

NAB’s laws were enacted to craft a special regime where bail was specifically denied during the investigation or the trial stage. The entire scheme of the law was challenged on the touchstone of it being violative of the Constitution. In the Asfandyar Wali Khan case, the Supreme Court (SC) held that even if the legislature has deemed fit to oust the regular laws affording bail to accused persons in accountability cases, that would not denude them of their constitutional right of liberty, and where it is being unfairly taken from them, the courts would step in to afford them this right under Article 199.

The current chief justice of Pakistan has made fertile flat land out of mountains, in that he has cleared the backlog of the criminal docket in the court. He has shaped large areas of criminal law that needed urgent attention and has done so with the outlook of a liberal constructionist. In determining the police’s colonial holdover powers to investigate and arrest, the CJP read in the need for the application of the mind on the part of the authorised police officer before an FIR is to be registered, as the same is a triggering event that could lead to arrest and the deprivation of liberty for the nominated accused. However, his court’s interpretation of NAB’s powers to arrest and detain pending trial have been decidedly more literalist and will form the more famous part of his legacy.

The SC’s current view on bail in NAB cases is simple: the legislature has clearly intended to deny the accused under NAB law the right to bail. Hence, for the courts to exercise their constitutional jurisdiction, the circumstances must be extraordinary. What can be extraordinary before trial? It has come down to a single point: hardship. Unless you can prove that being detained would cause an extraordinary amount of hardship pending trial, you stay in custody — without the accusations against you being proven. What ought to be preventative custody has in effect become punishment before conviction, because it is noted that our legislature intended it thus.

In theory, all this does is raise the bar that NAB must meet ever higher before it embarks upon an investigation which involves the accused being denied liberty. In effect, however, it has allowed NAB the space to behave without any logical or coherent structure, by using pretrial detention as a tool in its investigative armoury.

After the minister was afforded bail, NAB moved to arrest instead the now 70-year-old secretary of the ministry on the same allegations. The guilty mind is still missing in the charges against the secretary, but perhaps we are looking for it in the wrong place.

The writer is a lawyer.

Twitter: @jaferii

Published in Dawn, December 9th, 2019