THE accountability law of Pakistan was promulgated by Gen Pervez Musharraf a few weeks after seizing power. It was intended to provide legal justification for the coup d’état. The pretext (transparently sham) was that he was reluctantly taking over in order to check corruption. For this alleged objective he promulgated the NAB Ordinance 1999.

The ordinance criminalised non-repayment of bank loans, which was perhaps understandable in the case of loans obtained illegally by politicians from government-owned banks, but makes no sense at all in relation to commercial loans made by private-sector banks to businessmen in the normal course. The law was intended to prosecute one prominent political figure, who ironically was not charged thereunder, while lesser figures are routinely harassed by privately owned banks — yet another illustration of the law of unintended consequences. The law is replete with legal absurdities such as conflating cases of corruption with crimes committed by private individuals unrelated to the exercise, or misuse, of official power.

The law created a new set of courts, termed accountability courts, and it is this aspect of it that forms the subject matter of the present discourse.

Can NAB courts be termed courts of law?

The creation of a judicial system for making justice available to its citizens is one of the primary responsibilities of any government claiming to be law-based. There is enshrined in every civilised system of criminal justice and in international conventions the principle that a person accused of a crime is entitled to the presumption of innocence unless proven guilty by the state. This presumption is one of the fundamental bulwarks that protects individuals from arbitrary arrest and punishment by the state. It has been eloquently described as the golden thread running through the web of criminal law. Even the most despotic state pays lip service to this principle.

This principle carries a concomitant right and obligation. The necessary implication flowing therefrom is that the presumption of innocence entitles a person accused of a crime not to be imprisoned until he is convicted and hence confers the right to bail. The US supreme court, in a famous judgement in the case of ‘Stack v Boyle’ (reported as 342 US 1), held: “unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” Thus the linkage between presumption of innocence and the right to apply for bail is clear.

It is this vital principle that is violated in the present case since the accountability courts are expressly barred from granting bail. In other words, the universally accepted principle of presumption of innocence operates in Pakistan in a truncated form and can be reframed as follows: everyone shall be presumed to be innocent except a person arrested at the discretion of the chairman NAB who shall be liable to be deprived of his liberty until his trial is concluded. Why?

The purported justification for this grossly unconstitutional action is stated to be the importance of eradicating corruption (which, of course, continues to flourish under the gaze of NAB). However, the United Nations Convention against Corruption (to which Pakistan is a signatory) explicitly states and recognises in terms of Article 30(4) the right of an accused to obtain bail.

The violation of basic principles of law is compounded in the NAB law by Section 18 (e), which is startling in terms of conferment of an unbridled, unchecked and arbitrary power of arrest on the chairman NAB. The normal NAB proceedings take place in three stages; commencing with an inquiry, moving on to an investigation, and then culminating in a reference to the accountability court and the ensuing trial. However, the power of arrest is conferred on the chairman or any officer authorised by him prior to any of these stages. The section explicitly states that merely because he wishes to carry out an inquiry he is authorised to arrest any person. At this stage, by definition, no question of the man’s guilt arises. The section goes on to state that an inquiry or investigation should be completed “expeditiously”. In terms of NAB’s interpretation of the word ‘expeditiously’, it is a matter of record, that NAB proceedings can go on not merely for days, weeks, or months, but for years on end.

After arrest, the accused person has to be produced before the court within 24 hours, and then follows another provision which casts serious doubt on the constitutionality of what transpires in these courts. It provides that an accused person may be detained for a period of up to 90 days provided that NAB obtains a further remand order after every 15 days, with the court being obligated to record reasons to justify such an order.

Unfortunately, accountability courts routinely grant remands to NAB up to the full period of 90 days. No serious attempt is made to finalise the investigation in the first period of 15 days, which should be ample for purposes of completing an inquiry or investigation, if genuine. (By way of contrast, reference may be made to England in which in the event of a police officer carrying out an arrest the law mandates that the accused should either be charged with an offence or released within 24 hours).

So what remedy remains for an innocent person who has been arrested? He can file a petition in the high court asserting his constitutional right. Experience indicates that the chances of his obtaining swift relief are not bright. The high court rarely intervenes before the expiry of 90 days, and often demands a very large amount of security.

So, can we describe accountability courts as courts of law meeting internationally accepted norms? Or, are they merely instrumentalities of the state set up for achieving certain political or administrative objectives? Or, are they in the nature of quasi-judicial tribunals? Whatever they are, one thing is clear — we cannot describe them as courts of law and justice in the fullest sense without giving up our pretensions about having a civilised system of criminal jurisprudence.

The writer is a lawyer and a former federal minister for law, justice & human rights.

Published in Dawn, November 21st, 2016