The way the SC has reversed the clock is very unprecedented, says Muneeb Farooq
Former prime minister and Pakistan Tehreek-e-Insaf Chairman Imran Khan is pictured in this undated file photo. — AFP
KARACHI: The SC has given Imran Khan unprecedented relief to protect him from an arrest in another case, says a legal expert as other lawyers feel that the court managed to expand citizens’ access to justice with its judgment yesterday, but warn that Imran should be prepared for a likely arrest in a fresh case today.
Lawyer and TV host Muneeb Farooq says that the main question after yesterday’s SC order “is about the relief that was not even sought by Imran Khan. The SC has declared his arrest as illegal and brought back the clock to where it was before he was arrested. But at the time Imran was not in anyone’s custody. So the way the SC has reversed the clock is very unprecedented. They have given him unprecedented relief: he is to be in SC’s custody but to be placed in a guest house at the government’s expense.”
On being asked why the SC would try to do that, Muneeb says: “The only reason is to save him from an arrest that could have been conducted in any other case. They didn’t let him go to the residence because they wanted to protect him.”
Lawyer Waqqas Mir says that the Supreme Court “applied a well-recognized legal protection that those who surrender themselves before a court of law to seek judicial relief won’t be arrested in court premises. The result is encouraging in that the SC asserted its role as a protector of a citizen’s rights”. Mir is mindful to add that “the fact that many citizens unlawfully detained don’t receive such indulgence underlines the need for courts to be consistent in their approach”.
Constitutional lawyer Aaminah Qadir calls Thursday’s proceedings in the SC “a big win for the judiciary and the people of Pakistan for justice being upheld.”
Muneeb Farooq agrees and adds that “Although the IHC had declared [Imran’s arrest] legal, one can say it was conducted in a very unconventional way and was more of a message than an arrest. The SC’s order declaring the arrest illegal was expected and the right thing to do.” He does feel though that “the kind of pleasantries exchanged between CJP Bandial [and Imran] and the way [the CJP] seemed overwhelmed with Imran’s presence before the court was unbecoming of a chief justice”.For Lawyer Abdul Moiz Jaferii, the “Supreme Court was correct to intervene in the farce that was Imran Khan’s arrest and the horrible optics generated after the Rangers stampeded through the Islamabad High Court. It was refreshing to see the bench include Justice Minallah -- although ideally it should have had even more of the judges considered independent.”
Lawyer Jahanzeb Sukhera has welcomed the SC’s Thursday verdict on two counts: one, “it has the capacity to change the course of events so that further destruction, loss of life and chaos is avoided.” And second, “the court appears to have expanded the bounds of law relating to arrests which will benefit ordinary citizens in the future. Prior to this case, a person being arrested around the court premises was not objectionable unless that person was there to attend bail proceedings in the case they were arrested in. Now, a person coming to court premises to file his case can also not be arrested. This expands the right to access to justice.”
With Imran Khan due in the IHC today, as per the SC’s order, what can possibly happen to the question of validity of the arrest? Waqqas Mir explains that the previous arrest [Tuesday’s] “can’t be declared legal now since the SC has weighed in with its ruling. Of course, the SC has only said the manner of execution of the arrest warrant was illegal. The charges and the case remain and so does the opportunity to arrest Imran again, depending of course on what relief, if any, the Islamabad High Court extends to him.”
This is explained further by Aaminah Qadir: “The Supreme Court is commenting on the manner of the arrest and not the matter of the warrant.”
Sukhera says that “It is important to understand what the case before the Supreme Court was. The court has only examined the manner in which the arrest was made and declared that to be illegal. The Supreme Court has restrained itself from commenting on whether NAB can validly arrest Khan and has required him to go to the IHC tomorrow to have that determined. The IHC will now see if the arrest warrants comply with law and IK can be arrested pursuant to them.”
There has been extensive talk on whether Imran can be arrested again -- whether in the same case or in some new case today. Speaking to the possibility of that, Waqqas Mir says that “If the Islamabad High Court doesn’t extend relief to Imran, and he doesn’t get a pre-arrest bail from the Accountability Court, he may well be arrested in this case. Having said that, if he is charged with something else he hasn’t foreseen or has knowledge of, he may well be arrested on those charges.”
Jaferii, however, feels that “The SC has in a way afforded protective bail to Imran and directed him to go to the relevant competent court so that he can apply for bail. The IHC did not consider his application for bail, which he was supposedly there to swear. The IhC simply considered the method of his arrest and held it to be legal -- while also bizarrely calling it contemptuous and then asking, of all people, the police and the interior secretary to explain their contempt.”
The IHC will not be looking at the arrest, says Sukhera. “That issue has been decided by the Supreme Court. The IHC will be concerned with the warrants and whether they are legal. If the IHC decides that the warrants are valid, it may very well allow Khan’s arrest tomorrow.” He feels that what is more important now is for Imran to be “mindful of the fresh terrorism cases he has been implicated in regarding the violent protests of the last few days. Even if he gets bail in the Al Qadir case [today], he can still be arrested in the fresh cases till such time he gets bail in them.”
Qadir adds that: “The IHC will not be deciding on the process of the arrest but on the substance of the case NAB has. If the court finds that NAB charges do not stand up to scrutiny, then Imran can be released. But if they find enough merit in the case and he needs to be held during investigation that is also a possibility. “ She is clear though that “the police cannot arrest him in the case if the IHC finds that the case in itself does not stand up to scrutiny. In another case, if they manage to arrest him in a place that is not the court, they can.”
About the case itself, Mir says that since “NAB isn’t exactly the flag-bearer for quality investigations. And we don’t know the full extent of the evidence they have against Imran. His main goal will be to avoid being behind bars and to contest the charges as a free man. Another arrest though is something he should be prepared for. NAB has been a tool for political victimization under Imran’s administration too. A legal battle with NAB is always a constantly changing chess-board.”
