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'Balancing act': Legal eagles on SC declaring Imran's arrest illegal

"Deciding to keep Imran within police lines is more of a transitional order than an affirmative declaration."
Published May 11, 2023

The Supreme Court on Thursday ordered the “immediate release” of PTI chief Imran Khan, terming his arrest less than 72 hours ago unlawful, while also directing the former prime minister to appear before the Islamabad High Court (IHC) the next day.

Imran had been arrested from inside the IHC premises on Tuesday, where he had appeared for the hearings of two unrelated cases. The arrest was made by Rangers personnel on the directives of NAB in the Al Qadir Trust case.

While the IHC had also taken notice of the arrest, it had subsequently declared it legal, but the SC on Thursday decided otherwise.

Here is what legal minds think about the SC's orders.

'Necessary intervention'

"The arrest was high-handed, the optics were horrible and the reasoning with which the IHC declared it legal was weak," said lawyer Abdul Moiz Jaferii.

"This was a necessary intervention, and it was good to see Justice Minallah on the bench which called a spade a spade.

Jaferii added that the inquiry could not proceed without taking on Malik Riaz as the principal accused. "Fifty million of the pounds Malik Riaz connived with Shehzad Akbar to pay back to himself were related to 1 Hyde Park Place, which Malik Riaz bought from Hassan Nawaz," he said.

"If this was about the law, everyone in that chain of events would have been questioned.

"The fact that the buck begins and stops with Imran Khan shows that this case was always as much about politics as back when Imran Khan and Gen Faiz Hameed would harass Shahid Khaqan Abbasi, and leave them in the hands of the world's most incompetent hatchet job that is the NAB."

"The NAB’s incompetence now stretches itself to the last three serving prime ministers," said Jaferii, adding that "letting off the incumbent prime minister for the money laundering charges against him are further evidence of their incompetence".

'Hardly surprising'

"The Supreme Court has previously, in cases including that of Ali Moosa Gilani, declared a person’s arrest from the court’s premises to be illegal," recalled lawyer Mirza Moiz Baig.

"In Gilani’s case, the court deprecated the accused’s arrest after he had been arrested from the court’s entrance while approaching it to seek pre-arrest bail. This view is consistent with the principle that a person cannot be penalised for surrendering himself to the law.

"While the NAB chairman may have some grounds to issue a warrant of arrest, arresting Imran Khan from the court’s premises is inconsistent with the precedents laid down by the Supreme Court," said Baig, adding that while the Islamabad High Court’s decision acknowledged that the arrest from court premises was improper, its view that the arrest was nonetheless legal departed from the law laid down by the Supreme Court and set a dangerous precedent.

"The Supreme Court’s decision to declare the arrest unlawful is hardly surprising."

'Unprecedented relief'

Meanwhile, lawyer Usama Khawar, was of the opinion that the SC order for Imran Khan’s immediate release in the Al-Qadir Trust case "is unprecedented, not only in the history of the NAB Ordinance but also our entire criminal law jurisprudence, especially, the jurisprudence governing the granting of bail in Pakistan."

According to Khawar, "there does not exist a single precedent in our history where an accused, arrested in a non-bailable offence and whose bail has been rejected by a high court, has ever been released by the Supreme Court within two days of his arrest."

"This is the fastest case of getting post-arrest bail from the Supreme Court in our entire legal history. (It is another matter that the law of bail in Pakistan is archaic, draconian and in immediate need for reform, but it is applicable to everyone.)"

Khawar said that there may, however, be good reason for declaring Imran's arrest illegal, for example, denial of access to justice and the manner of his arrest.

"If the decision is looked at without any political context — who the accused is, what sort of allegations have been levelled against him and the judiciary in recent past — it appears to be a progressive decision, but the context is very important here."

"There have been allegations of special treatment for Imran Khan by the courts and our judicial system, especially by the Supreme Court, during the last six years. This perception undermines the rule of law, impartiality of the Supreme Court and equality before the law," he added.

'Correct and courageous decision'

Lawyer Rida Hosain termed the decision a "correct and courageous one".

"There have been cases in the past where such arrests on court premises have been declared unlawful. The decision sends a strong message to state institutions who often operate with complete and total impunity.

"The message is clear and should have been obvious — you do not get to ransack the court, manhandle court staff and lawyers, and assemble a paramilitary force to arrest an individual who has come to the court.

Hosain added that "anyone who saw the manner in which the arrest was carried out could have safely said it had nothing to do with the law".

"It was a power show which the court has rightly called illegal. It is times such as these that show why it is vital to stand with an independent judiciary."

'Courts are meant to be sanctuaries'

"The Supreme Court spoke of the sanctity of our court premises, which are meant to be sanctuaries," said Barrister Asad Rahim. "In any functioning state, citizens are afforded the liberty to surrender themselves to the law — not be clobbered into submission through batons and broken glass."

"This is also in line with clear-cut precedent that forbids our citizens being arrested from the court, as well as the amended NAB law that has made the organisation’s powers to arrest less arbitrary.

"Deciding to keep Imran within police lines, however, is more of a transitional order than an affirmative declaration. The court has stopped well short of reversing what happened on May 9."

'Balancing act'

For lawyer Basil Nabi Malik, "the arrest itself did appear mala fide, and arresting people from court is certainly an 'access to justice' issue, to which extent, the SC's observations appear to hold muster".

"However, holding the arrest to be invalid and yet not unequivocally releasing him is a quaint reflection of our SC's decision-making process as it stands today — the law figures in its determinations, but isn't perhaps the sole or most important factor in rendering a decision."

"Exigencies of circumstances, and a balancing act, seem to loom large in coming to a conclusion," he added.