Phantom of Liberty

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Abuzar Salman Khan Niazi

Celebrated American Jurist Oliver Wendell Holmes observed, “Life of law is not logic rather experience.” Essentially, Holmes proposed that judicial reasoning must be done on the touchstone of pragmatic realism as the same often leads to the development of jurisprudence. Like all principles evolved by man for the modulation, control and regulation of the social order, the legal principles must adapt to changing needs of society. Thus, judicial conscience must continuously evolve rules, which are more responsive to the changed social milieu.
The Holmesian principle is not an alien concept in Pakistan’sjudicial world. Recently, Islamabad High Court granted”Omnibus Bails” to Pakistan Tehreek Insaf (PTI) leadership in cases where petitioners were unaware of the number and nature of cases registered against them. Ordinarily, this is an unusual relief. However, keeping in mind, the way the power to issue Detention Orders (under Maintenance of Public OrderOrdinance, 1960) is being continually abused and secret FIRs are being registered (followed by arbitrary arrests), such relief seems perfectly reasonable, judicious and stands justified.
Despite the fact that courts are innovative and practical in granting relief, the state instrumentalities have found ways to, directly or indirectly, defy the orders. The generous and uncommon grant of omnibus bail has failed to restrain the state instrumentalities. They kept on re-arresting the bailed-out persons on one pretext or another. The situation has become so disconcerting that at one point, Justice Mian Gul Aurangzeb of Islamabad High Court derisively remarked, “They will not release you until you do a press conference,” whilst hearing a petition challenging detention orders of PTI leader Asad Umar.
In our legal parlance, the only way to secure liberty (after arrest) is through bail. It is trite law in Pakistan that the grant of bail in bailable offences is a right of the accused while in non-bailable offences it is the discretion of the judge. Moreover, section 497, Cr.P.C. categorizes non-bailable offences into two categories i.e. (i) offences punishable with imprisonment for less than ten years, and (ii) offences punishable with death, imprisonment of life or imprisonment for ten years. For the first category, the grant of bail is a rule and refusal an exception, thus, bail will be declined only in exceptional cases, for instance, (a) where there is the likelihood of the absconding of the accused;(b) where there is the apprehension of the accused tampering with the prosecution evidence;(c) where there is a danger of the offence being repeated if the accused is released on bail; and (d) whore the accused is a previous convict. For the second category, the fate of an accused depends on the circumstances of each case. Where the prosecution satisfies the court that there are “reasonable grounds” to believe that the accused has committed the crime and it is not a case of further inquiry, the court is bound to refuse the bail.
Thus, the Jurisprudence on securing liberty (bail) is settled and almost every lawyer in Pakistan is cognizant of its conditionalities. However, through judicial or legislative interventions, such requirements may evolve and change with time to be more responsive to changing social realities. Nevertheless, the executive branch of the state, whilst usurping the role of judiciary and parliament, has deemed it as their solemn obligation to utilize Holmesian aphorism and modify the law on securing liberty to an extent that it no longer remains law but rather becomes a collection of absurd wishes.
To secure bail and prevent oneself from further arrest, the law has no role to play. Only, three new conditions need to be fulfilled. Firstly, booking a middle seat in the National or Provincial Press Club; Secondly, announcement of disassociation from PTI and Third, quitting politics for good. Such bail may be temporary/interim or contingent. Chances are that it may be revoked arbitrarily or on the occurrence of certain events. Therefore, to secure permanent liberty in the form of confirmed bail, one has to categorically announce that PTI is working against the integrity and security of Pakistan. Another interesting and tantalizing feature of such bail is that the same is not Omnibus but rather Omnibus Familia meaning it will also prevent arbitrary arrests and humiliation of family members.
The greater tragedy is not the invention of bizarre requirements, alien to law, for the grant of liberty rather it is the erosion of the authority of our superior judiciary. The Judiciary, which is commanded under the Constitution to keep a check on excesses of the executive, has become irrelevant. Prima facie, the middle chair of the National Press Club is more powerful and effective than the chair of the Chief Justice of Pakistan. Liberty of the individuals is one of the most important fundamental rights guaranteed by the Constitution, however, it is pipedream. The Constitution tasks courts to jealously safeguard the liberty of individuals but the judiciary appears to be helpless, it has run out of options to prevent abuse of executive powers in the form of recurring detentions and multiple prosecutions. Inopportunely, circumstances have compelled even the judges to admit that the only way to secure liberty is through a press conference.
Grant of liberty in such a manner is suited for an arrangement where whims prevail, ideally a constitution less and totalitarian state. As depriving a person and his family of liberty if he is not altering his political loyalties is a road where the only destination is tyranny. Such an inglorious trade of liberty testifies to the fact that the Constitution is being held hostage to dismantle a political party.