Home Opinion Op-Ed How sound is the decision of Nawaz Sharif’s bail? – Saad Rasool

How sound is the decision of Nawaz Sharif’s bail? – Saad Rasool

Bail

On Friday, Mian Muhammad Nawaz Sharif was granted post-arrest bail, “purely on medical grounds”, by the honorable Lahore High Court, in the NAB inquiry relating Chaudhry Sugar Mills (CSM). Simultaneously, the honorable Islamabad High Court has also granted bail to Nawaz Sharif, against his conviction in the Al-Azizia case.

While written orders of the honorable Islamabad High Court are not yet available, judgment of the Lahore High Court, authored by a division bench headed by honorable Justice Ali Baqar Najafi, is categorical in its conclusions about Nawaz Sharif’s health and the relevant law concerning grant of bail in NAB cases. But prior to discussing the specifics of this judgment, it is important to first overview some of the underlying legal principles involved.

At the very outset, it is important to point out that the National Accountability Ordinance, 1999, does not contain any provision relating to grant of bail. In fact, section 9(b) of the NAB ordinance stipulates that “All offences under this Ordinance shall be non-boilable” in nature, and that “no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.” As a result of this provision, individuals accused/convicted of offences falling within the jurisdiction of NAB, cannot apply to the Accountability Court for grant of bail.

In the circumstances, the honorable Court deemed this to be a human rights case where an ailing patient is entitled to the best treatment available on earth but within his reach

However, in “exceptional circumstances”, the accused/convict may invoke the extraordinary jurisdiction of the honorable High Court (under Article 199 of the Constitution) for suspension of sentence or grant of bail. This, for intents and purposes, is an equitable remedy, allowing the courts to do “justice” in the peculiar circumstances of any particular case.

Next, it is important to ascertain what would qualify as “exceptional circumstances”, warranting grant of bail to an individual accused/convicted of NAB offences. Thankfully, in this regard, the honorable Supreme Court of Pakistan has already provided the requisite guidelines. Specifically, in past judgments, including the one through which Nawaz Sharif was granted bail for six weeks, in March of this year, the august Court deliberated the issue of what constitutes “exceptional circumstances” relating to medical ailment.

Specifically, the honorable Supreme Court clarified that, in the absence of an enabling provision in the NAB law, bail on medical grounds could only be granted if continued incarceration would “threaten the life” of the individual in question. Anything short of a ‘life threatening’ circumstance, would not warrant the grant of bail. And that, if the accused/convict can be ‘adequately’ treated, in custody, there would no justification for releasing such person on bail.

Read more: Nawaz Sharif’s bail order 

Within these contours, as settled by the honorable Supreme Court, the honorable Lahore High Court was asked to deliberate on the issue of granting bail to Nawaz Sharif, in light of his multiple medical complications, and specifically on the basis of his dangerously low platelet count.

In this regard, the judgment of the honorable Lahore High Court recounts how Nawaz Sharif has had a history of heart-related complications, for which he has had to undergo at least 8 different procedures between 2002 and 2017. The honorable Court also observed that “the latest test”, conducted by Special Medical Board constituted for Nawaz Sharif, “opined that petitioner’s Arrhythmias could be fatal, therefore, he needed electrophysiological studies in advance EB lab which required backup permanent pacemaker and implantable Cardioverter Defibrillator (ICD).”

Also, report of the 11-member Special Medical Board, dated 23.10.2019, 
carried a “unanimous opinion” that Nawaz Sharif “had severe external existent co-morbid conditions like diabetes mellitus, hypertension, hyperlipidaemia, hyperuraecaemia, chronic renal disease and ischaemic heart disease, the condition of the patient is critical and the current scenario of very low platelet count has added to the seriousness of nature of disease is visible.”

These are not issues that anyone should politicize. You can pause your political differences with Nawaz Sharif for just a moment, and instead sympathize with an ailing man

On court query, head of the Medical Board, Prof. Dr. Mahmood Ayyaz stated: “that the main risk and danger is regarding the rapid decline of platelets to 6000 per microliter.” Furthermore, he informed that Court that “he is of the view that the petitioner must be protected first from external and internal bleeding which also hampered some procedures to be carried out by the Medical Board.” Importantly, the honorable Court observes, that “the medical report was not controverted by Special Prosecutor for NAB or the learned Advocate General Punjab.”

With this admitted medical position on the record, the honorable Court proceeded to apply the law to these circumstances. The honorable Court observed that “law on the grant of bail on the medical ground is well settled now according to which if an accused is suffering from an ailment which is hazardous to his life and that his treatment is not possible within the jail, he should be granted bail after arrest as of right.”

Per the medical reports, the Court clarified “that the condition of the petitioner is very precarious and critical as at present there is no sign of further improvement in platelets despite the best available treatment being extended to him in the last few days.” In the circumstances, the honorable Court deemed this to be a “human rights case” where “an ailing patient is entitled to the best treatment available on earth but within his reach.”

Read more: Guarantee Nawaz’s life if you want to prevent bail, IHC tells Govt

Consequently, following the law laid down by the honorable Supreme Court (e.g. 1997 SCMR 1275) the court asked itself three “pivotal” questions: 1) “Whether the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of Jail”; 2) “Whether specialized treatment is needed”; and 3) “Whether the continuous detention in Jail is likely to affect his capacity or is hazardous to his life.”

Answering these questions, the honorable Court declared that “it is already admitted by the members of the Special Medical Board that petitioner could not be provided proper treatment due to non-availability of necessary equipment, to control the rapid droppage of platelets”. This admission, along with fact that Nawaz Sharif “is of advanced age suffering from serious multiple ailments” led the honorable Court to conclude that Nawaz Sharif’s “bail on medical ground is justified”, in light of precedents laid down by the honorable Supreme Court of Pakistan.

Political biases aside, the judgment of the honorable Lahore High Court is absolutely sound, in terms of established principles of our jurisprudence. Nawaz Sharif is unwell. His health is deteriorating. His treatment has been wanting – at least during the period of his incarceration. And his bail is warranted, under the law.

Read more: Is Nawaz Sharif likely to leave for London?

These are not issues that anyone should politicize. You can pause your political differences with Nawaz Sharif for just a moment, and instead sympathize with an ailing man. If he comes out of his illness, we can resume with the process of subjecting him to rigorous accountability. If, God forbid, he does not survive this illness, then his matters are best left to the hereafter. Either way, the State must show magnanimity in times of individual crisis. And even if magnanimity is not an argument that appeals to the stakeholders, at the very least, our State should avoid having Nawaz Sharif’s blood on its hands.

Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at saad@post.harvard.edu, or Twitter: @Ch_SaadRasool. This article originally appeared at The Nation and has been republished with the author’s permission. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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