Indemnity Bond – A New Law Invented By PTI Govt
It is in the government’s own best interests to do everything it can to keep Nawaz Sharif healthy, argues Awais Babar.
It may seem to the incumbent government that its days will get better if Nawaz Sharif goes out of the picture. In order to attain this end, the government has done whatever it could from threatening to remove the AC from Nawaz Sharif’s cell to arresting him while he was already serving a sentence. In addition, NAB has been misemployed to exert whatever pressure possible to crop the picture; its Chairman put in an awkward position since the leaked video scandal. Now, despite having gotten the bail from Lahore and Islamabad High Courts, the government continues to scourge PML-N by hampering the departure of its leader to UK knowing that his health is deteriorating by the day.
It is not about surety bonds, nor is it about accountability, humanity – no chance. “This permission will be subject to Nawaz Sharif or Shehbaz Sharif submitting an indemnity bond to the tune of roughly Rs7billion to Rs7.5 billion, to the satisfaction of additional secretary to the Ministry of Interior.”, Law Minister Farogh Naseem iterated in a press conference on 13 Nov. There is no such thing as indemnity bond in Criminal Law.
The indemnity bond the worthy Law Minister Barrister Farogh Naseem referred to arises out of the contract law which is an intrinsic part of Civil Law. Therefore, the government’s demand is laughable to say the least.
Indemnity and guarantee are the two kind of contracts governed by Contract law in which two or more parties secure themselves against a loss or other financial burden. It is a sort of preparation for who is going to do what if so and so unfortunate event happened. A simple example of indemnity is the insurance contract in which the insurance company promises to compensate Mr. X for the losses that may occur to him in lieu of premiums that he will pay to the company. In addition, an ineradicable part of contract law is that for a contract to be valid both parties will give something of value to each other, which in legal language is called consideration.
Hence, if a jeweller gives me a ring of 1 lac for free, it is not a valid sale agreement between us because I have not paid consideration (something of value). Anyway, as humorous as the minister’s press conference was, nevertheless let us attempt to apply it to the case of Nawaz Sharif and ram civil law into criminal. This would be the toughest write-up for the author as he has never had to make himself and his readers understand by making hypothetical changes to the law as done by the government.
There are two parties; state and Nawaz Sharif. So by asking for an indemnity bond the law minister is literally asking Nawaz Sharif to give an undertaking against himself that if he failed to return from UK he will compensate the losses that will occur due to his own absoncsion. Who will calculate these losses? This is so ridiculous, what would determine as a ‘loss’ in the absence of any judgement convicting Nawaz Sharif and holding him liable for a sum of money? Allegations are not a determinant of loss. This would be commensurate to a bail bond in which the accused himself may be instructed to give a guarantee against himself. Compare this to an insurance agreement where losses are easily calculable.
Likewise, the minister also gave another option to the Sharifs. That if Nawaz Sharif cannot give the undertaking, then someone else should take this responsibility and specifically referred towards Shahbaz Shareef to be the one. Again, this has no place in Criminal law whatsoever.
If Shahbaz Sharif is to take the responsibility for Nawaz Sharif, such arrangement would be analogous to guarantee contracts. In this type of contract, there are three parties whereby A promises B that if C did something bad, A will compensate B in such a situation. So Shahbaz Sharif shall be taking the responsibility that if Nawaz Sharif fails to return to Pakistan then he will compensate the state for the losses it incurs. Hence, one contract will be between Shahbaz Sharif and state, one between Nawaz Sharif and state, whereas the third between Shahbaz Sharif and Nawaz Sharif. The intrinsic factor of consideration (give & take between parties) is absent in all these contracts.
What would Nawaz Sharif offer to his brother in return for the guarantee he will give? What Shahbaz Sharif and state shall offer to each other in return for this arrangement? What can an accused offer to state in a criminal proceeding?
Once a man is on bail, his obligation is towards court only not towards the government. Bail is actually a promise to the court (not the government) by the accused that he shall surrender himself to court whenever required and on this promise one is granted bail. The courts have made their decisions.
Majority are calling this latest teaser as a political stunt. If it is a stunt at all, it is a really bad one and bound to go wrong legally, politically and morally. It is also not clear whether it is the government’s own decision to show restraint in this matter or the kingpin’s. But regardless of this, if the present regime wants to survive it must keep Nawaz Sharif alive or else who knows what is going to happen in a country where most do not have much to look forward to. If something happens to Nawaz, insurrection may fall heavily on PTI. Like it or not, it is in the government’s own best interests to do everything it can to keep Nawaz Sharif healthy.