Justice Baqir Najfi report: fatally conclusive?

Model Town incident remains a tragic and painful memory

Hassan Yousaf Shah November 11, 2017
The writer is a lawyer, Chevening Scholar, with experience in policy framework, litigation, judicial interpretation and legal matters. He can be reached at [email protected]

The commission formed under the supervision of Justice Baqir Najfi was supposed to report its findings on the causes of the Model Town carnage and those responsible for it. Although some believe it did exactly that, the government chose not to publish the report on its own account.

The Model Town incident remains a tragic and painful memory and though some years have passed since the police mowed down over a dozen protesters and seriously injured several others, it cannot be forgotten.

The government has challenged the publication of the report before a larger bench of the Lahore High Court following a decision in favour of its release. It is likely that a decision will come through soon. It is relevant then perhaps to consider what the future scenario will be. As a practising lawyer, there are signals, arguments and trends which can help gauge the mood of the courts (with a margin of error of course), and also how things will fare for everybody concerned. But as the matter is still sub judice, it is therefore best not to comment on the decision.

So instead we can discuss the political and legal implications keeping in view both the scenarios, ie, if the decision is in favour of or is not in favour of the Punjab government.

Legal damage and repercussions

Under normal circumstances the government is bound to appoint a commission and also set its terms of reference. The outcome in that case will be determined by the terms of reference or the boundaries set forth.

It would not be farfetched to assume that the questions or boundaries set by the government were not comprehensive or conclusive in nature. In short, the government did not want the commission to probe too deep or look into areas which could later be “fatal” for it. However, one of the reason many analysts feel the government is worried over the outcome of the commission report is that the report conclusion travels well into the domain of determining the link, and into the chain of command.

Let us create a hypothetical situation or case. For the sake of argument, let us assume that the report has determined with some certainty the chain of command and understood that the chief executive knew the consequences of the orders which went out, if so then the report may totally change its role and impact. This if true, may have serious consequences on the FIR and investigation and may quite easily rope in the chief executive of the province into a long detailed investigation.

However, an investigation is different from the judicial proceedings of a case. This is where discretion is advised because investigation and judicial proceedings are two different and distinct processes in a trial. In short, the report can have serious implications and can actually shift the blame on to the chief executive. Of course all this is hypothetical.

Report may be fatal from other angles

There is a larger legal lacuna than this which being that the inquiry commission’s finding cannot be presented in the court as evidence. In order to do so, the high court judge who headed the commission himself has to be put up in the stand and made to face cross-examination — something quite unusual and seldom done in the past. Hence forth the important aspect of the debate rests with the fact that what is the legal weightage of the commission report then? The issue does not end here.

There is another aspect of the report which could have legal repercussions for the Pakistan Muslim League-Nawaz which being that the report may seek to remove the chief minister from office. There is no previous precedent when a chief executive of a province under investigation could be asked to step down, however there could be other repercussions. Firstly, from a political angle, this could have a devastating impact on the Sharifs. Secondly, the report, if adverse, for the Sharifs may result in an ineffective structure in Punjab. Needless to say that the moral ground to influence the bureaucracy and policies will be reduced to a level which may also leave the chief executive “ineffective”. This means that many who were in the government or bureaucracy witness to the event may actually decide to speak up or decide not to interfere with the investigations at all.

Thirdly, the outcome of the report, and its contents may most likely be relied in the trial court proceedings. This means that evidence which was collected will be shared by a report which was composed and construed by a judge of the high court not by an investigation officer of a lower rank. This also means that Punjab political machinery or the police may not be able to “meddle” much during the investigation process. This also has deep connotations for the entire episode as well. Because a commission report has yet to be presented as evidence in a trial proceeding, this could be fatal for the Sharifs.

The purpose of this article is not meant to discredit a popular chief minister but is meant to highlight the possible risks and outcomes of the Model Town inquiry. The interesting point being that the role of a commission report is yet to be determined as to what role it will lead in the trial proceedings and how significant the courts feel this report is all going to determine the chief minister’s fate.

Is the report going to make a political impact more than a legal impact, the above arguments in the article is suggesting a bit of both. The most important point being that a commission, as comprehensive as it may be, is not a substitute for a proper legal trial. As a jurist and legal expert, it is unfair to hold media trials, or conclude that a commission’s findings can sentence someone. In short, the Model Town case is far from over and the commission report however politically damaging or perhaps not damaging for the Sharifs may legally implicate, and carry beyond the investigation process.

Published in The Express Tribune, November 11th, 2017.

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