Weighing Model Town report against legal strategies
The purpose is mostly to do with offloading political pressure
The writer is a lawyer, Chevening scholar, with experience in policy framework, litigation, judicial interpretation and legal matters. You can reach him at hyshah1@gmail.com
The Baqir Najfi report is likely to hit the headlines again, and create serious ripples on the political scene in the coming months. Political commentators and pundits have long since the inception of the Baqir Najfi commission, pondered upon the aftermath of the final report but its importance and significance is still misplaced, if not mistaken. It is therefore important to understand if the commission report has the important elements to make it legally potent and in so doing will the report rope in the chief executive of the province for the Model Town carnage?
Is the commission report lethal for the chief minister and his aide Rana Sanaullah? Will the report force the province’s chief executive to resign amidst protests to do so? Will the protest and the Baqir Najfi report produce sufficient moral legal strength to unseat the chief minister? To begin the most important aspect of the report is to understand Baqir Najfi commission report’s weight and significance.
Point one. There is a marked and clear distinction between an “inquiry commission” and an “investigation”.
Point two. For the sake of simplicity, in any criminal trial which is what the Model Town carnage is eventually going to shape into, the investigation is carried out by the police. Investigation in a legal proceeding is different from an inquiry or commission’s findings.
Point three: This report is not an investigation rather it can be treated more of a “fact finding commission” henceforth this will not replace the proper investigation process. If any legal mind will want this report to be part of the investigation, it will be overshadowed by a police investigation and will not be a well-advised legal strategy from the Pakistan Awami Tehreek’s point of view.
Point four. The report leaves unanswered questions and clues for someone else to find out. The clues or incomplete report, or clues like which themselves need further investigation or inquiry, only helps strengthen the case of the accused.
Point five. Unlike the media frenzy on late-night talk shows, the murder trial will resume in the court of a sessions judge which is the appropriate forum. The trial judge is not going to be swayed by political sentiments instead he will rely on hard evidence submitted and gathered through a proper police investigation and not from a commission’s findings. The commission will be aired on talk shows but it will carry little weightage in the trial.
However, the fate of the report is not going to end here. Its role in the trial will have to undergo one other formidable test as well. The inquiry commission’s finding cannot be presented in the court as evidence unless the court accepts it as an “expert’s opinion” or unless it is cross-examined by defence lawyers. Let me make it simple. In order to be admitted as an important piece of evidence, the honourable judge of the high court who headed the commission has to stand and face cross-examination — which was seldom done in the past. Without this aspect the report will have little or no legal standing in the criminal trial in the court of a district judge. Of course it would be interesting to watch if the case travels to the superior courts and if they decide to accept the report or any of its contents. Once again, as stressed above, the report which leaves many questions unanswered and leaves several clues instead should have asserted more strongly and made its records potent for the case to proceed it to the superior courts.
Not dwelling much into legal jargon, in simple terms the commission’s findings are not a substitute for a proper police investigation in the matter. Which brings us to the two most important questions: Why have a commission then? What would be Shahbaz Sharif’s legal team’s strategy from here onwards?
As to why the commission was constituted if the entire process is to be investigated by the police? The answer to this question lies in the way commissions were constituted under the Commission Act of 1956. The purpose is mostly to do with offloading political pressure and pacifying public anxiety if not managing their opinion. That is exactly why the government chose to make one such commission, because it does little legal damage and instead shifts the entire focus from a court of sessions towards “ostentatious” media loved commissions.
The second-most important aspect — what is going to be different in the police investigation if the commission is not going to be referred during the trial? The answer to the second question is self-defeating as how can a police investigation and the outcome can ever be termed “fair” and “just” especially since the police led the massacre and allegedly allowed by the chief executive or his law minister, both of whom are the main accused in the case? PAT lawyers or those representing the victims will focus and try to either involve courts or target the investigation report directly by requesting it to be placed under an independent authority other than the police itself. If that is so, the Baqir Najfi report will be heard quoted in courtrooms and in the media much more than you are expecting. I would if I were part of the PAT legal team. As a lawyer on the defence side, I would have let them and focus too much on the commission report without realising that it must be read in collaboration with other evidences. With passage of time, the trial is being delayed and attacking “minor issues” distracting the PAT lawyers.
So, can the report or the trial seek to remove the chief minister of Punjab from office? There is no previous precedent when the chief executive of a province under investigation could be asked to step down, however there could be other repercussions. From a political angle, this could have a devastating impact on the Sharifs.
Published in The Express Tribune, January 19th, 2018.
Is the commission report lethal for the chief minister and his aide Rana Sanaullah? Will the report force the province’s chief executive to resign amidst protests to do so? Will the protest and the Baqir Najfi report produce sufficient moral legal strength to unseat the chief minister? To begin the most important aspect of the report is to understand Baqir Najfi commission report’s weight and significance.
Point one. There is a marked and clear distinction between an “inquiry commission” and an “investigation”.
Point two. For the sake of simplicity, in any criminal trial which is what the Model Town carnage is eventually going to shape into, the investigation is carried out by the police. Investigation in a legal proceeding is different from an inquiry or commission’s findings.
Point three: This report is not an investigation rather it can be treated more of a “fact finding commission” henceforth this will not replace the proper investigation process. If any legal mind will want this report to be part of the investigation, it will be overshadowed by a police investigation and will not be a well-advised legal strategy from the Pakistan Awami Tehreek’s point of view.
Point four. The report leaves unanswered questions and clues for someone else to find out. The clues or incomplete report, or clues like which themselves need further investigation or inquiry, only helps strengthen the case of the accused.
Point five. Unlike the media frenzy on late-night talk shows, the murder trial will resume in the court of a sessions judge which is the appropriate forum. The trial judge is not going to be swayed by political sentiments instead he will rely on hard evidence submitted and gathered through a proper police investigation and not from a commission’s findings. The commission will be aired on talk shows but it will carry little weightage in the trial.
However, the fate of the report is not going to end here. Its role in the trial will have to undergo one other formidable test as well. The inquiry commission’s finding cannot be presented in the court as evidence unless the court accepts it as an “expert’s opinion” or unless it is cross-examined by defence lawyers. Let me make it simple. In order to be admitted as an important piece of evidence, the honourable judge of the high court who headed the commission has to stand and face cross-examination — which was seldom done in the past. Without this aspect the report will have little or no legal standing in the criminal trial in the court of a district judge. Of course it would be interesting to watch if the case travels to the superior courts and if they decide to accept the report or any of its contents. Once again, as stressed above, the report which leaves many questions unanswered and leaves several clues instead should have asserted more strongly and made its records potent for the case to proceed it to the superior courts.
Not dwelling much into legal jargon, in simple terms the commission’s findings are not a substitute for a proper police investigation in the matter. Which brings us to the two most important questions: Why have a commission then? What would be Shahbaz Sharif’s legal team’s strategy from here onwards?
As to why the commission was constituted if the entire process is to be investigated by the police? The answer to this question lies in the way commissions were constituted under the Commission Act of 1956. The purpose is mostly to do with offloading political pressure and pacifying public anxiety if not managing their opinion. That is exactly why the government chose to make one such commission, because it does little legal damage and instead shifts the entire focus from a court of sessions towards “ostentatious” media loved commissions.
The second-most important aspect — what is going to be different in the police investigation if the commission is not going to be referred during the trial? The answer to the second question is self-defeating as how can a police investigation and the outcome can ever be termed “fair” and “just” especially since the police led the massacre and allegedly allowed by the chief executive or his law minister, both of whom are the main accused in the case? PAT lawyers or those representing the victims will focus and try to either involve courts or target the investigation report directly by requesting it to be placed under an independent authority other than the police itself. If that is so, the Baqir Najfi report will be heard quoted in courtrooms and in the media much more than you are expecting. I would if I were part of the PAT legal team. As a lawyer on the defence side, I would have let them and focus too much on the commission report without realising that it must be read in collaboration with other evidences. With passage of time, the trial is being delayed and attacking “minor issues” distracting the PAT lawyers.
So, can the report or the trial seek to remove the chief minister of Punjab from office? There is no previous precedent when the chief executive of a province under investigation could be asked to step down, however there could be other repercussions. From a political angle, this could have a devastating impact on the Sharifs.
Published in The Express Tribune, January 19th, 2018.