Comment: Politics of the FIR

Published August 30, 2014
Is Qadri not playing by the rules in spreading the canvass so broad, and accusing people who cannot possibly have a role in the Model Town carnage?
Is Qadri not playing by the rules in spreading the canvass so broad, and accusing people who cannot possibly have a role in the Model Town carnage?

Amongst all the demands and deadlines being thrown around in the Red Zone, just one might have the requisite legal bite. Dr Qadri’s demand for a first information report (FIR) to be registered for 14 of his workers shot dead, and several injured is where the legal high ground rests with the Allama. People have been murdered and now the heirs or even the Allama are entitled to not only demand a FIR but also to have it registered.

There has been some talk of immunity of the prime minister and the chief minister from being nominated in a criminal case. The law does not bear this position out. The applicable legal provision is the previously much discussed Article 248 and the relevant bits read:


Article 248

Protection to President, Governor, Minister, etc.

(1)

The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions:

Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.”

There are additional safeguards for the President and the Governors, like

“2)

No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.”


However, the immunity of the prime minister, members of the cabinet (both provincial and federal) and chief minister only extends to acts done in exercise of powers and performance of official functions. It will be ridiculous and a completely untenable position for the government to argue that the Model Town shootings happened as a consequence of official functions. Even then, the immunity from criminal proceedings extends only to the president and the governors. Immunity is not an automatic defense, it becomes operative only once invoked (as we have most famously discovered in the NRO case). Hence, in short, the FIR has to be registered.

Does that mean that his grace, Qadri is acting in complete good faith? Short answer; no. The content of the FIR is political, and has as nominated accused not only the prime minister and chief minister, but also the provincial law minister, the federal and state ministers for water and power, the federal minister for railways and the federal information minister; conspicuous by absence is the federal interior minister (the person, in theory responsible for the law and order in the country).


Mian sahibaan are scared of one precedent in particular. The PML-N members are too scared to even say it. The grimmest example of an FIR gone wrong, the Zulfiqar Ali Bhutto case.


One can only speculate, however, all those nominated are those who are on the wrong side of the “boys”. It does not mean that the “boys” have anything to do with the FIR, however it probably does mean that Qadri wants to be on the right side of the “boys”.

The case of Mian Shahbaz Sharif and provincial functionaries is distinguishable, and he will have some explaining to do, probably at the trial now. One could volunteer free advice to Mian the younger; take this very, very seriously, it is 14 counts of murder. Resignation is not the worst that can happen.

The insistence on section 7 of the Anti-Terrorism Act, 1997 is to ensure that the heirs of the victims do not compromise. Since while section 302 of the Pakistan Penal Code is “compoundable” i.e. the heirs of the deceased can pardon the accused; 7 ATA is non-compoundable.

Is Qadri not playing by the rules in spreading the canvass so broad, and accusing people who cannot possibly have a role in the Model Town carnage? Problem; there are no rules in the Punjab FIR world. The usual practice is to name every known close family member of the real accused, to cast the net as wide as possible. Rivalries are not individual, they are clan based, or as in this case political party based. The words “Namaloom afrad” are not peculiar to Karachi. Every police station in Punjab has several, if not hundreds of FIRs with one or few identified accused and the rest being “unidentified”. The wisdom (cunning) behind the practice is that anyone who seems too keen to pursue the case can be dealt with by being “identified” subsequently.

The FIR is the preferred way to slight, to get back and often to victimise. Late Chaudhary Zahoor Elahi of Gujrat was once arrested on the basis of being an accused in a buffalo theft case (an obviously false case). The “criminalisation” of politics i.e. political brokerage through a criminal case is the modus operandi of military and civilian rulers from Ayub Khan’s electoral body disqualification Order (EBDO) to General Musharraf’s NAB. The brothers Sharif are no strangers to this model. Some might remember the FIRs for water and electricity theft against elected members of the Parliament in Mian Nawaz Sharif’s last regime. The only exception was the Zardari government, perhaps because then president Zardari had been on the receiving end of the FIR game for too long, and perhaps developed a principled position against it.

Mian sahibaan are scared of one precedent in particular. The PML-N members are too scared to even say it. The grimmest example of an FIR gone wrong, the Zulfiqar Ali Bhutto case. The FIR even if dormant, can and most probably will be used against you, when things go wrong, and if you are the prime minister of the country, the betting odds are on things going wrong at some point.

This battle is not merely legal; it is also political. The FIR has to be registered against all those nominated, and the only choice for them is to join the investigation and have themselves acquitted; this legally is an unexceptionable position. Equally without doubt is that the registration of the FIR and the long list of accused is just the Punjab “thana culture” playing out on an amplified, national level (Side point; is the “revolution” not supposed to address that too?) One only hopes that the high drama is not at the expense of justice for the families and the victims of the Model Town tragedy.

The writer is a lawyer.

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