ISLAMABAD: The government has notified one-man Broadsheet Commission comprising retired Justice Sheikh Azmat Saeed amid concerns by legal experts about whether the commission would observe the guidelines set by the Islamabad High Court (IHC) as outlined in the sugar commission case.

Also there is growing concern among legal circles how Broadsheet Commission will proceed without giving each affected individual an opportunity of hearing. Will these proceedings become a full-fledged trial as damage to reputations will be involved and whether those who may get affected will have trust and confidence in the retired judge heading the commission?

The commission is likely to reinvestigate scandals and cases tried in local and international courts such as Surrey Palace against the leadership of one opposition party and Hudaibiya Paper Mills and other cases mentioned by UK-based assets recovery firm Broadsheet LLC against the leadership of the other opposition party.

The commission will “identify the incidents and cases relating to assets recovery and legal proceedings pursued by the government of Pakistan since 1990 in foreign jurisdictions”.

One-man commission likely to reinvestigate scandals and cases since 1990

IHC Chief Justice Athar Minallah in the petition filed by sugar mills cartel against the sugar inquiry commission had passed a number of observations in the decision. It expressly provided giving a reasonable opportunity of hearing and an opportunity to produce evidence in defence to a person whose reputation was likely to be prejudiced or if the inquiry was regarding the conduct of a person.

It was further observed that before condemning or criticising a person, he should be afforded a fair opportunity. It was suggested that before making an adverse criticism of someone, the he should be provided with a draft for comments.

It was observed that reputation was an interest attracting protection of the rules of natural justice. The IHC made a distinction between the report being general or specific in nature and observed that “if its report is specific to the character and reputation of an individual, it must inform the individual of the possible findings and give him a chance to answer. It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may ‘destroy, defeat or prejudice a person’s rights, interests or legitimate expectation’”.

The decision also drew a distinction between the scope of inquiry whether narrow or broad and whether specific to the character and reputation of a person. This was further elaborated by referring to the jurisprudence developed by the Supreme Court of Canada relating to the extent of applicability of the principles of natural justice in the context of proceedings of a commission of inquiry. The courts in the jurisdiction of Canada applies the ‘public perception standard’ in order to determine protection under the principles of natural justice. The public perception standard is based on how a finding would be considered by a reasonably informed member of the public to be a determination of criminal or civil liability. However, in the case titled ‘Canada (Attorney General) versus Canada (Commission of Inquiry on the Blood System)’ the Supreme Court of Canada unanimously held that the public perception standard was not a rule of universal application and would be appropriate when a commission was investigating a particular crime and not when the scope of investigation was wider.

It was acknowledged that while conducting public inquiries entailing wider investigation, identification of causes and people responsible could not be avoided or ignored merely because reputations would be harmed. It was affirmed ‘it is inevitable that somewhere along the way, or in a final report, such an inquiry will tarnish reputations and raise questions in the public mind concerning responsibility borne by certain individuals’.

The court held that the narrow public perception test would apply to specific types of commissions and not when the scope is a wider investigation as was in that case, i.e. to examine the blood system after thousands contracted HIV and Hepatitis C from blood and blood products.

There appears to be a judicial consensus that reputational damage will be a relevant factor to consider protection of the principles of procedural fairness when the scope of investigation is regarding a specific crime or individual and in such type of investigation reputational damage could become a relevant factor for protection of procedural fairness.

Published in Dawn, January 31st, 2021