Was
there a judicial inquiry in the US after 9/11?
M.
Moazzam Husain
No words are enough
to express the shock and agony of the horrific and alarming incident
that occurred in the afternoon of August 21 in the Awami League rally
organised in protest of emerging culture of holocaust by bomb blasts.
The whole nation stood stunned and cross-fixed at the incident. The
international community immediately responded by visiting and/or expressing
their concern and disapproval to the incident. For the first time a
kind of shift in the attitude of the Govt. towards the major opposition
political party is noticed.
The
ominous message sent through the nature and magnitude of the occurrence
might have struck realisation in the Govt. that something much more
than its narrow political mud-slinging-interest is at stake.
Government this
time seems to be a bit up and doing and trying to tune its voice with
the shock and concern shared by the people. And in keeping with the
popular demand of detecting the perpetrators Govt. is seemingly taking
different steps to do something about it. Among the steps of different
detection-mechanisms pressed in service declaring a Judicial Inquiry
Commission comprising a senior judge of the Supreme court is one.
My intention here
is not to address the complicated question of sabotage by consistent
bomb-explosions intended apparently to shake the foundation of democracy,
rule of law, progress and freedom of thought and conscience which is
a complex question to be proved into by investigating agencies.
The news of constituting
a judicial inquiry commission with a view to inquiring and unfolding
the mystery and sources of the bombing and to report to the Government
within three weeks impelled me to express my view about whatever little
I understand the legal and factual background of 'inquiry' for that
matter 'commission of inquiry', their nature, inherent limitations and
the area of application contemplated by law.
By a plain reading
of the laws relating to inquiry or commission of inquiry at least I
could not satisfy myself that they provide mechanisms for finding clues
and detecting sources of deep rooted and organised crime of the present
kind. Rather law is consistent in using the machinery of 'inquiry' for
ascertaining the truth or falsehood of a particular kind of complaint
in its qualified sense.
When the offences
alleged claim comprehensive and indepth inquiry law provides for investigation.
In view of the difference in connotation of the two words they are found
to phrased in the Code of Criminal Procedure, Shortly, "the Code"
disjunctively as 'inquiry or investigation' to be applied according
as the circumstances require. The commission of inquiry is also meant
for ''making an inquiry into any definite matter of public importance"
and performing such functions and within such time as may be specified
in the notification of appointment suggesting that it is applicable
to selected matters of public importance for a report within a certain
time. Law does not mean inquiry of any kind to be used for demystifying
the causes and detecting the sources of deeply organised crimes like
terrorism, sabotage, killings etc committed secretly and mysteriously.
Inquiry is confined to ascertaining truth or falsehood of any ordinary
complaint, issues, or to any definite matter of public importance parties
to which are usually known or apparently open through a kind of judicial
process i.e., summoning witnesses, examining them on oath and giving
a report within a definite time frame. It has nothing to do with a serious
probe into and detecting the sources and perpetrators of secret and
mysterious crimes. For the detection of such secret and mysterious crimes
law has earnestly developed investigation mechanisms equipped with specialised
skill, higher training, expertise in technical branches of knowledge
on the whole a co-ordinated interdisciplinary pursuit directed against
objectives to be achieved irrespective of any time frame and co-extensive
with the length and breadth of the network of crime itself.
The first reaction
I had on the sight of the news is -it is an eye wash again for political
gain. Second, if it is honest, what is the rationale in it? And the
third, if the Supreme Court Bar Association itself approves a judicial
inquiry (it demanded constituting judicial inquiry commission by more
senior judges) in such circumstances with modifications only, am I going
wrong with my conception so far gathered in my humble way.
This article is
intended to explore in my humble knowledge the answers to them by reference
to the law and limitations of such a commission in reaching the objectives
in cases of organised crime shrouded with mystery.
In an earlier article
published in the Daily Star on December, 28, 2003 I tried to show the
difference between 'inquiry' and 'investigation' and emptiness of judicial
inquiry made by magistrates in offences shrouded with mystery. And how
those inquires routinely given regardless of the nature of the case
are proving counterproductive and in effect defeating the cause of justice.
Taking cue from the same reasoning I would try to focus on the efficacy
of a 'judicial inquiry commission' constituted in a bid to probe into
the clues and sources of the organised crime like devastating grenade
charges of 21st instant.
Since the questions
of 'inquiry', 'investigation' and 'commission of inquiry' are basically
questions of law we cannot but revert to relevant provisions of law
though it would be a bit too technical for the news paper. The Code
of Criminal Procedure in its Sections 4 defines 'inquiry' as 'including
every inquiry other than a trial conducted under the Code by a Magistrate
or court'. The word 'inquiry' occurs in many different places of the
Code.
In the present context
section 202 and 196B would be most relevant. Section 202 says inter
alia, that any Magistrate, on receipt of a complaint of an offence or
which has been transferred to him under section 192, may, if he thinks
fit, for reasons to be recorded in writing, postpone the issue of process
for compelling the attendance of the person complained against and either
inquire into the case himself or, direct an inquiry or investigation
to be made by any Magistrate or by any police officer or by such other
person as he thinks fit, for the purpose of ascertaining the truth or
falsehood of the complaint. The second proviso of the subsection says
in the similar way that-if the offence complained of is triable exclusively
by the court of sessions, the Magistrate may postpone the issue of process
for compelling attendance of the persons complained against and may
make or cause to be made an inquiry or investigation for the purpose
of ascertaining the truth or falsehood of the complaint. Sub section
(2A) says - any Magistrate inquiring into a case under this section,
may, if he thinks fit, take evidence of witnesses on oath. And if the
case is triable exclusively by the court of sessions, he shall call
upon the complainant to produce all his witnesses and examine them on
oath.
Section 196B says-
In the case of any offence in respect of which the provisions of section
196 (prosecution for offence against state) or section 196A (prosecution
for certain classes of criminal conspiracy) apply the Chief Metropolitan
Magistrate, or a District Magistrate may notwithstanding anything contained
in those sections or in any other part of this Code, order a preliminary
investigation by a police officer not being below the rank of Inspector,
in which case such police officer shall have the power referred to in
section155, sub-section (3). A bare reading of these provisions of law
will suggest that the Code does not mean to ascertain truth or falsehood
of any complaint by inquiry mechanism.
Side by side with
inquiry the law makers have taken care to use the term 'investigation'
so as to provide the Magistrate with power to apply its mechanism in
appropriate cases.
So far as the power
to appoint 'Commission of Inquiry' three laws are found in the statute
book. They are a) The Pakistan Commission of Inquiry Ordinance, 1955
b) The Commission of Inquiry Act, 1956 and c) The East Pakistan Commission
of Inquiry Ordinance, 1958. All the three laws were enacted on the same
subject i.e., appointment of commission of inquiry for the purpose of
making an inquiry into any ''definite matter of public importance''
and performing such functions and within such time as may be specified
in the notification. Among the three laws two were repealed.
The subsisting law
i.e., The Commission of Inquiry Act, 1956, provides, inter alia, that
the Commission shall have the powers of a civil court in respect of
summoning and enforcing attendance of any person and examining him on
oath; requiring the discovery and production of any document; receiving
evidence on affidavits; issuing commission for examination of witnesses
or documents. Commission's President or any gazetted officer authorised
by him shall have power to enter any building or place where the commission
has reason to believe that any books of accounts or other documents
relating to the subject matter of the inquiry may be found and may seize
any such books of account or documents as per provisions of sections
102 and 103 of the Code of Criminal procedure. Any proceeding before
a Commission shall be deemed to be a judicial proceeding.
Both the Code of
Criminal Procedure, the parent law providing the concepts of inquiry
and the Commission of Inquiry Act, 1956 are mutually consistent in terms
of the legal import of the word inquiry and have nowhere contemplated
its application as an alternative to investigation.
Inquiry has always
been characterised by judicial trappings and meant for ascertaining
the truth or falsehood of isolated disputes or issues emerging between
parties or complaint made by one party against the other or any socio-political
or economic issues of national importance.
In keeping with
the legal import of inquiry the Commission of Inquiry Act,1956, is meant
for making inquiry into 'definite matters of public importance'. If
I am not wrong in early fifties an Inquiry commission was formed with
Justice Alice on '52 Language Movement'. The landmark Judicial Inquiry
Commission was constituted with Justice Latifur Rahman to inquire into
the causes of damage done to several aircraft by cyclone at Chittagong
Air Force Base. And last landmark is the Judicial Inquiry Commission
constituted with Justice Tafazzal Hossain to inquire into the incident
of Dhaka University, Shamsunnahar Hall. All these inquiry commissions
could produce positive results due to the nature of the jobs they were
entrusted with.
By contrast the
sensational cinema-hall-bomb-blast case of Mymensingh and the result
produced by the judicial inquiry commission may be looked into. On the
7th day of December,2002 saboteurs let off four bombs in four cinema
halls at Mymensingh almost at the same time in the evening killing 19
persons leaving many others injured. The tragic incident shocked the
conscience of the whole nation. There was an uproar amid fear and confusion
for proper detection of the cause of the crime and of the criminals
responsible for the shocking tragedy. Govt. immediately responded by
forming a "bichar bibhagio tadanto Commission" (judicial inquiry
commission) comprising Mr. Justice Sultan Hossain Khan, a retired judge
of the Supreme Court. People seemingly felt relieved. The Commission
made inquiry over a couple of months and submitted a report in March,2002
showing reportedly no positive result. Quite natural, precisely because
the incident by its nature claims an all-out investigation by a specialised
investigating agency and not an inquiry.
Inquiry in its technical
sense is circumscribed by formalities and not meant for all circumstances.
On the other hand investigation is a mechanism for all out and indepth
probe into crimes shrouded with mystery and rooted deep into the society
even beyond carried out by specialised investigating agencies. The investigation
is set at motion for achieving an objective which does not permit any
time-frame for completion superimposed on it. It is a painstaking, challenging,
mission-like pursuit to be carried out by professionals openly and/or
secretly, locally and/or internationally, and is co-extensive with the
length and breadth of the network of crime.
Investigation is
a very specialised mechanism for proving into the causes and sources
of crime by professionals of allied disciplines having high skill and
experience and cannot be substituted by inquiry commission contemplated
by law. Making inquiry by a judge into a terrorist attack for example,
is a misnomer. Had the Chittagong case been a case of sabotage and not
a case of damage by cyclone the judicial inquiry by a judge would have
been a futile exercise.
In this context
I cannot but quote from Shahdeen Malik's article published in the Pratham
Alo, a vernacular daily, on 23rd instant where he said - 'It is heard
that judicial inquiry commission was formed. Had I been a cartoonist
I would have drawn a cartoon provoking fools' smiles.
In the British
period there was a custom of making judicial inquiry. The purpose was
to give eyewash to the natives so that they did not rise in revolt.
For reasons sake let us suppose that the occurrences in those days were
not complex and as such high dignitaries, though not experienced, could
do something about them. After the 11th September incident in America
no justices were called in aid. Does it mean that the people of that
country do not have confidence in their judges? Certainly, not. But
if inquiry was assigned to a justice the whole nation would have burst
into ridicule. Any one of that country fairly understands that inquiry
or investigation into terrorism is not the job of a judge. More so,
if a judge can demystify everything within three weeks what is the necessity
of keeping police, SB, DB, DG etc'.
The practice of
declaring judicial inquiry is rooted into British period. The true intention
of colonial Govt. could not be gathered after so long years. But our
practice of declaring and instinctive demand for judicial inquiry irrespective
of the nature of offence need be stopped. The sooner we are disillusioned
the better.
The
writer is an advocate, Supreme Court.
