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September 5, 2004

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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.

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