Pak rule of law under attack; duality on JITs

(Sitara-e-Shujaat, Nishan-e-Imtiaz)

Our country is facing the worst kind of political polarisation and the nation expected to enhance the rule of law whereas our government and Opposition are further deteriorating the public confidence in the rule of law. Our rule of law has come under the dark shadows of political whims and tools to play politics. People have short memories as such commissions and Joint Investigation Teams (JITs) had not yielded any conclusive output in the form of conviction. The people have seen the end of recent JITs and Sugar Commission as both are inquiry tools and are meant for recommendation. Commission recommendations are made to the government and it is up to the govt to act or not act. Similarly, JIT makes recommendations, and investigating officers of the said case may include in his FIR as a source report. In view of these anomalies, I had written an article under the heading of “Should JIT be an act of Parliament?” wherein I had quoted a famous social scientist that when it comes to privacy and accountability, people always demand the former for themselves and later for others. This is what our nation as a whole has been practicing. We politicians and other factions of society want only others to be accountable. It is selfishness to profess to be fault free which is against even the law of nature. My views on the constitution of JIT are divergent than others as bringing it in for investigation of any given case means no confidence on the said investigating institution which has been mandated to perform its duties of law enforcement and to deal with the crime that has been as per the rule of law. The word JIT is an alien mechanism in the eyes of law as it is neither part of PPC except most recently it has been inducted only in Anti-Terrorism Act but unfortunately is now misused against the political opponents. The investigation of a criminal case is invariably regulated by the provisions of the Criminal Procedure Code (Cr. P. C.) Section 156 of the Cr. P.C. empowers an officer-in-charge of a police station to investigate any cognizable offence and he under Section 157 of the Cr. P.C. is empowered to depute one of his subordinate officers to investigate the case and on the completion of the investigation, the officer-in-charge of the police station forwards the Report u/s 173 Cr. P.C. to the relevant court.

Nowhere under any provisions of the Code, any non-police officer can investigate the case assigned to him under Section 157 of the Code. It is and would always be the duty and responsibility of the police officer investigating a criminal case under sections 156 & 157 of the Code to conduct the investigation and submit a report under Section 173 of the Code to the relevant court for the trial or otherwise of the accused person(s). It is now fortunate to note that a regular feature has emerged for the use of commissions and JIT both by the provincial and federal governments to use JIT by inflicting the legal course of action of an IO who is empowered under law to undertake such investigation.

The IO has got the powers that while investigating the case and can opt anybody/expert to assist him if so required. JIT perhaps could be used only for some complicated matters of public importance or sensitive nature. Although not many of the Joint Investigation Teams have concluded their investigations which is a matter of public record. The findings of the JITs, in a majority of the cases, have not yielded in conviction of the court. The reports of JIT are treated as source reports while formalizing the report in the form of FIR. It is because JIT does not have legal cover even it is signed by 10 officers.

The federal government is, however, empowered under Section 3 of the Commissions of Inquiry Act 1956 to “appoint a 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”, although the findings of the Commissions of Inquiry were always recommendatory in nature and not any binding on the federal government. The federal government has appointed a number of commissions of inquiry under the Act in the past, which includes Hamood-ur-Rehman Commission; Abbotabad Commission; commissions on the murders of journalists. It is unfortunate that the reports of the majority of these commissions were not made public.

The experience displays that all such commissions including most recent commissions on sugar and wheat will meet with the same fate as the commissions made in the past. On the other hand, the Supreme Court under Article 184 the Supreme Court of Pakistan is under full jurisdiction to consider the matter of public importance with an orientation to enforce any fundamental rights as per the nature mentioned in the given article. In order to achieve these objectives, the Supreme Court exercised its powers under Article 184 of the Constitution, it had at times constituted judicial commissions including Memogate Commission; Lal Masjid Commission – 2013; Election rigging commission on the petition of Imran Khan/PTI – 2015 and Missing Persons Commission. The difference between the Commissions of Inquiry and the Commission constituted by the Supreme Court of Pakistan is that the findings of the later are binding whereas it is not the case of the former.

However, it had become a regular phenomenon for the provincial governments to constitute a JIT whenever there is a case of public importance or sensitive nature. Although not many of the Joint Investigation Teams have concluded their investigations which is a matter of public record. The findings of the JITs, in majority of the cases, have not yielded in conviction of the person(s). Many matters investigated/interrogated by the JIT for the reasons that the prosecution could not prove the evidence in the court of law beyond reasonable doubt coupled with the legality and validity of the JITs itself. There have also been several incidents where the then made JITs failed to produce any concrete results.

Ironically, the hype of forming the commission is more than the hype of it when it fails to produce any results. Take the example of Abbottabad Commission, which was to investigate the killing of Osama bin Laden in his compound in Abbottabad. My question to the nation is that how many of us know the findings of the commission’s report? Do we have no right to know how and why did the Americans breach the security of our soil? And why is it that no one ever did anything about it? The reports were yet again hidden from the public. Unfortunately, the same happened to the Commission constituted on Lal Masjid operation in 2012 where more than a hundred people died. At the conclusion of the hearings in Panama Case, the Supreme Court decided to constitute a JIT to investigate 13 questions for further considerations of the Supreme Court. Unfortunately, the Supreme Court expressed its dissatisfaction vis-à-vis the State institutions like NAB, FIA, FBR, SECP, and State Bank, which failed to investigate the matter on their own.

This dissatisfaction, in fact, led to the formation of the JIT. The dissatisfaction of the Supreme Court is in a way losing confidence in the credibility of these institutions in the eyes of the public. This is the experience of our highest judicial forum that JIT ordered by the Supreme Court of Pakistan failed to come to the expectations of the Supreme Court. The question, therefore, is that constitution of JIT has no legal cover hence if the government is keen to use JIT in the future then let it bring in a law giving JIT full legal cover to provide full legitimacy to the entire process and make it fault-free. It is for the first time that JIT has been constituted which will always be the point of reference by the other junior courts. Hence the JIT may be given a legal cover for investigation and constitutional legitimacy to conduct its investigative duties to regulate its proceedings within the legal ambit to make it more productive and useful.

The nation witnessed politics first on the report of the sugar commission and the whole Opposition used it against the government so the government released old JIT reports. Now government is hitting the Opposition back with JIT hence we can conclude by saying that so for all reports of commissions and JIT are being used with political motives which must end.

Basically, both opposition and government are using JIT and commissions as political tools to bring down each other on TV theatre every evening and the nation witnessed the drop seen of the JITs when the main accused backed out his statements before the JIT; where is the credibility of JIT and criminal justice system of my country. We need and will have to give respect to rule of law and Parliament has to make stringent laws to enforce our laws through rule of law and not through JITs and commissions. Let us not do blame games but make ourselves accountable for our failures. Let us confess before the nation that we have failed to give good governance which could provide justice to the common man and to end exploitation and political victimisation.

May God protect my nation from internal polarisation. Long live Pakistan.

Note- Opinions expressed are solely my own and not necessarily reflect the views or opinions of my party.

The writer is former interior minister of Pakistan, Chairman Senate Standing Committee on Interior of and think tank “Global Eye”. Twitter @SenRehmanMalik