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Islamabad

July 30, 2017

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Should JIT be an ‘act of Parliament’?

I have served my country in different administrative and constitutional posts for more than 40 years and what I have learnt is put beautifully by a famous social scientist that when it comes to privacy and accountability, people always demand the former for themselves and latter for others. Our people are no different than rest of the world. When it comes to accountability for their actions we as nation follow the same above.

While being a member of the Federal Investigation Agency (FIA) I have been involved in investigation of cases of national and international ramification and since then I have seen various JITs having formed by the Federal as well as Provincial governments to investigate cases of public or sensitive importance. My views on the constitution and involvement of any JIT in the investigation of a case since then have been that a JIT is an alien mechanism in the eyes of law.

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, can any non-police officer investigate the case assigned to a police officer 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).

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 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 also have been several incidents where the then made JITs failed to produce any concrete results.

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 binding on the Federal Government. The Federal Government has appointed number of Commissions of Inquiry under the Act in the past, which includes Hamood-ur-Rehman Commission, Hamood-ur-Rehman Commission; Abbotabad Commission; Commission on murder of journalist of many journalists. It is unfortunate that the reports of majority of these Commissions were not made public.

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 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 is that the findings of the later are binding whereas it is not the case of the former.

The honorable Supreme Court in the recent past had held in the case of Riaz Malik versus ArsalanIftikhar that under Article 184 (3) of Constitution of Pakistan, Supreme Court does not have powers to investigate but “special measures need to be taken to ensure an impartial, fair and effective investigation and inquiry” and appointed one-man Commission to investigate the allegations and report to the Supreme Court.  Again to keep a vigilant eye over the investigation by keeping itself abreast of the progress, the Supreme Court monitored the investigations of the cases of Hajj corruption and violation of Public Procurement Rules by National Insurance Corporation (NIC) in 2012, but did not constitute any Joint Investigation Team (JIT).

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 you all is that how many of us know the findings of the commission’s report? Do we have no right to know that 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, same happened to the Commission constituted on Lal Masjid operation in 2012 where more than a hundred people died. The then dictator Gen. Musharraf ran off from Pakistan when it came to being accountable for his actions.

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 at 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.  The question, therefore, is; would the phenomenon of JIT, in future, over-rule the prescribed means of investigation of criminal case as laid down in the Code? If the answer is in affirmative, then we need to give it a proper legal cover by amending the Code and the Constitution.

The point that I am trying to make is that the idea of formulation of JIT is not flawed but how it is executed shall be monitored properly. Because at the end of the day, what it produces is what should matters. Take the example of Ireland where the organized crime is becoming one of its most effective exports. The Netherlands Politie’s joint investigation team (JIT) is so secretive that its officers use numbers instead of names, fearing assassination at the hands of violent godfathers but still work efficiently to locate the Irish- British gangs who are developing effective drug trafficking routes across Europe. Similarly on July 6th when 30 people were arrested across Europe ( from Spain, Italy and Germany) involved in drug trafficking and money laundering with the continuous efforts of Joint investigation team who recovered 520 kilograms of cocaine and 450 ms of hashish and marijuana.

It seems that Pakistan is the only country where the reports of JIT or JC do not bear any fruit if they are against the most powerful lot of the society. I believe that the JIT formed by the Supreme Court, however, has done its righteous duty whereas, in politics when people fear fair results they make even the most respectable institutes of the country controversial. 

The notion of joint teams was established during the revision and updating of the 1967 Naples Convention on mutual assistance. As per the content of article 13 of Convention 2000; a JIT may be set up consisting of two or more members in order to carry out criminal investigations across the board. It should be for a specific purpose, with a team that must dissolve after the investigation is over. Moreover, the nature of investigation can also include narcotics, arm trafficking, and money laundering - which the Sharif family is also accused of.

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 give 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.

(Recipient of Sitara -e –Shujat and Nashan-e-Imtiaz, the writer is a former interior minister of Pakistan and chairman of think tank —Global Eye. @Email: [email protected], Twitter @senrehmanmalik)

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