Did the government legally cuff their own hands?
At the time when the government was drafting, presenting an amended the law Inquiry and Commission Act in September 2016, whose purpose was but to inquire into Panama allegations, little did the government benches know that they were designing a Trojan horse for none other than themselves. The proposed law was being designed to allow the federal government control and manage the commission and invariably the inquiry proceedings was put aside by the courts and JIT was formed instead. It seems that the government was outmanovoured by the Supreme Court which came up with its own commission, under the proposed name of JIT under Article 187(1) (2) of the Constitution. How different is the JIT from the Commission? It is ironic that the same powers, authority, mandate which were actually proposed in October 2016 in the bill ie Inquiry and Commission act 2016, were handed over to JIT but with a twist. This article looks at the new adapted law which was meant to safeguard its own interests but that was turned around and bit the very hands which…
Amending the law of inquiry commissions
The commission is set up under Inquiry and Commission Act 2016 which was earlier also known amended in 1974 was meant to come up with inquiries which were mostly controlled or managed by the federal governments. The most interesting aspect of this law is that it was amended in September 2016 for a specific purpose i.e addressing the Panama issue by none other than the parliament headed by ex prime minister who was taken out by the JIT. There is another interesting twist to the whole story. The opposition staged a walk out on the tabling of this bill which they termed “was going to protect Nawaz Sharif” and present legislatures passed the bill vehemently stating it was for “saving democracy”. The present bill gave the same powers to the commission as were given to JIT with minor legal changes. In fact the commission had more powers than JIT in many instances, yet the major difference being that the JIT was formed from the constitution and from the powers assumed by the Supreme Court under powers allowed in the constitution. This is exactly the stage where as jurists, legal practitioners, we must inquire amongst ourselves (for further understanding the constitution of course), whether the JIT held a constitutionally protected position? How much constitutional space was allowed to the JIT under article 187(2) as handed over by the court? And, if so, were its findings, evidence collected need further trial or better, is it not adequate for a trial court to pass a sentence against the accused without going to a trial?
JIT of the court vs commission from the government
The inquiry and commission law is an interesting insight into the working of the inquiry commissions. Foremost interesting aspect is that a commission which would have enjoyed unparalleled powers, and authority, was suppose to be formulated on the instruction of Federal government and the government itself would have been its source of moral authority. Second interesting aspect is that the laws were amended to give greater potency, stealth and legal cover than its predecessor law of 1956. The commission was free to make their report and finding public without sharing their findings with the federal government first. If it were up to some scientist, he would certainly say the amended law is perhaps 100 times more effectively potent than its predecessor. Thirdly, the commission could call in anyone to help them in their inquiry and was equipped with potent powers to call, collect and record evidence. Executive would help them and the commission would be able to call in anyone for support, help or investigation. Banks, SECP, FBR were legally all under the disposal of the commission. The most interesting point is that it could go well beyond the boundaries of Pakistan or ask foreign governments to help it in its course. This meant that inquiry could also take information from abroad and that help or assistance, evidence would be deemed admissible in (a) investigation (b) trial if it comes to it. Is this not what JIT was doing too? So how is the JIT different? Main difference was that it was made by Supreme Court to and JIT assumed all its powers through powers under Article 187(2).
The former PM and his family has not been well advised during the course of their investigations in front of the JIT. This has been apparent from the way the legal team which according to my own humble opinion did a good job, worked a tenable defense but it came down mainly due to outthinking of the JIT. Another cause of worry is why was the above law suggesting unparalleled powers for the commission being proposed when the same power were adapted later by Supreme Court while forming the JIT? In short the government by introducing the bill had endorsed the powers of JIT and cuffed their own hands.
The government handed in the important points of commission through the amended law and, from the looks of it, JIT had similar powers (to a fair degree). Supreme Court may have introduced an independent reporting mechanism, selection of members and its weight behind the JIT to give it potency, which is all that was missing from the amended bill. It would be hard for the government to denounce the powers of the JIT since they had practically proposed all of those in their own bill; how convenient.
The writer is a lawyer with experience in policy framework, litigation, judicial interpretation and legal matters. He can be reached on [email protected]
