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October 17, 2004

Does the government require releasing the report of the judicial inquiry on the 21 August grenade attack?

Barrister Harun ur Rashid

Following the 21st August horrific and deadly grenade blasts, the government set up a one-man judge judicial inquiry to address, among others, the question of identifying the culprits. The Judge was given a specified time and he submitted the report to the government with his recommendations.

The question that is agitated in the minds of public in Bangladesh as to whether the report should be made public. In other words, whether public has the right to know the contents of the report? Before I discuss the question, let me first make a few observations.

Judicial Inquiry Commission: Not a court of law
Judicial Inquiry Commission is nothing new in Bangladesh or in Pakistan or in India. Ordinarily a judicial inquiry commission is set up through an executive order in order to inquire into a matter of public importance. The subject could be diverse as long as it is a matter of serious concern to public. Furthermore the terms of reference should not be vague but must refer to a definite subject of public importance.

An inquiry Commission is ordinarily headed by a judge, retired or sitting, of a court including the highest court of the land. The person appointed shall have the ability to carry the impression of dispassionate approach to the issue referred to the commission.

The commission is required to investigate facts leading to a particular occurrence and make a report and appropriate recommendations. The government fixes a time schedule for the submission of the report. The commission is essentially a "fact-finding" body to advise the government of the day with its recommendations.

The recommendations are not "commands". They are advisory in character for the government. Justice Williams in Jellocoe vs Haselden (1902) observed: " The report by itself has no more legal effect and carried with it no legal consequences than an article in a newspaper".

Once the report is submitted the commission becomes functus officio. It has fulfilled its task of inquiring and reporting to the government. The recommendations are likely to facilitate rectification of procedures so that in future such occurrence due to certain lapses does not happen. The government takes action through appropriate legislative or administrative measures in the light of the recommendations as it deems them proper and appropriate.

One fact must be made clear that the inquiry commission is not a court of law and therefore the status of the report is not similar to that of a judgment of a court, which is a public document.

Right to information:
Article 19 of the 1948 UN Declaration of Human Rights states that " everyone has the right…. to seek, receive and impart information". The 1966 International Covenant on Civil and Political Rights also confirms this right and elaborates that every one has the right receive information, "either orally, in writing, or in print." Although the Bangladesh Constitution is silent on the right to information, it is generally agreed that a democratic political system requires an adequate and effective level of public information for citizens.

The question is as to whether does public have access to the report of a commission of judicial inquiry?
The answer is yes and no because it depends upon the matter referred to the inquiry commission. Ordinarily, report on defence, military operations and national security is not made public because of the sensitivity of the subject. Inquiry report, which affects fundamental rights of public, such as food, environment and civil liberties, must be disclosed.

It is also noted that the government of the day has the unfettered authority to determine what should be kept secret, unless there is a law that prohibits the government to do so.

Freedom of Information Act
In many countries, Freedom of Information Act enables a citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability. Freedom of Information Act is the most important innovation in democracy that allows citizens to right to information. However the Act also generally provides the power of the authority to deny access the documents in the interest of security. India enacted the Freedom of Information Act in 2003.

Government secrecy
Government al secrecy is as old as government. French statesman and cardinal Richelieu (1545-1642) once said " Secrecy is essential in the affairs of a State." As stated earlier, consideration of national security justify a measure of secrecy and keep sensitive information out of public information. The purpose of secrecy is to protect the nation.

In this connection, Official Secrets Act helps the government in maintaining secrecy and any leakage by any person or agency is liable to be charged in the court of law. In bureaucracy, in particular in foreign affairs and defence, it has been the practice to rely on "need to know" policy that enables to narrow the circle of bureaucrats with respect to disclosure of sensitive information.

It is noted that even the right of freedom of speech and expression and freedom of press in Article 39 of the Bangladesh Constitution can be exercised " subject to the reasonable restrictions imposed by law in the interests of the security of State, friendly relations with foreign states, public order, decency or morality". This means the right is not unfettered and the law may impose reasonable restrictions on exercise of this fundamental right.

However, government should exercise this power judiciously and not arbitrarily. If it is not done reasonably, one can go to the court for judicial review.

Precedents of secrecy
In Pakistan, the report of inquiry into the assassination of Prime Minister Liaquat Ali Khan was not made public, despite the request of the wife of the deceased. In the USA, the Commission's report of 600,000 pages on the inquiry of assassination of Dr. Martin Luther King, Jr. remains sealed until 2039. In India, Narsimha Rao government set up Jain Commission to inquire into conspiracy angle of assassination of former Prime Minister Rajiv Gandhi. The Commission submitted its report in 1997 to then Deve Gowda government but it decided not to disclose the details of the report.

Conclusion
The above discussion demonstrates that in the interest of national security and foreign relations, the government may not make the inquiry report public. It is noted that in the past some of the judicial probe reports have not been made public by the government of the day in Bangladesh. It suggests that decision to release the report is exclusively in the domain of the government, unless Constitution and law requires the government to release the report.

It reminds me of what David Hackett Fisher, the historian, once said: "History is not what happened but what the surviving evidence says happened."

The author is former Bangladesh Ambassador to the UN, Geneva.