Delivering justice calls for fair investigation

Since the dawn of history, every organised state has retained the monopoly of the use of force. None allowed rivals or non-state actors using force to further their interests. Thirukkural, the ancient Tamil “Veda”, asked the ideal king to speak “sweetly, give generously and protect powerfully”. Later, when the concept of democracy dawned, the principle of upholding the supremacy of law came to be adopted as an attribute to a “lawful state” even while it retained the monopoly of use of coercive power over its erring citizens.

But the practical problem is where to place such an organisation? Would it be an autonomous organisation independent of the cabinet, such as the CAG or the ECI?

That was the essence of the 19th DP Kohli Memorial Lecture delivered by the Chief Justice of India NV Ramana on April 1, when he emphasised the need for an “umbrella” organisation to bring various agencies like the CBI, Serious Fraud Investigation Office (SFIO) and the Enforcement Directorate (ED) etc., under “one roof” to avoid “overlapping of investigations and multiplicity of proceedings” which would weaken the evidence.

This, he felt, would remove the impression of “misuse of police by political masters”, which he said, was going on since the British days. The CJI added that the umbrella organisation should decide as to which specialised wing should take up the investigation once an incident is reported to save the individual institutions from being blamed “as a tool of harassment”.

The practical problem is where to place such an umbrella organisation. Would it be an autonomous organisation independent of the cabinet, such as the CAG or the Election Commission? Would it be under a political cabinet? Here, an institutional arrangement in the USA, set up immediately after their independence in 1776, could be studied.

Thirteen years after the “Declaration of Independence” and six years after the conclusion of the Revolutionary War, the First United States Congress tried to achieve this lofty aim. They passed the Judiciary Act in 1789 creating the Supreme Court and federal judiciary. It also created the post of “a meet person, learned in the law, to act as attorney general for the United States”, to “conduct all suits in the Supreme Court” and “to give his advice and opinion upon questions of law when required by the President of the United States”.

In other words, the US Attorney General, even though a political appointee, has the first line of duty to the Supreme Court. That was how Janet Reno, the first woman to be appointed as US Attorney General in 1993, had earned President Bill Clinton’s displeasure. The New York Times had said in her obituary on November 7, 2016, that Reno decided to start the independent “Whitewater investigation” into Clinton’s failed land deal in Arkansas. Later, she was also the Attorney General during his impeachment.

In 1870, the US Congress created the Justice Department to supervise the working of all the federal investigating and prosecuting agencies, including the Federal Bureau of Investigation (FBI), which had maintained its functional independence even during the Trump era shenanigans. This is because the FBI’s powers are circumscribed by checks and balances.

Its crime work is closely supervised by the Attorney General and US attorneys whose decisions are final during investigations and filing of charge-sheets. Its intelligence activities are overseen by the Director of National Intelligence. It needs court orders for telephone interceptions. Also, the Congressional “over-sight” committees maintain close control on its budget, operations and on selected investigations.

How do we analyse to what extent a country is a “lawful state”? Here, the annual reports of the “World Justice Project” would help. Admittedly, it is not a foolproof survey as its 2021 report excludes Israel and Saudi Arabia. Israel has shown its adherence to being a “‘legal state” by launching corruption proceedings against Prime Minister Netanyahu in 2019 while Saudi Arabia has shown its weakness through the Jamal Khashoggi incident.

In 2006, William H Neukom, who was president of the American Bar Association (2007-2008), founded a “non-profit” organisation, “World Justice Project” (WJP), along with William C Hubbard, presently Dean of the South Carolina University’s School of Law. WJP is meant to be a multinational, multidisciplinary initiative to strengthen the rule of law all over the world. They have offices in Washington DC, Seattle (California), Singapore and Mexico City.

WJP felt that the “rule of law” had to be studied through eight dimensions: “Constraints on government powers; absence of corruption; order and security; fundamental rights; open government; regulatory enforcement; civil justice; and criminal justice”. These dimensions were further sub-divided into 44 indicators. For example, their 2020 “Index” released on March 11, 2020, covered 128 “countries and jurisdictions” through national surveys on 130,000 households and 4,000 lawyers the world over.

The WJP index survey for 2021 was released on October 14, 2021. It ranks countries according to the parameters for their “strongest adherence to the rule of law”. The report starts with excerpts from the Hammurabi code (1792-1750 BCE): “That the strong might not injure the weak, in order to protect the widows and orphans… in order to declare justice in the land, to settle all disputes, and heal all injuries”. It covered 139 countries.

As anticipated, the Nordic countries have earned high placings: Denmark is No. 1, Norway No. 2, Finland No. 3 and Sweden No. 4. The fifth rank is taken by Germany, sixth by the Netherlands and seventh by far off New Zealand. Venezuela is at the bottom of the 139 countries followed upwards by Cambodia (138), Congo (DR) at 137, Egypt (136), and Cameroon (135).

The United States of America, which had pioneered the oversight system over investigative agencies in the world, was placed at 27, the UK at 16 and Canada at 12; China is 98, Singapore at 17, Japan at 15 and Australia ranks 13. Russia is placed at 101 while Ukraine is at 74.

India, which is at 79 of the 139 countries, had slipped in ranking by three points from its earlier position. In South Asia, Nepal was ranked 70th followed by Sri Lanka (76) and India. The lowest were Bangladesh (124), Pakistan (130) and Afghanistan (134). One could certainly dispute the methodology which had placed Nepal and Sri Lanka ahead of India.

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