The Kanishka outrage

The Canadian court's verdict highlights the vagaries of the criminal justice system and the problems associated with investigating cases of terrorism.

The killers are out there. One day they will meet God and have to face judgment for what they have done. I know I will see my uncle in heaven one day. That is all I can pray for.

- Sunil Thomas in Toronto Star, March 16, 2005.

GLOBAL terrorism has registered another decisive victory. Twenty years ago, 329 innocent people got blown up midair over the Atlantic and nobody is punished! There is not even a whisper or speculation as to who on earth could have perpetrated this savagery. Can anything else boost the terrorist morale than the blow dealt by Justice Ian Josephson of the British Columbia Supreme Court, while delivering his most surprising verdict. All this after his court sat for 233 days, heard 115 witnesses and consumed public money to the tune of $130 million. (The trial was held in a specially built secure court room that cost $7.4 million.)

The judge let off Vancouver (British Columbia) businessman Ripudaman Singh Malik and mill worker Ajaib Singh Bagri on charges of causing the deaths of the 329 passengers on board the ill-fated AI 182 from Montreal to New Delhi. Time-bombs placed inside the aircraft by Sikh terrorists aggrieved over Operation Blue Star broke it into pieces on June 23, 1985. The two accused were also cleared of the charge of murdering two baggage handlers at Tokyo's Narita airport on the same day, in a separate explosion. The bombs were in a suitcase that arrived by a Canadian Airlines flight and was about to be transferred to an Air India aircraft at Narita.

I have never seen a more disgusting picture than the one carried by most newspapers reporting the acquittal of Malik and Bagri. Here, one woman is seen thrusting a sweet into the mouth of a relative to celebrate the acquittal. I found another equally insensitive picture of Bagri's brother offering sweets to his mother. If this is not the nadir of human emotions, what else is it? The lives of more than 300 innocent human beings got extinguished for no fault of theirs, except that they chose to travel in a plane that belonged to a country whose government had offended Sikh sentiment. When this is the horror, we find relatives of accused persons becoming ecstatic about their kin getting discharged from the offence, totally unmindful of the trauma caused both by the explosion itself and a judgment that in the end of its marathon sittings finds no one accountable.

The acquittal called for mourning that the criminal justice system had miserably failed once more to deliver justice, rather than jubilation, even if some innocent persons had been wrongly arraigned and were eventually let off. If my information is correct, the judge did not say that Malik and Bagri were innocent. He merely said that the prosecution story against them was not beyond a reasonable doubt, and hence the accused could not be held accountable. This is the difference between an acquittal based on an inconsistent prosecution version of a crime and an acquittal that says that the arraigned person(s) were innocent and they did not at all commit the crime in question.

The outrage against Operation Blue Star of 1984 was never faulted by a substantial number of non-Sikhs. But then did such outrage give the licence to anyone on earth to wreak vengeance on anybody in government or outside, especially people totally unconnected with the Operation? All of us know that a perceptive and tolerant religion such as Sikhism did not condone such mindless violence.

IN his controversial order, Justice Josephson conceded that the bombs on the Air India aircraft did originate in Vancouver. However, he was not convinced of the reliability of some of the Crown (prosecution) witnesses whose deposition had many inexplicable holes. Apart from their inconsistency, they had actually motives to testify against Malik. Also, the evidence against Bagri was just hearsay, which was not corroborated. The Judge's pithy statement was: "Justice is not achieved if a person is convicted of anything less than beyond a reasonable doubt."

Justice Josephson's main problem was with the evidence adduced by a leading Crown witness. This unnamed 43-year-old woman, in protective custody, claimed she was in illicit intimacy with Malik, at whose religious school she had been employed during 1992-97. She was categorical that Malik had confessed to her of the crime. Malik told her that the bombing was done at the instance of a religious leader, Bhai Jeevan Singh, and that there had been an additional plot to kill Rajiv Gandhi in London. At the request of Malik, the woman stated that she recorded his confession in a diary. But she destroyed the diary after she left the school, because she did not want it to fall into wrong hands and cause harm to Malik and to herself. In the eyes of Justice Josephson, this was an unreliable and motivated statement. He did not particularly buy the woman's claim that she was still in love with Malik, although they had been separated for years. He discounted the possibility of Malik having given a detailed account of the crime to one of his employees, however much he may have been infatuated with her. The Crown stand against Malik thus crumbled beyond repair.

The prosecution suffered another reverse when a second key witness, again a woman, went back on her earlier statements to the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS). She had given them different versions of the second accused Ajaib Singh Bagri asking for her car to deliver some baggage at the Vancouver airport. While she told the CSIS that this happened the evening before the Air-India bombing, in her account to the RCMP, she said this was after the event. In her deposition before the court, she took the plea that she did not remember making statements against Bagri. Justice Josephson declared that her loss of memory lacked credibility, and she was lying before the court. He also rejected all the allegations that she levelled against the police investigators. The Judge did not, however, concede the Crown request for treating her as a hostile witness, so that she could be cross-examined when truth could possibly emerge. This was another serious blow to the prosecution, something that must have weighed heavily in the Judge's mind in arriving at his sensational conclusion.

The prosecution's third reverse during the trial was its failure to persuade Justice Josephson to treat Inderjit Singh Reyat, another important potential witness in the case, as hostile. Reyat was involved in the explosion that took place at the Narita airport in Tokyo. The suitcase containing the bomb was put into a Canadian Airlines flight but the bomb exploded before the suitcase could be loaded in an Air-India aircraft at Narita, killing two baggage handlers. Reyat was convicted for this incident and served 10 years in a British prison. After completing his term, he was returned to Canada to face the charges connected with the AI 182 bombing. There was speculation that he would be asked to depose against Malik and Bagri. But this did not take place, possibly because he was not willing to let down his co-conspirators. On Reyat admitting to 329 charges of manslaughter (instead of first degree murder), he was convicted to five years of imprisonment by the Vancouver court. The Crown's request to treat him as a hostile witness, again did not convince Justice Josephson.

THESE facts are essential, if one wants to comprehend the vagaries of the criminal justice system. Canada and India have inherited the same jurisprudence from the English, and this has a tremendous impact on trials. All the dear ones of those killed in the explosion ask the same question: If Malik and Bagri did not commit the crime, who else did? They are incensed over what they regard as the judiciary's insensitivity to the trauma suffered by them. This is absolutely human and unexceptionable. Unfortunately, however, the adversarial system prevalent in the two countries does not directly provide for the inquisitorial exercise that the Kanishka victims' families demand.

Justice Josephson cannot be faulted for having stopped with saying that the evidence against the two accused was not sufficient to nail them. He demands "evidence beyond reasonable doubt." Actually, the kind of penalty normally imposed in such cases, namely, capital punishment, calls for higher proof, that is, "conclusive proof". So, if at the end of a marathon trial, we are not wiser about who brought Kanishka down, it is the tragedy of the system, rather than a shortcoming of the Judge.

This is why Justice V.S. Malimath, in his report on criminal justice reforms in India, recommended a few years ago that we must move over to an inquisitorial system, where it is incumbent on the trial Judge to be proactive and ferret out the truth. There is, however, a school of thought which holds that this would lead to a gross violation of the principles of natural justice. This is a genuine fear, and we need to explore how best to allay it.

The Kanishka case also highlights the travails of the investigating officers. We in India are only too familiar with the phenomenon of key witnesses, including those directly victimised, going back in court on what they had told the police in the early stages of investigation. The Best Bakery case is fresh in our mind. The two women witnesses in Vancouver, who were in possession of valuable information, did not support the prosecution when it mattered. It was not as if it was a case where the police had persuaded them or forced them to say something that was fanciful or which was not at all within their knowledge. The Judge himself went on record saying that one of the women witnesses, who suffered from a sudden bout of amnesia, was actually lying. When this is the case, how can you ever blame the Canadian Police?

Reports on the Kanishka case point to a turf war between the RCMP and the CSIS, which is a purely intelligence agency. The story is all too familiar to those who followed the 9/11 Commission proceedings. The differences between the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) have become nearly proverbial. This one factor, more than any other, which contributed to a failure to share vital information pertaining to the Al Qaeda intrusion in the U.S, and ultimately led to the disaster.

We in India are slightly better off, although discord between the Intelligence Bureau (IB) and the Central Bureau of Investigation (CBI) is not wholly unknown. There is precious little that the political executive or the judiciary can do about this, unless we install mature leadership at the top of sensitive law enforcement and intelligence agencies and also create the stake for a liberal exchange of information and resources.

Finally, the episode highlights the problems associated with terror investigation. It requires extraordinary perseverance and cooperation between law enforcement agencies. International cooperation is especially a prerequisite. In this case, agencies of Canada, India, Ireland and Japan were directly needed to act in harmony. I remember the CBI generously assisting the RCMP in the matter of tracking down the relatives of victims and suspects. I presume the I.B. also played its role in giving background information on Sikh terrorism, which was the root cause for the unprecedented tragedy. I am also certain that 9/11 has greatly enhanced the desire of agencies all over the world to share and act on information. After all, a country that has information to share with a country that has been battered by terrorism could itself be a victim one day.

At the end of it all, the RCMP's failure to get the Kanishka accused convicted is not a blot on that agency alone. It is an indictment of the whole criminal justice system, of which the judiciary is the most important segment. If the judiciary is not driven by the belief that it has a major stake in unravelling the truth behind every heinous crime, we will have many more Kanishkas. This does not mean that the quality of investigation at present is always the best. Actually, investigation standards need to be pushed up if courts are to go that extra length to gloss over prosecution gaps and hold those indicted before them guilty.