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Ban on student politics is a must
Barrister M. Moksadul Islam
There is no gainsaying that the student leaders and activists
were at the forefront of every political and social movements of
Bangladesh. Everybody remembers students' contributions and
sacrifices during our Language Movement, Liberation War and
against the autocratic regimes. Successive governments built
many monuments, erected sculptures and decorated walls
inscribing students' glorious and colourful political and
historical achievements.
The sculptures near the TSC of Dhaka University campus would
give us the impression that university is a place where we only
train our leaders and heroes to organise movements against the
unjust. These inscriptions and sculptures remind us of our past
movements, but not education. Surprisingly, there is hardly any
visible sculpture, statue, monument or wall writing which
glorifies or encourages education.
Political atmosphere in this country has not been peaceful and
unless we start changing our attitude and way of thinking,
healthy political atmosphere in the foreseeable future will
remain only a dream, and fate of this poor country will remain
unchanged. We achieved independence more than three decades ago
and have seen many forms of governments, but the condition of
the common people has not improved at all. Millions of people
still remain hungry every day and every night.
Although many politicians, including ex-army chiefs, lawyers and
ex-ministers personally would not support current form of
student politics they are, sadly, unable to admit that in public
for reasons known to all. Moreover, there are many so-called
intellectuals who would simply lie about the issue by giving
false account about student politics in the developed world.
During the Vietnam War, students in the USA organised themselves
against the war. After the war they went back to their class
room and reading table. In Europe, there are student
associations mainly centred on a particular department or
faculty of an institution. They work for advancement of their
education. They also organise debate, drama, seminar etc. but
they do not sing in chorus with any political party. Our
democracy is not as matured as that of the developed world and
here students are being used as political pawns in the dirty
game of party politics. We should now put our past behind and
work for the common good.
When in power, almost all of the main political parties directly
or indirectly express their willingness to ban student politics
in its present form. Subsequently, when they get out of power,
they feel that they need these innocent students for their own
benefit; they simply change their mind. In order to give covert
support to student politics they would then remind us about the
glorious past of such politics in our country. Nobody ignores
the glorious past of our students and their contribution to
democracy.
However, at its present form politicians are using student
politics to advance their own agenda. There are incidents and
allegations against students that they are involved in
terrorism, toll collection and influencing peddling. As a
result, recently an innocent girl of BUET had to give her life
in a cross fire.
She was in a wrong place at a wrong time. Many would argue that
only a few of the terrorists come from politician students and
if the government sincerely desires it is not that difficult to
wipe terrorist elements out. But, these small numbers of
terrorists are enough to destabilise and disturb peaceful
educational atmosphere.
Students, who do not have any shelter in and around the
university area and who come from remote areas of the country,
would look for a roof over head from where they can apply for
room or find another suitable accommodation. A senior student,
usually involved with student politics, would come forward and
help them with the paperwork needed for getting accommodation in
the dormitory and offer them shelter (most of the time, on floor
of a room), for some days, until they get accommodation. One
evening, this senior student would also take him around the
campus and introduce him to other students and places.
To show appreciation of what the senior student does for him in
the beginning days of his student life, he usually takes this
senior as a model or quasi-guardian and starts supporting his
politics. Eventually, he would find that the canteen boy or the
dining room manager is offering him free meals. Many of them
gradually become dominant figures in present day student
politics and then they also finds that the corner shop is not
charging for cigarettes or tea.
If he is from a middle class or lower middle class family with
limited income this little help is quite a help for him. Slowly
he learns to walk inside the dormitories and one day becomes a
student leader and if he comes by illegal arms he would not mind
as it would certainly amplify his power amongst the general
students.
There is a difference between a student association and a front
organisation or a wing of a political party. There is nothing
wrong when a student association works for the advancement of
education. We are only concerned when the political parties of
this impoverished nation use our innocent students for their own
gain. Like the poor workers of the now-defunct Adamjee Jute
Mills who have lost everything because, among others, the
political unrest surrounding the mill made it impossible to
maintain its production up to the expected level and forced its
closure, the innocent students of this poor country are also
being manipulated and used by the different vested quarters. It
is a proven fact in Bangladesh that students are the strongest
weapons of the opposition parties to organise a successful
movement against any government. But, at what cost?
At the cost of blood, unrest and year loss for the benefit of
vested quarter.
What these movements are all about? These movements are
organised against the politicians of the party in power who are
the beneficiaries of these movements. Without any doubt
whatsoever it is the opposition parties who would gain from such
movements. Right now we cannot afford to put our students in the
street against any government. We can change the government by
simply following the democratic process. We have achieved our
independence long ago. Now we need to declare a war (or a Jihad)
on poverty (more than 80 per cent of us are somehow sustaining
without basic amenities), overpopulation (there are almost 2,500
of us within a square kilometre, highest density in the entire
world) and against illiteracy (over 80 per cent is just
surviving, which itself speaks about the statistics on
literacy).
Those who managed to come to any college or university should
consider themselves among a fortunate few (negligible comparing
the entire population) of this poor country. After completion of
their academic career they should come forward to build the
future of this country for which our politicians simply do not
have any time or intention to think even. At all time they are
virtually at war on silly and dead issues. If we do not change
our attitude towards student politics there cannot be any hope
that this impoverished nation would ever offer any dignity to
its citizen.
If it is said that the root came of many failures of this
country is its student politics, especially as a front
organisation of any political party, no one should doubt it
straightway. At the end of their educational life they would
come out as doctors, engineers, architect, economists,
scientists and lawyers. When they start their profession they
should start it with a fresh mind which is not polluted with
dirty politics and are not influenced by others. Under the
existing circumstances, instead of becoming a genuine patriotic
professional, they start their profession with a political mind.
Professionals in almost every sector of the country, which
includes private sectors and governmental sectors,
non-governmental or autonomous organisations etc. whether it is
a health authority, an educational institution or a financial
sector, anything and everything, is politicised (under the
banner of some kind of panels supported by the political
parties). However, the most important reason behind this mass
politicisation is because we cultivate the germs of politics
inside their mind, heart and brain during their student life and
shockingly at the undergraduate level. Eventually after
completion of their courses they would enter into different
fields with a politically biased mind which brings more harm
than any good to this nation. If there is any hope for this
unfortunate nation it has to be the student (not the student
politics) of today who, after completion of their studies, will
lead the nation tomorrow towards a better future.
'Freedom of assembly' (art.37), 'freedom of association'
(art.38) and 'freedom of thought and conscience, and of speech'
(art.39) are few of the host of fundamental rights we are
blessed with by our Constitution. Now time has come to
reconsider our stance regarding this issue and, if necessary,
amend the relevant provisions of our fundamental rights in
relation to student politics as we did in the very first
amendment to our Constitution, in 1973, to keep war criminals
out of the purview of the provisions of the fundamental rights.
Unlike 1973, this time once again, for a noble cause and to
build a strong nation, we need to restrict or limit the
aforesaid fundamental rights for the students to put a complete
ban on student politics (as a front organisation or wing of any
political party) and allow them to flourish in a peaceful and
tranquil academic atmosphere. And those who praise student
politics in its present form or glorifies it should simply be
told that for haven's sake please shut up!
The writing above is nothing but an observation only (Art. 39)
with the invitation to others to come forward with constructive
opinion regarding this very important issue for the betterment
of the common people as well as this nation. It will be good to
remember that the function of education is to prevent the truly
creative intellect from getting out of hand.
----------------------------------------------------------------------------------------------------------------
Rethinking appointment procedures of
Supreme Court judges
Barrister
M. Moksadul Islam
The Court would say Order! Order! Order! The nation, however, is
saying Shame! Shame! Shame! Recent controversies involving the
highest court of the land i.e. The Honourable Supreme Court of
Bangladesh shocked the entire nation. The nation demands to know
why someone who deserves to be elevated in the Appellate
Division was superseded. Are these honourable judges selected or
appointed? What procedure is followed for the selection or
appointment of them? And recent allegation of bribery against a
judge of the apex court can only be compared with the news that
counterfeit notes were discovered in the vault of Bangladesh
Bank!
Firstly, let us see how these judges are given the job to uphold
our Constitution. Actually it is the easiest of all recruitment
policy, allegedly, provided you are in the good book of the
political parties. President appoints a judge of the Supreme
Court under Article 95 of the Constitution. To become a judge a
citizen of the country will either have to be enrolled as an
advocate of the Supreme Court for 10 years [Art. 95(2) (a)] or
have to hold judicial office for ten years within the territory
of Bangladesh [Art. 95(2) (a)]. Once confirmed after two years
of his appointment, he not only exercises immense power
conferred under the Constitution [Art. 101 (original, appellate
and other jurisdiction), 102 (Writ Jurisdiction) and 103 (revisional
jurisdiction Complete Justice) etc.] without the fear of being
transferred, dismissed, removed or terminated from his job until
he is 65, [Art. 96(1)] but also enjoys financial security which
"shall not be varied to the disadvantage during his [Art. 147(4)
(e)] terms of office" [Art. 147(2)] and huge prestige. Unless a
judge resigns by writing to the President [Art. 96(8)] he can
only be removed from his post by the order of the President
under Article 96 (6) following the provisions mentioned in
clause 3, 4, 5 and 6 of Article 96 [Art. 96(2)] i.e. when the
Supreme Judicial Council [constituted under Art 96(3)] after
inquiry finds a judge to have ceased "to be capable of properly
performing the function of his office by reason of physical or
mental incapacity" [Art. 96(5) (a)] or has been "guilty of gross
misconduct" [Art. 96(5) (b)]. The President may direct the
Supreme Judicial Council "to inquire into the matter and reports
its finding" to him "upon any information received from the
Council or from any other source" [Art. 96(5)].
Let us see whether Art 95(2) (a) is enough for appointment of a
judge in the apex court of the country. There are different
types of advocates from different background practising or
non-practising but enrolled in the Supreme Court e.g.
Law-College graduate Advocates, University graduate Advocates,
master degree Advocates, Ph.D. Advocates, Justice Advocates,
Barrister Advocates or mixer of the same and some with other
educational qualifications in addition to the aforesaid. After
enrolment one may only keep his enrolment updated by paying his
dues and do not have to go to the court to keep is licence
intact. There are many who are only busy in the mention hours
which do not require any notable skill and may spend entire ten
years, even more, by mentioning petty or simple matters before
the Court e.g. extension of bail or stay. These lawyers may even
sign the Vokalotnamas (power) of many cases although they were
not in anyway involved in that case but to mention in the
morning hours or monitoring the daily cause list during the
court hours for other lawyers. Number of years an advocate is
enrolled with Supreme Court or number of cases he filed, under
no circumstances, can be the basis for selecting the name of an
advocate for the post of a judge of the Supreme Court.
As it is clear from Article 95 that President appoints the
judges. However, as a president he is not supposed to know the
names of the competent lawyers who would be suitable for the
job. Then the question arises who supplies him with the name of
the Advocates? Does he randomly select names from the enrolment
list or he gets the name from the Law Minister, Attorney General
or Chief Justice? In the 1972 Constitution (our first
Constitution) there was provision of consultation with the Chief
Justice. However, it is not there anymore in our present
Constitution and consultation with the Chief Justice is not
required anymore.
According to the former Law Minister and also present and former
Attorney General the Chief Justice provides the President with
the name of the advocates, through the Prime Ministers office
(Art. 48(3)], to be appointed as additional judges of the
Supreme Court. This begs the question if that is so then how
Justice Syed Shadidur Rahman's name went to the President when
there was allegation against him of misappropriating of the
Supreme Court Bar Association's fund when he was holding a
position of the Association.
If we cannot get a modern judiciary with honest persons the poor
citizen of this country will have no place to go for justice.
Under the banner of political parties we lawyers are clouding
the atmosphere of the judiciary for no good reason. Sadly
institutions like Bar Council, Bar Associations are under the
bad influence of political parties. Attorney General's office is
a constitutional post and should serve for the causes of the
citizen of this country. However, are they serving for the
purpose for which they are appointed?
Recent incidents regarding Justice Syed Shadidur Rahman can
never be an isolated event but only one of the many issues
buried under the carpet which need to be addressed to set up a
modern and competent judiciary. People's Judiciary.
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Custodial
deaths: Let's bell the cat
Barrister M. Moksadul Islam
No one is safe anywhere in this country. It simply has become a
dangerous place to live. The entire nation is living in fear.
Unnatural deaths in the hands of terrorists have become a common
phenomenon of this country. Last year on average 10.5 people
were murdered everyday. On top of that scores of people are
dying in the police and jail custody under suspicious
circumstances. This has made people more fearful for their
safety and lives. There is nothing call safe custody in this
country. It is not the foreign terrorists but it is the insiders
the people are scared about. People are pointing their fingers
towards the law enforcing agencies as well. On many occasions
people are not hesitating to term the police as the lawful
terrorists of the country. It is not desirable that the force
which supposed to protect us can possibly torture us to death.
Under the guise of actions like 'Operation Clean Heart' or
otherwise people are dying in the police and jail custody
allegedly due to cardiac attack. General people, however, are
not readily willing to buy this cheap excuse without a
convincing corroboration. People are a bit suspicious about all
these custodial deaths.
There are safeguards in our Constitution against violation of
human rights. Article 32 states that 'No person shall be
deprived of life … save in accordance with law'. An arrested
person must be produced before the nearest magistrate within 24
hours of his arrest is a mandatory requirement under Article 33
of our Constitution. Similar provisions are also present in
Sections 60 and 61 of the Criminal Procedure Code (Cr. P. C) and
Section 324 of the Police Regulations of Bengal (P.R.B). Section
467 of PRB has explained the duties of a Magistrate in this
connection elaborately and clearly. Besides the abovementioned
there are many judicial pronouncements and observations made by
our Courts in different landmark cases. For example Yasmin
murder case observed investigation by someone else other than
the police when the police themselves are the accused. And in
the case of 'Bangladesh Legal Aid and Services Trust (BLAST) and
others vs. Bangladesh' the High Court Division gave 15 point
directives in aid of Sections 54 and 167 of the Cr. P. C.
However, nothing is working and still people are dying in police
and jail custody under suspicious circumstances. We are not sure
whether the police or the Magistracy are following any of the
provisions narrated in the book.
No one knows why all these custodial deaths are not properly
investigated. Is closing or transferring or even suspension of a
police officer is enough punishment for all these alleged
unnatural deaths?
Police takes recourse to section 167 to take a detainee to their
custody or remand on the plea that they need more time to
investigate the matter. The very word 'remand' is missing in
this section. However, this taking to the police custody is
popularly known as 'taking on remand'. Oxford Dictionary of Law
(New Edition) defines remand as 'to commit an accused person to
custody.' However general people of this country by the word
'remand; understand inhuman torture, assault, beating up and
death.
Any evidence extracted by oppression is not admissible. Then
what is the reason behind the alleged tortures inside the police
custody? It is alleged by many that to extract money illegally
from the accused or his relatives police inhumanly tortured
them. Many other alleged that they were tortured at the
instigation of interested quarter e.g. political opponent.
Law and order of this country is going down to bad to worse
everyday. Government has taken different kind of measures
including draconian action like Operation Clean Heart, RAT etc.
However, it has failed to control the uncontrolled insecurity.
In an independent country all her citizens want to think that
they are safe at least in their own country. But the reality is
different. Let's not count the number of people who died in
police custody since liberation because even a single illegal
death in the hand of law enforcing agencies is unacceptable.
Our police force is not only ill trained but somewhat arrogant
and probably lacks human compassion. What about the magistracy?
Are they taking steps in accordance with the law to protect
human right? Well, it is now accepted fact that there are many
who are ready to file an application before the Court by
swearing affidavits in the negative.
Regarding recording of confession by Magistrates section 467 of
PRB states that Magistrates should clearly understand the great
importance of giving their closest attention to the procedure to
be followed, from first to last, in recording of confessions.
The said procedures, amongst others, in short are that (1) try
to record confession during court hours (2) ascertain when and
where the accused was first placed under police observation,
control or arrest, (3) the accused shall be given three hours
for reflection, during which period he shall not be in contact
with any police officer, (4) during examination normally police
officer should not be present, (5) accused should understand all
the possible legal niceties, (6)(a) accused should be able to
speak voluntarily, (6)(b) cognizance of ill-treatment should
promptly be taken and any indications of the use of improper
pressure should be at once investigated. If any injury is
noticed on the body of the accused or is referred to him then
the accused should be asked how he came by them and should seek
medical attendance. Similarly section 176 of the Cr. P. C.
requires a Magistrate to hold an independent inquiry to the
cause of a suspicious death in the custody of the police. We are
not aware of many cases where magistracy has acted in accordance
with all the provisions outlined above.
In the prevailing circumstances not only we need to ensure that
all laws and procedures are followed by the police and
Magistracy but also it has become imperative that all the police
custody should be monitored through CC (Close Circuit) TV. All
the custodial deaths must be verified by another independent
doctor nominated by the victim's family. Here a chronological
priority list of a typical family is necessary to avoid
confusion.
Unless we change our perception about life and look at other
fellow human being with compassion our citizens will always
become the victims of unnatural deaths. No civilised nation can
allow suspicious deaths in the hand of law enforcing agencies
and let them off the hock very easily. Time has come that we
speak out clearly to bell the cat immediately and ensure that no
one is above the law.
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Jatiya Sangsad vis-à-vis
women lawmakers
Barrister M. Moksadul Islam
Discrimination on the ground, amongst others, of sex is barred
by Article 28 of the Constitution of Bangladesh under the
heading of Fundamental Rights (Part III). Notably Article 28(2)
states that "women shall have equal rights with men in all
spheres of the State and of public life". Equal opportunity,
inter alia-for woman, in the public employment is also
guaranteed under Art. 29(1) and (2) which is also a fundamental
right. Being fundamental rights all these can be enforced
(Article 44) before the writ jurisdiction of the High Court
Division of the Supreme Court under Article 102(1). As
exceptions to those fundamental provisions there are additional
special provisions for their advancement and for the purpose of
securing adequate representation by women (Art. 28(4) and Art.
29(3)(a) respectively). Participation of women in all spheres of
national life has been described by our Constitution as a
fundamental principle of the state policy Article 10). Another
fundamental principle of the state is that it will encourage
special representation, inter alia, by women in the local
government institutions. At present, under some kind of
arrangements, women are representing women section of the
society only at the Union Parishad level. If we read Art. 9,
Art. 28(4) and Art. 29(3)(a) together we would find that
apparently peasants, workers, children have been put in the same
line with the women and seemingly classed as 'backward section
of the citizens', when the Hon'ble Prime Minister and the leader
of the Opposition both are females.
Nowadays many respectable women of our society are found to be
busy in organising seminars, symposiums and workshops in order
to voice their causes. On the other hand peasants are struggling
to get fare price for their crops, workers are showering in
their own sweat and homeless children are crying in the street.
When more than 80 per cent of the total populations are living
below the poverty level, sadly no one is there to voice their
concern or to represent them anywhere in a meaningful way. The
purpose of this writing is not to create any confusion but to
look at some issues we would have to deal with in order to get
representatives, as envisaged in our Constitution, from women
(i.e. backward section) of the country.
There are two important aspects which would require close
attention. Firstly, what should be the number of women members
in the Parliament? Some of the respectable and well-established
women are asking for even 150 seats exclusively for women,
whereas political parties are offering a maximum of 64. This
number game should not create that much of a complicacy. After
the exchange of few heated offers and counter-offers it is
certain that at one point the hammer would fall. The number is X
and it is settled. Now the most important question would be:
Should they be selected or elected? And what would be the mode
of such selection or election?
Previously following the arrangement under Art. 65(3) of the
Constitution, a political party, singly or with coalition or
alliance, with the majority seat in the Parliament used to
select or nominate 30 seats for the women members of the
Parliament. This arrangement expired on the 14 July 2001 and
subsequently this arrangement was not amended to extend the said
period, and it would require amendment of art.65 (3) of the
Constitution.
Previous arrangement may not be claimed to be a democratic
process in a true sense and to overcome this inopportune
situation it has been proposed by the women organizations that
they should be elected directly by the people. It should be
mentioned here that there is no bar for any woman to contest a
seat on her own right under the principle of equal opportunity
or under Article 65 as a regular candidate. However, politicians
and many women's organisations want to exhaust other provisions
contemplated or guaranteed for the backward section of the
citizens.
Options on the table are that there should be one female
constituency consisting either of four regular constituencies or
two regular constituencies. The other possibility, as proposed
by some, is that there should be at least one female
constituency in each district. Whatever means we adopt,
obviously there would be a clash in between the regular members
of the original constituencies and the concerned female
constituency member. Besides, there would also be a
jurisdictional problems.
It may also be argued, when, if ever, the regular members of the
contemplated female constituencies are also women at that time
what is the use of another woman to represent the women section
of that constituency. It has also been proposed by many that
each political party would reserve a certain numbers of seats
only for women nominees. The problem here is that where are
those generous politicians who would give up their claim to
contest a seat after being involved in politics for many years.
Whatever may be the number of the female constituencies, they
should be elected like any other member of the Parliament,
together with the regular members or afterwards. As a note of
caution we need to keep in mind that a separate election
exclusively for the female constituencies is really an expensive
business.
Whatever may be the mode; to avoid any unnecessary conflict with
the other regular members within a female constituency it is
necessary to identify the duties and responsibilities to be
assigned to female members in order to represent the women
section of the society. Any woman parliamentarian elected from
any female constituency should be allowed to bring a private
member's bill in the Parliament for the other members to discuss
the matter elaborately. As an exceptional case this kind of
bills should not be allowed to become law by simple majority,
rather they should only be passed by two-third majority;
otherwise under the prevailing voting system in the Parliament
the Opposition would not be able to build up a concrete
opposition.
As creation of these women members is for a special reason, it
would require a special treatment. Required two-thirds majority
should not cause any concern to the women parliamentarians
because if a party wants to create unnecessary confusions they
would have to face about half the population in their next
general election. Most importantly, the powers and privileges of
this special kind of members under no circumstance should be the
same as those of the regular members. The question is not who
has more power than the others but the question should be for
what purpose they have been created.
All the powers and privileges of these women parliamentarian
should revolve around the needs or for the advancement of that
section. To achieve that goal, rights, responsibilities, powers,
duties and privileges of these new members need to be identified
so that they can serve the cause for which they have been given
mandate by the general people and they do not become an
ineffective institution like many others in our country.
Fear of contempt
discourages people to inquire court's transparency
Barrister M Moksadul Islam
The
legislative, the administrative and the judiciary are the three
apex organs run a democratic country with rule of law. Each one
ought to work separately under the doctrine of 'separation of
power'. One also ought to check other when anyone oversteps its
mandate and this ensures a balance between them.
It often alleged that many of the administrative institutions of
this country are controlled by incompetent people. Probably none
of the aforesaid institutions would contest these observations.
And apparently that is the only democratic right we still enjoy,
although no one cares about what we say as there is hardly any
accountability. We can talk and write about the aforesaid two
apex organs in good faith and portrait their genuine picture
without the fear of being indicted. However, what do we know
about the third organ that is 'The Judiciary'? The common answer
is either you keep yourself quiet otherwise a contempt
proceedings will be drawn up against you. However, is that so
easy?
Confusion over 'Contempt'
What is 'Contempt of Court'? Contempt of Court is so manifold in
its aspect that it is really difficult to lay down any exact
definition of the offence. A person can be held on contempt if
his mucky hand touches the pure fountain of justice that is,
inter alia, by scandalising the Court itself, or by abusing
parties to actions, or by prejudicing mankind in favour of or
against a party before the cause is heard. Lord Chancellor
Hardwicke said 'there cannot be anything of greater consequence
than to keep the streams of justice clear and pure ……'. This
happens when someone acts or writes to bring a court or a judge
into contempt or to lower his authority or to interfere with the
continuity of the crystal clear flow of the stream of justice or
the lawful process of the Court.
However, under no circumstance contempt proceeding should be
drawn up against someone for criticising the judicial authority,
in good faith, for corruption and inefficiency. The object of
contempt proceeding is not to afford protection of judge
personally from imputations from which they may be exposed as
individuals. Blackburn J said "The phrase 'contempt of court'
often misleads persons not lawyers, and causes them to
misapprehend its meaning and to suppose that a proceeding for
contempt of court amounts to some process taken for the purpose
of vindicating that personal dignity of the Judges, and
protecting them from personal insults as individuals. Very often
it happens that contempt is committed by a personal attack on a
Judge or an insult offered to him; but as far as their dignity
as individuals is concerned, it is of very subordinate
importance compared with the vindication of the dignity of the
Court itself...."
The issue to be addressed
as a last resort people beg before the Court but do they get
justice? A Court can put you behind the bar and take away your
freedom and human rights, it can hang you to death and take away
your precious life, it can evict you from your home, and it also
can takeaway your children and give it to someone else. It can
keep police officials standing for hours for not saluting its
flag. The Court can also issue a suo moto Rule Nisi calling upon
an editor and reporter to explain as to why contempt proceeding
should not be drawn up against them for publishing a particular
news item even though there were other pressing issues which
escaped their Lordships kind attention. Actually anything and
everything their lordships may deem fit and proper can be
ordered by the Court. And for these acts of kindnesses, as in
duty bound, we always pray before the learned and honourable
Court.
Judges are hardly accountable to anyone but, well to some
extent, to themselves. However, if you are aggrieved by a
decision of Appellate Division of the Supreme Court you are
stuck.
Given that judges hold such enormous powers there is hardly any
information general people know about these learned and
honourable people and their activities. People possess wrong
notion about 'Contempt of Court'. Like the other two main
institutions people deserves to know how judiciary is handling
their cases. They also deserve to know whether there is any room
from improvement to set up a modern and effective judiciary.
There is hardly any writing or discussion about a particular
judgement. Considering the time and cost involved in the justice
system if someone fails to appeal against a decision of the
court, which may be was an erroneous one, it will remain buried
as a flawed decision. If the same is reported in any 'law
decision book' one might even tried to take advantage by citing
or submitting that flawed judgement before the Court. One must
not forget judges are also human being and to err is human. So
it is obviously possible for any judge to come to a conclusion,
which was erroneous, and a reasonable observation or comment on
it cannot amount to 'contempt of court' unless the matter is
sub-judice.
Contempt proceedings should only be drawn up only when there is
extremely strong reason for doing so. Post-mortem report of a
judgement would not only enlighten the general people of this
country about a case but the same would also be a good reading
stuff for the law students and other judges alike and would
certainly avoid any future miscarriage of judgement. People
deserve to know whether the judges reasonably applied their
judicial mind when they exercised their discretionary powers
given under the law.
A judgement not only should decide the case before the Court but
may also approve or overfull older decisions if it respectively
agrees and does not agree with the previous one under the
'doctrine of precedent'. Different decision on a single 'point
of law' given by the two benches or courts of the same tier
could put the lawyers in trouble when advising their clients. To
avoid any confusion we need some kind of mechanism to monitor
court activities. An academician could help the judiciary by
speaking out in good faith about a judgement and comparing with
other decisions by using prudent knowledge they certainly
possess. How come there is hardly any discussion or criticism
about the judiciary and its decisions unless any valid reason of
not doing so. The answer is the fear of 'contempt of court'
proceedings.
Concluding remarks
Recent protests and writings about the supersessions, in the
High Court Division, were really deserves appreciation. Citizen
of this country are in dark about the judiciary as no one wants
to find himself before the court with a contempt proceedings
hanging over their head. Actually people are scared about the
judiciary and the fear of being getting caught in the trap
always remain active in the back of their head before uttering a
word about the judiciary.
Constitutional rights vis-a-vis
writ
Barrister
M. Moksadul Islam
A Writ
Under Article 102 of the Constitution the
People's Republic of Bangladesh the High Court Division
exercises its power of judicial review by issuing writs in the
nature of prohibition, mandamus (do it), certiorari (lack or
excess of jurisdiction) and quo warranto, against the concerned
public functionaries and a writ of habeas corpus [have the corps
(body) before us (Court)] against anyone, including a private
individual, if there is a violation of any relevant provision of
this Article.
Being a Constitutional enforcement it cannot
be taken away or curtailed by ordinary legislation [22 DLR (SC)
203] or even by amendment of the Constitution [1989 BPD (Spl)
1]. The jurisdiction under this Article is known as Special
Original Jurisdiction or writ jurisdiction. The Rule Nisi, which
may be issued under this Article, requires the respondent to
explain that his action is not unlawful and the temporary
injunction in the form of 'stay', which also may be granted
under this Article, impedes the concerned public functionaries
for a certain time or until the adjudication of the matter from
overstepping their power in violation of the Constitution. An
essay or article in a newspaper is not enough to interpret the
Article 102 comprehensively or entirely; so the write-up below
is simply a brief note about this magnificent Constitutional
right.
Article 102
Under clause 1 of Article 102 the High Court
Division may issue directive or order against 'any person or
authority including any person performing any function in
connection with the affairs of the Republic' for the enforcement
of the fundamental rights (read with the Article 44) guaranteed
in Part III of the Constitution. Right to move before the High
Court Division under Article 102(1) is itself a fundamental
right [Article 44(1)]. Although writ jurisdiction is an
equitable jurisdiction; however, power of the High Court
Division under clause 1 is not a discretionary power rather it
is obligatory for the Court to grant necessary relief to the
aggrieved person.
Clause 2 deals with the rights, which are not
fundamental in nature as mentioned in the Part III of the
Constitution. If the High Court Division is 'satisfied that no
other equally efficacious remedy is provided by law' on an
application by the 'person aggrieved', under clause 2(a)(i) of
the Article the Court may prohibit 'a person performing any
function in connection with the affairs of the Republic or of a
local authority' from taking any illegal steps (writ of
prohibition) or coerce to do something which is 'required by law
to do' (writ of mandamus—do it). Chapter III of the Part IV of
the Constitution deals with the formation and functions of local
authority. Writ of prohibition stops the executives from taking
any steps beyond the mandate they were given (negative sense)
whereas writ of mandamus orders the executives to do something
what they were supposed to carry out (in the positive sense).
Likewise, regarding clause 2(a)(i) (above),
if there is 'no other equally efficacious remedy' and, once
again, only on an application by the aggrieved person, under
clause 2(a)(ii) of Article 102 the High Court Division may
declare that the 'act done or proceeding taken by a person
performing functions in connection with the affairs of the
Republic or of a local authority has been done or taken without
lawful authority and is of no legal effect' by issuing a writ in
the nature of certiorari (lack or excess of jurisdiction).
A writ of certiorari restrains the public
functionaries within their jurisdiction. Proceedings are ultra
vires (illegal) which was conducted without complying the
statutory procedure, when the principles of natural justices
(i.e. a man cannot be condemned unheard (audi alterram partem)
and a man cannot be the judge of his own cause (nemo debet esse
judex in propria causa). [R v. BSMS Magistrate ex p Pinochet (No
2), 1 All E.R. 577]) or the principle of legitimate expectation
[6 BLC 681; 51 DLR (AD) 56] was breached.
Clause 2(b)(i) of the Article invests the
High Court Division, 'on an application by any person', to issue
a writ of habeas corpus, to bring someone (detained unlawfully)
before the Court. A writ of habeas corpus can be issued against
anyone including a private individual. Recently in the cases of
Ashim Kumar Ukil, a student leader and Muhiuddin Khan Alamgir, a
former state minister the Court issued writs of habeas corpus
and as the Court observed that the executives had to bow down to
the Court order and the hand (i.e. power) of the Court (i.e.
order of Court) is longer (i.e. more powerful) than that of the
Government. Clause 2(b)(ii) of Article 102 sanctions the High
Court Division a jurisdiction to issue a writ, in the nature of
quo warranto, to inquire under what authority a person is
'holding or purporting to hold a public office'.
In short, under clause 1 of the Article 102
the High Court Division may issue a writ of prohibition or
mandamus for the enforcement of the fundamental rights
guaranteed under the Constitution. Under clause 2(a)(i) again
the High Court Division may issue a writ of prohibition or
mandamus if the executives overstep their mandate or neglect
their duty respectively. Under clause 2(a)(ii) the High Court
Division may issue a writ of certiorari to detain the public
functionaries within their jurisdiction. Clause 2(b)(i) empowers
the High Court Division to issue a writ of habeas corpus against
anyone to prevent unlawful detention and under clause 2(b)(ii)
of this Article the High Court Division may issue a writ of quo warranto to find out under what authority someone is holding or
purporting to hold an office of the republic.
An interesting point to note is that although
the Court will not entertain an application on a premature
grievance however, the petitioner does not have to wait for his
legal right to be invaded as he can bring an application when
there is a threat of immediate peril to his legal right [22 DLR
(SC) 437].
Relief
The High Court Division, if it does not
reject an application summarily' may issue a Rule Nisi calling
upon the respondent to explain as to why the order and/or action
(hereinafter mentioned as 'Impugned Order'), should not be
declared to have been made or taken without lawful authority and
is of no legal effect. If the petitioner can make out a strong
prima facie case the High Court Division might even pass an
interim order by staying the operation of the Impugned Order for
a certain period or until the disposal of the Rule.
Alternatively the High Court Division may also order to maintain
status quo. The Court also has the discretionary power, under
the High Court Rules, of awarding cost of the application
however the rules are not detailed.
Limitations
A close scrutiny would reveal, inter alia,
that there are two notable limitations in the abovementioned
clauses. Firstly an application under Article 102 can only be
made by the 'person aggrieved' with the exception of a writ of
habeas corpus and a writ of quo warranto. Someone who has got
some kind of relationship with the detainee can bring an
application for a writ of habeas corpus and an application for a
writ of quo warranto can be brought by anybody. In other
occasions the petitioner must prove locus standi (who has
suffered a legal grievance) to come before the writ jurisdiction
(another exception is the Public Interest Litigation-where also
the petitioner does not have to show any nexus to bring an
application under Article 102).
The aforesaid requirement that only on an
application by the 'person aggrieved' High Court Division may
issue a writ means that the Court may grant relief to a person,
only, who came before the Court. The Rule issued and that stay
guaranteed in favour of the person who applied before the Court
does not have a general effect in relation to the other
aggrieved persons who failed to come before the Court, even if
others also were the victim of the same order and the said order
was made on the same ground; as the Court would not have any
means to adjudicate the cases in relation to the others. The
facts and circumstances of those cases could be different from
that of the one before the High Court Division.
However, let us suppose that the facts and
circumstances of the other cases and the ground of the order in
relation to the others was the same as the one before the Court.
The orders in relation to all, including the one who applied
before the Court, were made by the same Impugned Order and the
orders were made by the same respondent. Does the Rule issued,
the stay granted, the judgment given (when after hearing if the
Rule was made absolute) or other directions given by the Court
would affect the orders in relation to the others who failed to
come before the High Court Division considering the fact that
the orders were made by the same respondent, by the same
Impugned Order (i.e. all the orders to the different persons
were copies of same piece of paper), on the same ground and
under the same facts and circumstances.
The answer to this question is negative. It
is respectfully submitted that it is really hard to convince
oneself how an Impugned Order which the High Court Division of
the Supreme Court found illegal remains valid in relation to
those who simply do not have any means to come before the High
Court Division or do not even know that the same has been
declared illegal by the Court. When it is very much clear from
the face of the documents or otherwise that the same Impugned
Order would affect others in the same way as it affected the
petitioner and those others would also suffer same injustice, a
direction in the form of an automatic direction (below) against
the respondent, in relation to that Impugned Order, would
probably caution the respondent to take any further action in
violation of the Constitution and certainly would reduce the
number of the writs and would also save the valuable judicial
time of the Court. An illegal action cannot remain valid and
once declared illegal should always remain illegal at least
under the same facts and circumstances.
The other notable limitation of Article 102
is that an application under the clause 2 of the Article will
not be entertained if there is any other equally efficacious
remedy provided by some other law the petitioner must bring his
application under that law. There is no such limitation for
clause 1.
Under any facts and circumstances a writ
shall lie or not is a big question the lawyers and Judges are
facing everyday. 'Person', for the purpose of Article 102,
'includes a statutory public authority and any court or
tribunal, other than a court or tribunal established under a law
relating to the defence services of Bangladesh or any discipline
force or a tribunal to which Article 117 applies' (clause 5 of
Article 102). Clause 2 of the Article 117 bars any application
before the writ jurisdiction in relation to the matters which
are within the jurisdiction of administrative tribunal, unless
the action taken is mala fide (in bad faith) or coram
non judice (not properly constituted). Article 152
interprets 'law' as 'any Act, ordinance, order, rule,
regulation, bye-law, notification or other legal instrument, and
any custom or usage, having the force of law in Bangladesh'. A
writ will not lie even against a public functionary when
performing its action in private capacity [1995 BLD 124]
(exception-habeas corpus).
Clause 3 bars an application under Article
102 'in relation to any law to which Article 47 applies' which,
amongst others, creates immunity from challenging any law on the
ground of violation of fundamental rights where the Parliament
expressly made that law to give effect to any of the fundamental
principles set out in Part II of the Constitution.
If an interim order, under clause (1) or
(2)(a), is likely to 'prejudice or interfere' with any
development programme or 'being otherwise harmful to the public
interest' clause 4 of Article 102 requires the Court to give a
reasonable notice to the office of the Attorney-General (AG) and
to give him an opportunity of being heard. It further requires
the High Court Division to be satisfied that the interim order
would not interfere with any development work or is not harmful
to the public interest.
Appeal
Article 103 sanctions the Appellate Division
of the Supreme Court the power to hear appeal, with leave of the
Appellate Division, from the High Court Division. Under clause
2(a) if the High Court Division ‘certifies that the case
involves a substantial question of law as to the interpretation
of this Constitution’ an appeal shall lie as of right. Beside
the jurisdiction of doing ‘complete justice’ under Article 104
the Appellate Division, under Article 105, has the power to
review its own ‘pronouncement or order’. However, in between
Article 102 and abovementioned Articles there is a Judge sitting
in Chamber known as Chamber Judge, constituted under the Rule of
Supreme Court.
Submissions
When the Chamber Judge or the full bench of
the Appellate Division stays the stay granted by the High Court
Division leaving the Rule to be heard on a future date this
takes the petitioner back to square one and a Rule without the
order of stay, on most of the occasions, puts him in nowhere, he
would rather prefer to withdraw his application and try to
negotiate and compromise with the crocodile while he knows that
he will have to share the same water with him.
The High Court Division may also discharge a
Rule on the ground of jurisdiction (Article 102(5) read with
Article 117), a very controversial area [44 DLR (AD) 111], or as
because other ‘equally efficacious remedy is provided by law’,
again with lots of shortfalls. On many instances the relief
which may be awarded by the other forum or under the other law
is of no assistance to the petitioner, for example, when the
other forum or law does not provide any relief of injunction or
trend shows that the Court constituted under that forum or
applying that other law is very reluctant to use its discretion
to grant any interim order; whereas the petitioner’s grievance
can only be solved by an order of injunction with immediate
effect. One of the most alluring reasons, amongst others, for
which many petitioners would prefer to come before the writ
jurisdiction is its power to grant an interim order of
injunction in the form of stay, like a declaration suit, because
he needs immediate relief.
Even if the Chamber Judge or full bench of
the Appellate Division stayed the stay granted by the High Court
Division leaving the petitioner only with the Rule or when the
High Court Division issued only a Rule and eventually after the
hearing of it the Court makes the Rule absolute (of course in
favour of the petitioner) and declares the Impugned Order ultra
vires and is of no legal effect. In many occasions this
declaration by the Court dose not help the petitioner in anyway
as either the subject matter of the said Rule would have been
frustrated or the said Rule would become infractuous
because of the delay in delivering a final order.
Let us look at a service matter. There is
nothing wrong in transferring a servant of the republic to
another place however, the Court would intercept when it is made
in violation of the Constitution e.g. when the petitioner was
transferred in bad faith (mala fide). However, in a
situation e.g. when a petitioner was transferred, in violation
of the constitution, hence the Court declared the action ultra
vires; there is no safeguard to stop the executive to
transfer the petitioner again in violation of the Constitution.
The exorbitant fees, which does not follow any guideline and
without any ceiling whatsoever, a senior counsel would usually
charge to file an application could be something beyond the
reach of many. If a petitioner is transferred again and again
and each time in violation of the Constitution, e.g. in bad
faith (mala fide), he would have no other option but to
save his job and comply with the transfer order. The power of
the Court of passing such other and/or further order or orders
as the Court may deem fit, in the form of an automatic direction
(below), ought not to be left unattended under this or any
circumstances.
It is humbly submitted that the cost which
are awarded by the Court most of the time does not correspond
with the actual cost of filling an application before the writ
jurisdiction. Award of appropriate (at times exemplary) cost of
making an application in favour of the successful party would
undoubtedly discourage the executives from taking any further
action in violation of the Constitution and the lawyer from
bringing any frivolous application. This would certainly reduce
the number of the writ the High Court Division is dealing
everyday. However, award of cast against the petitioner need to
be exercised with great caution so that it does not scare of the
genuine aggrieved person from coming before the Court.
The High Court Division, especially on a
motion day, is bombarded with a huge number of writs. Humble
submission is that the lawyers should not indulge themselves to
hammer the writ jurisdiction with applications which were not
maintainable initially. Surprisingly on many occasions some of
the respondents do not even bother to reply the Rule and this
confirms the fact that we act on the principle of ‘nil
responsibility and zero accountability’. As the Court
adjudicates a writ application summarily, a properly trained and
proficient defence team is required to reduce the number of
Rules, which would eventually be discharged after the hearing of
it. As an unwarranted Rule and stay order in a commercial matter
could cost this poor country very dearly. It would not be fair
to expect from a Judge, sitting inside a noisy, overcrowded and
boiling Courtroom, who is hearing huge number of different kind
of cases everyday to balance every minute details of every
single case before issuing a Rule or granting an interim order
of stay.
Recently the High Court Division has
acknowledged and expanded the field of writ jurisdiction on the
ground of public interest litigations (e.g. ETV case). To
protect the interest of the public and to do complete justice we
need to identify the limitations of our writ jurisdiction and
try to overcome them. There are incidents when, even after the
Court has granted an order of stay, the executives are bending
the Court order, for example, by making the petitioner an OSD
(i.e. taking away his charge from him) or by executing the
action just before the certified copy of the order reached their
hand.
Automatic Direction
Most respectful and a humble submission is
that after the hearing of every writ petition a mandatory
direction, in the form of an automatic direction, of asking
itself that for end of justice does the Court requires to pass
any other and/or further order or orders and of making an
observation, in its deliberation, to that effect would certainly
help to overcome this kind of limitations and limitations which
might arise in other cases. Award of cost of making an
application needs to be considered with great care, especially
against the respondent (may be personally) who the Court holds
is more responsible than any others. Although, the Court gives
its opinion in concrete case and does not answer academic
questions [44 DLR (AD) 319, 340], however, a thorough research
and a consultation paper on this very popular and effective
jurisdiction of the High Court Division is long overdue.
Women on top
vis-à-vis educated mother
Barrister M. Moksadul Islam
There is a Bengali saying i.e. 'sarbo aungey betha malam
lagabo kotha?' means 'pain is all over the body where to
start rubbing balm?' This saying is also true about the
depressing condition of this nation. All the problems of this
nation are intertwined with each other. Any isolated discussion
on one ignoring the others can never produce a meaningful
observation. Many would easily but wrongly may even give up
saying there is nothing much people can do to get to the bottom
of these problems as the country is drowned into thousands of
difficult dilemmas. Gender discrimination is only one of the
thousands of these vices we are living with.
Luckily male and female are the only two genders in this planet
and I cannot imagine a third or fourth one. Although apparently
one has its own existence without being attached to the other
however, no one is complete without the other as spiritually,
psychologically and emotionally they are actually a single
entity. This single entity ensures continuity of life. Although
together they are a single-unit', however, at times we portray
one as other's 'better-half' or 'other-half' (in a
relationship), and 'counterpart' (when in conflict). For the
purpose of this discussion, I would exclude male species from
the 'single-unit' and consider them as 'better-half',
'other-half', or 'counterpart', although at many stages of life
whatever is true about women may also be the same for men. In
this deeply divided society the gaps between the haves and
have-nots is colossal. As a result what may be true for rich or
educated family may not be true for poor or illiterate family.
Situation may change drastically depending on the upbringing of
an individual. These diversities of socioeconomic status make it
very difficult to jump into a general conclusion about the
issues relating to female genders.
Daughter, sister, colleague, wife, mother, married, divorced,
widow, old and in-laws are some of the notable different stages
of life a complete woman passes through. Since time immemorial
women are always considered inferior to men and there are many
synonyms associated with the word 'female' suggesting woman a
weaker gender in order to make them believe that they are
insignificant in the society. Although it is a proven fact that
under good environment and when women were given equal
opportunity they can serve at the front line of everything in
equal strength against their counterparts. Just to mention here
that it is not only the men who are counterparts of women but,
under the prevailing social structure, on many occasions the
women themselves are also the principal counterparts of other
women especially the "in-laws".
In the existing socioeconomic structure we do not allow and at
times prohibits them to go out of the abode on their own,
although, at times it is done for their own protection. However,
although in a slow pace and in smaller number they are coming
out of their nest and spreading their wings in different fields.
Those who got the opportunity (earned or otherwise) to come on
the top are now asking for opportunity to voice their own causes
from inside the policy making institutions. Sometimes they are
very loud about this 'women empowerment' and not to mention in
days like Women's Day their voices are more clear and really
demanding and our lawmakers are struggling to find a suitable
formula to accommodate them.
It is true that no one can create effective awareness but those
who are the victims of these social vices. Keeping that in mind,
framers of our Constitution kept clear provisions for the women
to represent themselves in all sphere of life. There are two
options available in the market one is that they should be
nominated or selected, obviously this would be a non-democratic
process and the other is democratically i.e. by direct vote. In
my view selection or nomination would not serve the purpose in
anyway as it only would be an ornamental addition to the
parliament and may expose women genders to nepotism or
exploitation. Direct election would be the best possible way
however I would leave it for the lawmakers to find out a
suitable formula in order to empower the women section of the
society. Let us concentrate on other issues in this matter and
try to find out whether empowerment of women alone, even in a
proportional representative system, would really solve any of
these problems or whether women are only crazy to go on the top
or would not mind to become a set of imitation in the
parliament.
Some of the major obstructions which are hindering the process
of welcoming them into the broader picture of this nation are
dowry, acid throwing, superstition, rape, and child-marriage,
fatwa (decision) with bad intention, prostitution, illegal
trafficking, norms and discrimination. Each and every one of the
aforesaid problems is bigger than the other one and closely
entangled or associated with many other vices. These other vices
are not usually addressed by the so-called 'high society girls'
as gender problems. For example 'fatwa'-may look like a feminine
problem however it is actually a social problem and concentrated
mostly is the rural areas which are full of dodgy 'pirs'
and half-educated Imams. Most of the unfortunate incidents
involving 'fatwa' decreed, sometimes at the behest of
unscrupulous people, by the half-educated Imams with
superstitious believes and against the illiterate and poor
people. In other words to solve the problem of 'fatwa' we need
to equip ourselves and our Imams with proper education. The same
is true about 'dowry' which undoubtedly is closely linked with
'poverty', 'child marriage', 'illiteracy', 'norms' and
'superstitions'. It is generally the older women of the family
who are more vocal and active to find a husband for a small girl
as little as 9 or even younger. How about illegal trafficking,
prostitution, domestic maid, child labour? Are they independent
problems? Without any doubt the answer should be an emphatic no.
These are also closely connected with 'poverty', 'ignorance' and
'illiteracy'. More importantly there are laws in place to punish
the perpetrator. Why then all the aforesaid problems are on
raise? The simple answer is lack of awareness, poverty,
overpopulation, illiteracy and the way we look at women, a weak
gender. None can be solved without solving many others.
At the encouragement of many women organisations and other
pressure groups quite a few special legislations are in place
and 'all the newly enacted special legislations have become
weapons for the unscrupulous people to harass and humiliate the
innocent'-[Whither rule of law? The Independent 22.01.2003], and
one of my learned friend rightly pointed out that most of these
new legislations are only to protect the physical structure of
the women instead of for the betterment of feminine gender in
general. In the learned lower Court there is a Court room which
is popularly know as 'Women and Children's Court. This
particular Court room is very busy and overcrowded than the
other Court rooms. Shockingly most of the cases filed before
this Court are simply false. Illiterate and poor women folks are
being persuaded (with or without force) or allured by the
crooked people to file false cases against the innocent people
out of previous enmity.
Political parities, as we all know, usually try to capitalise
from everything even if it is at the cost of others' agony.
Leader of the opposition certainly would visit a victim of rape
if there is any possibility of publicity; as if no such incident
happened when he was in power. Party in power would publish
statistical reports on the aforesaid issues apparently took
place during the rule of previous government; as if nothing of
that sort is happing in his reign.
Beside the aforesaid problems woman also sacrifices most in a
relationship with man. Marriage is an extremely complicated
chapter of life and one would not understand it before he ties
the knot. In a simplest term it can be stated that in one hand
family life may be described as bond of love, emotion, joy,
affection and sacrifice but on the other hand it can be full
with hatred, jealousy and sadness. If someone asks 'life is
complicated please cite an example' certainly I would reply
"conjugal-life". I would not dare to embark upon any discussion
on this matter as it is complicated and there are marriage
counsels or specialists to give valuable opinion on this matter.
Just to mention here that in some western countries men are also
organising themselves against women repression, although in a
low profile but in the national level. Species of masculine
gender be aware and look over your shoulders.
There are a good number of women organisations fashioned with
the high society girls, most of these are NGOs as well, and
other NGOs in the national and international level are working
very hard to salvage feminine genders from the aforesaid
problems in vain. Although many would contest this observation
especially if he is from the said sector and he would love to
picture this country only with NGOs and propaganda about its
success. He might even say 'only Allah knows what would have
happened to this country without the NGO sector'. Most, if not
all, of the NGOs are apparently working for the betterment of
women as it is a very fertile sector where donors usually love
to invest. Although there are conflicting reports about their
accomplishments in this sector but there is not doubt about the
imperial establishment many big NGOs have. Most frighteningly
there are allegations that like all other institutions of this
country NGO sector is also indulging themselves into party
politics under the shadow of main political parties and many of
them spend lion share of its fund for advertisement and other
secondary issues instead of the causes they meant to work for.
Beside the NGOs almost all the local and national dailies have
dedicated sections for the exquisite women readers. Dailies are
publishing weekly supplementary and most of the weeklies have
dedicated an exclusive section for the women gender. There are
also numerous magazines easily available in the market suitable
only for women. Radio and television channels are promoting
women causes to the best possible way. They are broadcasting
special programme in order to put them in line with their
'counter-parts'. Dark side of the electronic media is that it
always uses women, in their advertisement, as a sedative weapon
to allure consumers, even when the product is only suitable for
men. They would find a way to use women connected with the
product.
These problems are deeply rooted in the society and only law
and/or awareness is not enough to overcome any of the said
problems but we need to create awareness which will lead to
direct and constructive action. If we want to look at these
issues in isolation ignoring the other related issues nothing
can be achieved as our problems are multi-folded. We need a dual
action policy. One is to 'create awareness to take action' and
the other is to 'take positive action to accomplish that'.
Earlier one without the latter one would only lead to another
gossip.
As a quote we all know that an educated mother is the
precondition to achieve a prosperous and enriched nation and as
a mother a woman enjoys highest respect in our society. An
educated mother would be able to teach her son not to decree 'fatwa'
in bad faith against an innocent woman or tell her daughter not
to become nail in the shoes of her sister-in-law. Nothing can be
achieved easily unless we help them to get proper education. So
instead of only going about the issues which may not be achieved
easily without achieving other prerequisites we should concentre
on those other issues as well. To start with, before anything,
firstly we need to find a way to educate them.
In England after an advertisement of a product it says that the
product is 'as strong as women'. This nation really needs women
who are 'strong' and educated. Women empowerment alone may not
help to overcome any of the problems we all are concerned about
for the reasons aforesaid. First of all what this nation needs
most is educated mother.
Breaking the chains of impunity
Barrister M. Moksadul Islam
Human
rights are meant to be equal for all human beings and there in
no excuse for making different law for different groups of
people. And most important of all fundamental rights, a citizen
enjoys, is the right to life. Life is so precious to everyone
that all other fundamental rights are meaningless without it.
Sadly this right is under threat always. No one should be
allowed to take someone's life without due course of law. Extra
judicial killing, without being accountable for, is simply
inexcusable and can never be allowed under any circumstances
whatsoever.
Right to get justice is next important fundamental right. In
order to ensure justice our democratic institutions should be
upgraded to people's institution which would work for the
betterment of the people. No democratic institution should
suppress the people and take away their fundamental rights.
Violator of human rights, whatever his position is, should be
brought to book. No one is above law and makers of the law
should not consider themselves beyond law.
When machineries of the justice keepers become violators;
leaving the victims and their families with agony and grief in
vain; humanity cries with them. Indian Supreme Court observed in
a case reported in AIR 1997 SC 610 that "If the functionaries of
the Government become law breakers, it is bound to breed
contempt for law and would encourage lawlessness and every man
would have the tendency to become law unto himself thereby
leading to anarchism. No civilised nation can permit that to
happen. Does a citizen shed off his fundamental right to life,
the moment a policeman arrests him? Can the right to life of a
citizen be put in abeyance on his arrest? These questions touch
the spinal cord of human rights jurisprudence. The answer,
indeed, has to be an emphatic 'No'".
Those who are violating our fundamental rights are, apparently,
far beyond the reach of their victims. Is there any difference
between members of a disciplined force and terrorists when both
torture and kill others ignoring law? All these acts can only be
described as atrocities. Former one is patronised or protected
by the State and the later one is patronised by some godfather.
If the former group can be indemnified; one day time will come
when godfathers will press for the indemnification of the later
group.
Our democracy still is in its primary stage and yet to take an
institutional shape. We failed to give our citizens proper
education they need to understand democracy. The main feature of
democracy is the voting right. Sadly this voting right can be
purchased like any other commodities in the market. As a result
it is very easy, for our leaders, to interpret the provisions of
our Constitution, to legislate (e.g. Article 46 to legislate
Indemnity Ordinance) or not to legislate (i.e. Article 98for not
appointing additional Supreme Court Judges) as they please
because they need not worry about the next general election. In
the next general election they simply will purchase other's
democratic right. And most frighteningly these Articles are
being wrongly interpreted not by any layman but by senior
Advocates and Barristers of the country toeing the line of their
political parties.
Actually we shelter under our Constitution and interpret it
according to our need. Most of the people of this country do not
know what Article 46 talks about and how it contradicts with the
other fundamental rights guaranteed under Part III of our
Constitution (e.g. 27, 31, 32 and 35). Our politicians to
justify their actions always say that their actions were
constitutional; even when actually they were not. Both the
indemnity ordinances passed after the liberation, although the
requirements or conditions required to take resort to Article 46
were absent, were done in clear violation of Article 26 of our
Constitution and should be declared void. Article 26 clearly
states that laws inconsistent with the fundamental rights are
void.
Whatever be the label of an unconstitutional ordinance; be it
"Operation Clean Heart" or otherwise, the culprits who tortured
citizens to death should be brought before court of law to
ensure justice. Otherwise people will loose faith on the
democratic institutions. To break the chains of impunity,
amongst others, firstly, we need to separate the judiciary from
executive, should uphold constitutional provisions by giving its
true and correct interpretation.
Additional Supreme Court Judges
M.
Moksadul Islam
Our
Constitution has entrusted the Supreme Court with its
guardianship [18 DLR (SC) 62,65], at the same time Part VI of
the Constitution also talks about the formation of the
Judiciary. After some of our honourable Justices felt
'embarrassed' recently in a renowned case, the debate has taken
place among the lawyers and the law minister about the
appointment of additional justice in the Appellate Division.
Everyone would agree with the famous proverb that 'Justice
delayed, justice denied'. One of the reasons behind this
unfortunate delay, in delivering Justice in this renowned case
on time, is scarcity of Judges who can hear the case in the
Appellate Division of the Supreme Court.
Under Article 98 of our
Constitution the President has the power to appoint 'Additional
judges in the Supreme Court. Article 98 states that 'If the
President is satisfied that the number of Judges of a Division
of the Supreme Court should be for the time being increased, the
President may appoint one or more duly qualified persons to be
additional Judges of that Division for such period not exceeding
two years as he may specify, or, if he thinks fit, may require a
Judge of the High Court Division to sit in the Appellate
Division for any temporary period as an ad-hoc Judge and such
Judge while so sitting, shall exercise the same jurisdiction,
powers and functions of a Judge of the Appellate Division".
There are two parts in this Article. In the first part it makes
provision for the appointment of 'one or more duly qualified
persons'. Latter part of the same makes provision for the
appointment of 'a Judge of the High Court Division … as an ad
hoc Judge'.
We are not concern with
the first part. We simply want to know the meaning of 'a Judge'
and 'an ad hoc judge'. Does it mean that the President may
appoint one and only one High Court Judge, even if requires
more, as Additional Judge of the Appellate Division?
Alternatively, does it mean that the President may appoint any
number of Additional Judges, if requires, from the High Court
Division to the Appellate Division at any given point of time?
It is very much clear
from the said Article that the president was empowered to
appoint additional judges in the higher court to avoid
unavoidable circumstances. It can be mentioned that when the
Article says 'Number of the Judges', it simply means more than
one Judge. Needless to say that here 'a division' means either
the 'High Court Division' or the 'Appellate Division' of the
Supreme Court. Considering the entire sentence together, we,
without putting any unwarranted afford, would find, the rational
behind this Article is the appointment of Judges, for any
division of the Supreme Court if it is so required. The title of
the said Article: 'Additional Supreme Court Judges' also
inclines towards a plural number of the word 'Judge'. So the
wording of the latter part of this Article such as 'a' and 'an'
does not simply mean a single judge rather it undoubtedly means
one or any number of 'Judges' of the High Court Division. The
President may certainly select the Judges one at a time or
together. Otherwise the whole purpose of the Article 98 would be
frustrated. 'A Judge of the High Court Division' is nothing but
a substitution of the words, 'qualified persons', as mentioned
in the first part of this Article.
Let us look at the
Article 98 from a different point of view. Ever if we,
reluctantly, agree that under the said Article the President may
not appoint more than one Judges at one time who can guarantee
that there would not be any other eventualities in future? In
other words it was not said in Article 98 or anywhere in the
Constitution that the President, under Article 98, after
selecting the first one may not select the second and third one
and so on? It can be said with great certainty that the framers
of our Constitution must have felt the need of this Article
after considering future eventualities, when additional Judge or
Judges would be required, either in the High Court Division or
in the Appellate Division of the Supreme Court to dispose of the
case or cases on time. By referring 'one or more' in the first
part of this Article the framers of the Constitution had removed
any and all the unnecessary confusions about the number of
Additional Judges which may be appointed by the President when
there is a need for more Judges. The wording 'a' and 'an' in the
latter part of the Constitution should not create any confusion
after considering the very purpose of this Article together with
the title and contents of Article 98 as a whole.
Nomination of Women Parliamentarians is
Undemocratic Democracy
Barrister
M. Moksadul Islam
Article
11 of our Constitution under the title “Democracy and Human
Rights” states that “The Republic shall be a democracy … in
which effective participation by the people through their
elected representative in administration at all levels shall be
ensured”. Moreover under Article 65(2) of our Constitution a
Member of the Parliament must be ‘elected … from single
territorial constituency by direct election’.
About a
half of our population is women and without any doubt their
voices should be heard for our own good. Participation of women
in all spheres of national life has been described by our
Constitution as a fundamental principle of the state policy
(Article 10). Another fundamental principle of state is that it
will encourage special representation, inter alia, by
women in the local government institutions (Article 9). To
formulate a theory for direct election for the women
parliamentarians may not be an easy one and would certainly
cause conflict with the regular members. However any attempt by
the government to create rubber stamp Parliamentarians should
outright be rejected by the people. This issue need to be
addressed in a broader perspective.
Understandably any provision for a limited number of regular
seats to be reserved only for the women parliamentarians may not
be acceptable to many diehard politicians. Direct election with
the regular member or members would certainly create conflict of
interest between the members. However if we can identify the
causes where women representation is very much needed (e.g.
dowry, women education, etc.) probably we can directly elect a
woman with the regular member or members for those specific
purposes only. And regular member or members will have
exclusive jurisdiction in all other areas except those mentioned
above then there should not be any problem in directly electing
a woman member from a ‘single territorial constituency’ as
envisages in Article 65(2). For this specific purpose a ‘single
territorial constituency’ can consist of one or more regular
‘single territorial constituency’. A woman member should be
advised to avoid addressing areas where the regular members will
have exclusive jurisdiction.
The
provision for ‘reserved seats’ for 30 or 45 women in the name of
women empowerment is absurd as it goes against all norms of
democracy. This nomination or selection process may also lead to
nepotism and there is every possibility that many innocent women
would be forced to submit themselves to the trap of the
unscrupulous politicians. Parliamentarians nominated for the
‘reserved seats’ not only would lack any single constituency to
serve but also certainly would lack accountability to any
citizen of the country.
There is
nothing wrong when an exception is made for something (for
example Article 45 which modifies fundamental rights in respect
of disciplinary force or Art. 47 which made provisions for some
exceptions to the Fundamental Rights) provided it is not
arbitrary and guided by rules. In one hand probably our
Constitution is the only Constitution which defines democracy
(Art. 11) on the other had it is full of contradictions and
sometimes it is really difficult to find consistency between the
Articles for example it is not easy to equate Article 46
(provision for indemnification) with the provisions of
Fundamental Rights described in Part III of our Constitution;
and in many places undemocratic theories are formulated only to
favour party politics at the cost of democracy for example
insertion of Chapter IIA in Part IV of our Constitution which
created provision for Non-Party Care-Taker Government and most
importantly Article 70 which strictly restricts a member from
casting vote against his political party or to decide against
the leadership and the same also prohibits floor crossing.
There is
no provision in our Constitution which supports indirect
election, however, Clause 3 of Article 65 in contradiction with
Clause 2 of the same made a temporary provision for 30 ‘reserved
seats’ in the Parliament exclusively for our women folks who
were elected by the three hundred regular elected members. This
temporary provision expired on 14th July 2001.
However, present government has decided in principle to amend
(14th Amendment) our Constitution and increase the
number of reserve seats for women to 45. Neither they will be
directly elected nor will they have any ‘single territorial
constituency’ as envisaged in Article 65(2) of the Constitution.
The
provision for reserved seats was first enacted (10th
Amendment) when autocratic regime was in power and present
government is attempting to do the same under the guise of
absolute majority, backed by Article 70. This absolute majority
has probably made our government blind and people are seeing, at
least to some extent, resemblance between a government with
absolute majority and an autocratic regime.
If the
purpose of creating exclusive ‘reserve seats’ for our women
folks is only to address the women problems in general then we
do not need 30 or 45 rubber stamps because those purposes can
well be addressed through the existing ‘Ministry of Women &
Children Affairs’. Each and every one of the 45 women
Parliamentarians will apparently have the jurisdiction covering
the entire country. As a result they will not serve any purpose
as everyone’s responsibility is no one’s responsibility and as
none will have any territorial jurisdiction no one can be held
responsible for any thing. Besides political doctrine of
‘collective responsibility’ has no place in our politics.
In the
above premises the idea of reserve seats for our women folks is
completely eyewash and also a phoney idea formulated to divert
the attention from the real issue. It may not be wrong to say
that any provision for reserve seats for women parliamentarians
is an insult to our opposite gender and should simply be
rejected immediately by the people from all walks of life as it
certainly violates the fabric of democracy as such our
Constitution.
Politicisation
of Judiciary: An ‘Immoral’ Practice
Barrister M. Moksadul Islam
Probably
we are the most politicised nation on earth. Beside the
mainstream politics almost all our institutions are also
politicised in the name of so called panel (white panel-backed
by AL, blue panel-backed by BNP etc.). Although all these panels
are not officially recognised as the wings of the political
parties it is admitted fact that political parties play an
active role in nominating the candidates for these associations
under some kind of panel. Let us try to see to what extent our
Judiciary is politicised. Bar (the lawyers) and Bench (the
judges) are the two wings of Judiciary. Judging a Judge is
always a risky business. However, to achieve a comprehensive
discussion I, with due respect to our Judges, would seek a
bonafide permission to say a few words about the Bench.
Recently
I received a visiting card of a sitting Judge of the lower Court
and found that they also have associations. Whether these
associations are politicised or not is really a very tough call.
I am not aware of any association of the Supreme Court Judges.
In the Supreme Court, however, which political party was in
power when a Judge was appointed or confirmed is sometimes (with
many exceptions) seen as a tip-off about the said Honourable
Judge’s past political inclination. Many argue that provision
for Chief Advisor of None Party Care Taker Government, in many
ways, is responsible for existing dwindling situation of our
Judiciary. Recently it is also seen that Judges after retirement
are accepting high profile posts about which people are again a
bit nervous.
What
about the Bars i.e. the Lawyer’s Associations? Without any doubt
whatsoever like other institutions Bar Associations of the
country are also politicised under the guise of so called
panels. The post of Presidency in the Supreme Court Bar
Association has become an integral part of the national
politics. If you want to be elected you must get support of one
of the main political parties. In the recently held Supreme
Court Bar Association election a very senior lawyer who
campaigned the entire year for the post of Presidency was forced
to drop out of the race when he failed to secure support of the
party he is associated with.
For last
few years white-panels supported by AL are wining most of the
Bar Association elections. It was not different in the Supreme
Court Bar Association (SCBA) either. In this year’s SCBA
election last year’s President repeated for the same post again
and won. His opponents vigorously campaigned against this
repetition on the ground, allegedly, that last year he himself
campaigned against repetition. The blue-panel supported another
non-political senior advocate. He mainly campaigned against
politicisation with the slogan that if he gets elected no
political party would be able to dictate his agenda. Both the
frontrunner candidates intermingled with others generously and
ran a lively campaign. Supporters of the white-panel banked on
the long and fierce speech delivered by the President recently
in the felicitation of the Honourable Chief Justice of
Bangladesh. Actually this speech has made him a hero in the eyes
of many lawyers which proves the fact that the gap between the
Bar and Bench is really massive and increasing. His opponents,
however, campaigned against the said felicitation speech
alleging that the President may have compromised his
non-political stance. Central leaders of both the main political
parties actively campaigned for their respective candidates.
Lawyer’s
profession is an independent one unlike many other professions
then what is the force working behind the curtain that has
politicised the Bar Associations. Actually all the lawyers are
not politicised but only a fraction of it has political
connection. One of the most important reasons is jobs in the
politicised office of the Public Prosecutor (in the lower Court)
or Attorney General (in the Supreme Court). Those who work in
the office of the Public Prosecutor or Attorney General should
realize that they were given the said job to protect the
interest of the ‘State’ not of any political party. The concept
of State is much bigger than a ‘political party’. Most of these
law officers, who were appointed because of their apparent
loyalty to the Government or with the help of other influential
politicians, have mixed up ‘State’ with the Governm | 
