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August 1, 2004 

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Your Advocate

This week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

Q: I am a businessman and tired of extortion and lawlessness. Sometimes police are found to arrest local mastans and musclemen and put them into custody. But after some days they are found out of jail being enlarged on bail. And sometimes it is heard that they are finally released by court because no evidence could be found against them. I don't understand how the system is running , where the fault lies. Are those mastans innocent and the people are making false allegations against them? Or, allegations are genuine and it is the system that is responsible for failure to bring the criminals to justice? We as ordinary citizens don't understand the mechanism but our confidence in courts, police and the system is badly shattered. I have noticed lawyers taking pride by getting a top- terror out of jail. Does it make any sense in terms of law and order of the society? As I understand if the criminals could be arrested and detained in custody without granting them bail rate of crime would have reduced to a great extent and law and order also could be restored. I would like to hear from you from a lawyer's point of view.
Mustafa Amir Sohail,

Your Advocate: The most crucial aspect of thing here is your view is representative of the view of the people in general. We sometimes tend to ignore the views and questions of the lay mind. But I don't think we can do it without suffering an amount of injury in our public image. Institutions sustain in the confidence of the people. Court as an institution must inspire and maintain confidence of the litigants and general people for whom it exists. So is the case with the police, lawyers and every other individual involved in the justice delivery system. It is therefore, not advisable to leave the disturbed mind unattended.
Your questions taken together has virtually given me a feel of being in dock as a lawyer directly involved in administration of justice. Whatever is the technical answer to these spontaneous questions it cannot be denied that we are suffering in the estimation of the public. Keeping that in view I will try to address your disturbed mind not by way of justification but by way of analysis from my point of view as a lawyer.
I must not say I feel happy with every thing that is happening in the arena of court. But seeing somebody known as mastan or terrorist back in the locality few days after his arrest is not as much attributable to flawed investigation and the weak prosecution as to the court or the defence lawyers. The whole engineering lies in the investigation. As a lawyer I firmly believe if a case is properly investigated and tightly prosecuted release by bail or acquittal is bound to take a back seat even if the most eminent criminal lawyers toil for it. In the present form and background of our police force better and more effective investigation is hardly possible. Police must be modernised and adequately equipped with higher training specially in the field of investigation and with heightened sense of professionalism. The job of investigation is onerous, brainstorming and challenging sometimes involving risks. So for good professionalism of performance society must pay adequately in terms of salary, allowances and awards. Over and above they must be allowed to act free from all outside pressure, influence or threat.
As for the court, its public image suffers in most cases for no fault of itself. Court is vested with power to grant bail in fit circumstances and acquittal in cases where the charge could not be proved beyond reasonable doubt. So far as bail is concerned, if by reference to the records of the case and the documents submitted therewith, it can be shown to the satisfaction that there is no prima facie case against the accused or there is reason to believe that the accused is not guilty of the offence or there is fair chance of acquittal court is rather obligated to grant bail because it is the mandate of law given in consonance with human liberty. There is hardly any scope, in the present position of law, for the court to look beyond records and withhold bail. Court's view is bound to be dispassionate and free from value judgement. The words 'top-terror', 'mastan', 'godfather' etc. are foreign to the penal clauses. In these days of declining trend of values and standards I don't mean to exclude the possibility of extra-judicial influence in every single case. What I mean to say is- it is difficult for courts to pass apparently preposterous or indiscreet orders as they are open to scrutiny by the superior courts. Moreover, judges are not above law. If there are traces of corruption or bias in judicial dispensation actions lie against them.

Now the question of lawyers being rejoiced in getting a mastan etc. out on bail. A lawyer has different entities. In some sphere he is a politician, somewhere he may be an exponent of crime-control, somewhere he may a speaker against spread of terrorism but in court he is a professional. It is his training to vindicate the rights of his client available in law irrespective of how he (client) is called in the society. It is a part of his soldiering and thus he can legitimately be happy for the moment.

Corresponding with the Law Desk, The Daily Star
Please send your mails, queries, and opinions to: Law Desk, 19 Karwan Bazar, Dhaka-1215; telephone 8124944, 8124955, 8124966; fax 8125155, 8126154; email <dslawdesk@yahoo.co.uk>

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