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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 32
August 11, 2007

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Law letter

Let law really take its own course

“Law will take its own course”so goes the oft quoted perceptional saying. The message conveyed here is indeed very clear and unambiguous. Law is, in its own turn, is the end product of human imagination. This is an admixture of individual talent, scholastic faculties, cultural heritage of the people at large, socio-economic conditions, sectarian and diverse religious affiliations. It also attaches highest importance to upholding fundamental rights of every citizen irrespective of caste, creed and faith. Law protects the rights to life and property. It fits in both preventive and punitive measures against all sorts of criminal acts and abusive behavioral pattern. There are also some curative measures duly incorporated in the national legal frame-work. Application of law depends much on the rationale of interpretation of the provisions. Consequently, there may be notable variations between two and more interpretations proffered at the same time by different legal practitioners.

These interpretations emerging from human brains again are ordinarily expected to be in conformity with the objectivity of the legal provisions. Even though not at all desirable more often than not there are intriguing twists and subjectivity to be awfully partisan in the ultimate results. The fruits of such misinterpretation again go to the undeserving defendants. Conversely, in many cases, despite being the weaker party the prosecution derives benefit of manipulated judgement. Without any intention to cast aspersion on any particular court or generalising the entire precinct of the lower court, it can be said with enough impunity that such distortion is not at all uncommon. Till now, the magistracy being an integral part of the executive side of the government and thus involved concurrently in judicial or quasi-judicial functions, is, at times, imputed for undue dispensation of favour to the wrong side.

It is presumed that this has been one of the many reasons for a complete segregation of the judiciary from the executive branch of the administration. For over two years now such a proposition is lying pending with the government to finalise. The four-party alliance government was to make it a reality as desired by the Supreme Court. Till termination of its tenure the alliance government kept on asking for extension of time every time the stipulated period at the behest of the Supreme Court expired.

The present caretaker government took encouraging initiative to expedite completion of the process of separating the judiciary from the executive branch of the government. Things went on smoothly until recently. Yet there was literal interception in the whole process with the latest prayer for another four months by the government to the Supreme Court. Practically such a dispensation sought from the highest court is construed by many as a trick or ploy to bide time so as to enable the executive branch of the government exercise its prerogatives in respect of a few cases.

To substantiate such a charge we can allude to the extra enthusiastic role played by the home ministry in respect of the extortion case against Awami League chief and former Prime Minister Sheikh Hasina. Her defence lawyer and senior most member of the High Court Bar Barrister Rafiqul Haque tells us the wrong invoking of law to take Hasina's case within the ambit of emergency rule. The learned and profusely experienced lawyer expresses his consternation at the ignorance of an Addl. Secretary of the Home Ministry by way of endorsing and putting his seal on the prayer of the law enforcing agency to conduct the case under emergency law. He referred to some flaws in the process which, in his words, could be a mischievous part of the government towards political victimisation of Sheikh Hasina.

The hon'ble High Court granted bail to Sheikh Hasina, ordered suspension of the proceedings of the lower court and issued rule on government to reply within two weeks as to why the case against the Awami League chief would not be quashed. On August 01, 2007 the Attorney General preferred an appeal against High Court order seeking stay order on the bail granted. The Appellate Division of the Supreme Court stayed High Court decision on August 02, 2007 fixing August 14, 2007 for hearing of the government appeal. Hearing on the chargesheet will be on August 16, 2007 in the lower court.

On the matter of Anti Corruption notice asking Sheikh Hasina to submit statement about her assets the Bangladesh Bank regretted its inability to provide information on her accounts in different commercial banks. She had sought such assistance from Bangladesh Bank since all her papers/documents were seized by the law enforcing agency when she was taken into custody for detention. Such a situation cannot be legally tenable and her inevitable failure to meet ACC requirements as per their notice cannot also be her fault. We have here an outrageously different status of the legal sanctions and their wishful application without granting any scope for defence. It is as good as asking someone to walk with his/her two legs fastened together.

The legal machinery appears to have been utterly obsessed with some sort of eerie thinking about the bonafide of the possible behind-the-scene machination. Strangely though, it coincides with the most recent public statement of an Adviser seeking to pre-empt an awfully bizarre situation in case the government failed in its present cleansing pursuit. It is to me an inexplicable and yet very palpable premonition that may have been tormenting the gentleman in power.

Meantime, we learn that the non-cooperation of Bangladesh Bank and of ACC to help Sheikh Hasina compile her asset statement with reasonable credibility will now be contested legally. She will not like to be a defaulter any way. As required by ACC she was reported to have been preparing the statement within given time. The whole nation and the world at large have been curiously watching how the “law takes its own course”. The seizure of papers concurrently in respect of Dr. Wazed Mia now in hospital, Bangabandhu Smriti Parishad along with others is also a specimen of the course of law. Critically ill Dr. Wazed Mia shall have been half-dead now learning that he would not be able to pay for his hospital bills.

The hundreds of direct beneficiaries of the financial support from Bangabandhu Parishad are also feared to have been already plunged into a terrific situation. Yet some are all out to uphold the sanctified ends of law and “surely they are honourable” men. In fact, law must take its own course and certainly free from instinctive impulses of the advocates giving out beams at other's woes.

The present scenario obtaining in the country has been an absolutely traumatic depiction of

a sort of infernal greed about a handful of individuals hitherto basking in the blissful sunshine generated from the power base. In such games the lawmakers, in some cases, turned out to be law breakers themselves. When a Finance Minister speaks a bit harshly to the collectors of taxes and revenues of different levels it is not difficult to understand his natural anxieties. And when he himself is identified by the press/media as a violator of the laws/rules prescribed by the government at his instance, the whole nation is rocked. The tremor becomes all the more violent when his boss in the government is also imputed with similar defaults. This could be one of the many examples of flouting the process of law by the big ones paving free passage for others in the lower rungs to replicate.

The recent notification of the Board of Revenue of the government on tax deduction at 10 per cent over interest received by the subscribers of savings certificates is yet to be clear. The circular gives the limit at Tk. 25,000.00 beyond which the amount received will be taxable. A big confusion persists as to the effective date from which the new provision will be implemented. From legal and also logical point of view such orders cannot be effective retrospectively. It may be argued that those who bought savings certificates before the latest order on income tax deduction, did so on the basis of the benefits as sanctioned/approved by the government at the time of purchase. Only those who have bought savings certificates on and from the date of the new circular shall fall within its provisions. There are, if I remember aright, such rulings from the highest seat of judiciary which forbid curtailing any financial benefit once given, retrospectively. In any case, an objective clarification on the subject and removal of the confusion set in, by the authority concerned will benefit many who earn their livelihood from savings certificates. They need sympathy of the government in their struggle for survival. Let there be no inappropriate or arbitrary application of law.


Kazi Alauddin Ahmed
Management Consultant, Dhaka.


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