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Friday, November 14, 2008
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Truth Commission not legal

HC declares the ordinance unconstitutional, its activities illegal; govt to appeal against verdict

The High Court (HC) yesterday declared illegal and unconstitutional the Voluntary Disclosure of Information Ordinance-2008 through which the government formed the Truth and Accountability Commission for voluntary disclosure of corruption-accused.

After long hearing for six days on a writ, the HC bench of Justice Mir Hasmat Ali and Justice Shamim Hasnain delivered the verdict declaring illegal Tac and all its functions done so far.

The HC bench observed that through formation of the commission, an alternative system bypassing the judiciary was set up which was against the Constitution.

This system possessed scopes of exonerating the offenders without trial in the courts and interference in the judiciary, the bench added.

It also said promulgating such an ordinance is a policy decision and the caretaker government cannot make any policy decision as per Article 58(D) of the Constitution.

Petitioners' counsel advocate Towfiq Newaz told reporters that following the HC verdict Tac should not go on functioning any more.

An extra-judicial system was set up in the country but there are no rules in the Constitution to substitute the judiciary, he said.

Advocate Asaduzzaman, another lawyer for the petitioners, said the HC judgement did not legitimise the commission's activities done so far and therefore all its functions since its inception are illegal.

He said as per the rules of the Constitution, the people could not be compelled to give statements against themselves, but such a system was introduced.

After announcement of the verdict, Attorney General Salauddin Ahmed told newspersons the government must file an appeal with the Supreme Court against the HC judgement.

He said his office did not make a final decision whether they will file the appeal before getting the certified copy of the verdict.

The top law officer said he could not explain before receiving the certified copy whether Tac can perform further.

He however said the Appellate Division would determine whether the commission can function after filing the appeal.

The government on August 3 formed Tac under the ordinance promulgated by the president on June 8. The tenure of the commission was set to end on January 2 next year.

On August 25, SC lawyer Adilur Rahman Khan Shubhro, Ubinig Executive Director Farida Akhter, Awami League Women Affairs Secretary Dipu Moni and rights group Odhikar's acting director Nasiruddin Elan filed the petition as public interest litigation (PIL) challenging legality of Tac ordinance.

The petitioners said the ordinance which brings the truth commission into being is unconstitutional because no authorities other than the courts have the jurisdiction to try and mete out penalties to criminal offenders.

They said though the ordinance has not declared Tac a court, it provides for the commission to confiscate individuals' property which goes against the basic tenets of the Constitution.

The petitioners argued that the president cannot promulgate such an ordinance other than the ones related to elections or emergencies during the tenure of a caretaker government.

Following the petition, the HC bench of justices Khademul Islam Chowdhury and Mashuque Hossain Ahmed issued a rule to the government to explain why the ordinance should not be declared illegal and unconstitutional.

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