<%-- Page Title--%> Human Rights advocacy <%-- End Page Title--%>

February 1, 2004

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.

Barrister M. Moksadul Islam is an advocate of the Supreme Court.