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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: 88
October 11 , 2008

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Law opinion

The moment of truth

Barrister M. Zaki Omar

With much hype and anticipation, the Truth and Accountability Commission has begun its journey towards extra-judicial dispensation of justice in the form of immunity from imprisonment in exchange of confession and surrender of ill-gotten wealth. While such an initiation has been viewed as novel, innovative and even pragmatic by certain quarters, sceptics have also voiced their concern that it may be lacking in principles of morality in a hasty effort to exchange convenient yet ad-hoc solutions. A deeper understanding of democratic as well as judicial principles founded on elements of ethics and morality is therefore required before such mechanisms are put into implementation. It will be gravely unwise to retain practices that compromise on any of these principles, or worse, that signal a gradual back-pedalling in the vaunted crusade against corruption.

Historically, a Trust Commission or Truth and Reconciliation Commission is a commission tasked with discovering and revealing past wrong-doing by a government, in the hope of resolving conflict left over from the past. They are under various names occasionally set up by states emerging from periods of internal unrest, civil war, or dictatorship. South Africa's Truth and Reconciliation Commission established by Nelson Mandela in the aftermath of apartheid is a perfect example, and is generally considered a model for Truth Commissions. They provide and remain as historical proof against crimes and human rights abuses. It should, however, be noted that Truth Commissions have been criticised in the past for allowing crimes to go unpunished and creating immunity for serious human rights abuses.

The truth, therefore, is Truth Commissions are established to document and reconcile internal state conflicts, not to provide indemnity to criminals with financial means to get away with absolution and a confession box process. If that is the case, striving for and achieving an independent judiciary as an organ of state governance becomes futile and ineffective. Why do we need a criminal justice system if we could go and religiously seek absolution or confess our sins, coupled with a handsome monetary fine?

The truth is that the concept of our Truth and Accountability Commission seems contrary to Article 27 of our constitution, which enshrines the fundamental right that all citizens are equal before law and are entitled to equal protection before law. If a petty thief when convicted spends up to seven years in prison for the theft he committed, he is not allowed to turn over the stolen goods, confess his sins, and walk away unscathed. Then how is it equal treatment in the eyes of the law when the biggest crooks are allowed to do so just because they have deeper coffers to dig from, and possess sufficient cash that was swindled from public funds by corruption and abuse of power?

The truth is, there are serious concerns about the promulgation of the law creating Truth and Accountability Commission, which purports to bar the guilty of corruption from elections only for a period of five years. A confessed criminal is being allowed to walk away with immunity from imprisonment, that itself is an incredible concession being made on the part of the government. No more negotiation should be entertained and the guilty must be barred from polls for life. It must be remembered that this is unlike any other conviction that a person may have, this is corruption we are talking about where the guilty has committed his/her misdeeds while holding a public office, or by using and abusing powers and position of trust conferred to a public office. By no means should a person who confessed to have participated in corruption ever be allowed to contest in polls that will eventually lead to assumption of a public office of trust and accountability.

The truth is, questions will be raised about the recent declaration by the chairman of Truth and Accountability Commission that the identity of the confessed corrupt will be kept confidential. If the genesis of truth commission is to document and provide historical evidence for future generations, then what purpose does it serve if the names of the culprits are shrouded in secrecy?

This brings us back to the fundamental question: what was the necessity then to establish a truth commission in the first place? Reduction in the backlog of corruption cases have been cited as a reason although numerous tribunals have been formed to try the accused and they have been successfully operating in full swing.

We ought to read between the lines and pay close attention to the other rationale put forward by the chairman of Truth and Accountability Commission, that is to restore economic stability and business efficacy. It seems that a large number of the big-wig corruption suspects are heads of large businesses and conglomerates, and the fear is that their imprisonment may lead those corporate entities to the verge of imminent collapse leading to economic disruption and unemployment.

This, I submit, is not the solution. The uncertainty and dilemma surrounding the state of corporate governance must be tackled by launching appropriate reforms in corporate law, not by compromising with rich crooks. As it stands, our applicable corporate legislation is severely lacking in provisions that will protect the interests of creditors, shareholders and employees alike, despite many experts commissioned from time to time to suggest improvements. We need to include adequate provisions of corporate governance, including effective role of independent directors, company's and creditors' right to appoint qualified receivers and administrators to take over company management if and when required, wider and mandatory disclosure requirements for company directors and their associates, employee entitlements in insolvency and so on. Like in Australia, the function of the Registrar of Joint Stock Companies and Firms (RJSC) may be amalgamated with the Securities and Exchange Commission (SEC) to ensure efficient, co-ordinated, effective and automated storage of company information and also availability, accessibility and disclosure of all relevant information to general public.

It will be unwise to place reliance on the Truth and Accountability Commission as a convenient mechanism to wriggle out of our sacred responsibilities. We should take lead from China and India and be severe on corrupt public officials in order to weed out this vice once and for all. Even if it causes temporary upheaval in the economic terrain, history teaches us that economy has its own fluid ways to adjust to the needs of time, and it will be better for our country's core of integrity in the long run. To this end, the Truth and Accountability Commission should be allowed to die a natural death, or else the whole notion of truth itself may well become the biggest casualty.

The writer is Advocate of the Supreme Court of Bangladesh.


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