When the will is far from the way
Rising concern over the non-implementation of court judgements

Dr Faustina Pereira
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There are many ways to assess the condition of a State and the strength of its democracy. One such way is to see how well its various organs function. It is to be seen, in other words, whether the legislature, the judiciary and the executive move in tandem on issues of fundamentals, or are frequently out of sync with one another. There can, of course, never be straightforward indicators to assess this synchronisation. But certain signifiers do certainly stand out. It is these numerous signifiers for the individual citizen at the day-to-day level that cumulatively constitutes a gauge for the health of the nation. Expectations and aspirations of the individual citizen at the most basic of levels food, shelter, physical security, get tested out against this cumulative yardstick which the State is expected to function by. Simply put, it is the social contract broken down into its smallest parts that tells us whether all is well or not.

Here I propose to make an enquiry into one particular signifier: the extent to which the Executive (Government) in Bangladesh implements or executes judgments and directives delivered by the Courts (Judiciary). A cursory look into the daily papers answers this enquiry quite roundly, in fact. The non-execution of judgments, until recently inconceivable by the general populace, is now snowballing into a phenomenon by itself. This is a matter of grave, far-reaching concern. The common person on the street, who thus far placed a share of faith in the law as a last resort, now dismally resigns to the reality of the ground: things are falling apart.

After all, a judiciary is the product of the society in which it functions, thereby making it the repository of the common good, the sentinel of justice and social conscience. However, in all its magnificence, the judiciary is still dependent upon the other organs and institutions to carry out its pronouncements. Here lies that fundamental requisite the cohesion between organs, and the political will to ensure that cohesion. The adage, "justice must not only be done, but seen to be done" comes into play here. The operative word in all of this is "enforcement." In most cases, whether we realise it or not, it is the police who are left with the onerous task of carrying out this 'enforcement' or execution of orders. But it emerges that they do not, and in many cases, cannot, carry out their duties. If law enforcement is the middle instrument between law and society, then a crucial link is missing in our society. Why is this so? Once again, a glimpse into the daily newspapers shows even the most naive amongst us where the bottlenecks are, and what it is that stultifies our police from doing what they have been entrusted to do. An unhealthy strain of political power and muscle has now entered into the equation, throwing our whole socio-legal structure into disarray.

Let us now deal with specifics. A look into the present state of the landmark judgment on Sections 54 and 167 of the Criminal Procedure Code, curtailing abusive exercise of powers by police, provides a good case study of the malaise in today's society. Before elaborating on this further, let me highlight a few more such cases. In each of these judgements, the course to justice and redress is clearly charted, but the engine which is to steer that course, beholden to various outside forces, will either not shift or will move only reluctantly.

The first writ before the High Court Division challenging the eviction of slum dwellers, was filed in 1989, on behalf of residents of Taltola Sweeper Colony. From 1989 until January 2004, writs continue to be filed, seeking protection of the fundamental right to shelter and livelihood of the slum dwellers. Wholesale eviction of slum dwellers by the Government continues till this very day, despite the repeated and clear directives and recommendations of the High Court. What could be more clear than the guideline set for the Government by the High Court Division in its judgment and order dated 23 August 1999 (Writ Petition 3034 of 1999):

We have ventured to give a guideline to the Government for rehabilitation of the slum dwellers in phases and the Government should undertake a master plan or pilot projects for rehabilitation for the slum dwellers and undertake eviction for the slum dwellers according to the capacity of their available abode and with option to the dwellers either to go to their village home or to stay back leading an urban life …
that first a survey be carried out on basti (slum) dwellers before any eviction. Secondly, a plan for rehabilitation be made for the basti dwellers proposed to be evicted.

Thirdly, the basti dwellers be evicted in phases and only after giving them reasonable time and notice. Fourthly, the basti dwellers be offered the option of moving back to their rural villages and in that case rehabilitated by providing them with funds/loans for construction of houses and other support for sustenance with proper and regular monitoring or if they want to stay back in the city they should be rehabilitated, bearing in mind the vicinity of their work place."

Even today, as petitions challenging the eviction of slum dwellers from Amtoli, Jheelpar, Mahakhali and Kallyanpur bastis remain pending final hearing in the High Court, the Government is yet to make known a comprehensive master plan for rehabilitation of the slum dwellers in phases. Rehabilitation projects under various names such as Gharey Phera, Asrayon, Adarsha Gram etc. have been piteously short-lived and inadequate, not taking into account the large numbers of dwellers actually displaced or homeless.

Similarly, despite a landmark judgement on the protection of their right to life, personal liberty and rehabilitation, sex workers continue to remain in a tenuous legal position in Bangladesh, and in constant fear of illegal evictions and police raids. In its judgment in the case filed by several human rights organisations on behalf of the evicted sex workers of Nimtoli and Tanbazar brothel,(Bangladesh Society for the Enforcement of Human Rights and Others vs. Government of Bangladesh) the High Court emphatically reiterated the fundamental right to equal protection of the law and equal protection of life and personal liberty as enshrined in Articles 31 and 32 of the Constitution. The Court also held that the sex workers are citizens of Bangladesh and enrolled as voters and as such their wholesale eviction had deprived them of their livelihood, amounting to deprivation of right to life, making the act (of eviction) unconstitutional and illegal. The observations of their Lordships in this case are quite compelling:

We painfully observe that though the police is the protector of the oppressed, in the instant case they have failed to fulfil their obligation in protecting the rights of the dwellers of Tanbazar and Nimtoli. Even if a particle of the allegations against the police is found to be true or has any basis in the instant case, it is a shame for the nation.

The nation continues on in shame, as news of further evictions or threat of evictions, come through in daily papers, most recently in Magura and Patuakhali. According to newspaper reports, Magura administration (District Commissioner) with the assistance of the joint forces, raided, bulldozed and demolished the one hundred year old Magura brothel and evicted over 300 sex workers. All of this in contemptuous violation of a Court order which barred such eviction until disposal of the case or until further notice. The police and local administration had gone so far as to auction off the possessions of the sex workers at the very site of destruction. (Sangbad, 6 January, 2003).

In 2001, the High Court Division gave specific directions and made far reaching observations in the first ever case brought within the epistolary jurisdiction. This case (Dr. Faustina Pereira vs. The State) was based on a letter written to the Chief Justice which brought to his attention the plight of foreign prisoners in the Dhaka Central Jail who languish therein despite having served out their sentences long ago. The Court, having expressed its discontent with the concerned government departments for not taking adequate and timely measures to release and repatriate the foreign prisoners after the expiry of the terms of their sentences stated,

It is natural that some time would be needed to complete formalities of their release because Embassies of the different countries require to be contacted, but even if after a reasonable time such prisoners cannot be released with the help and assistance of the respective Embassy, Government should release such prisoners and under no circumstances the prisoners should be kept in jail …. Further we also think it is the duty of the Government to ensure their safety and security after their release.

In addition to placing constructive duty upon the Government, the Court also made certain recommendations, such as the setting up of separate cells in the Ministry of Foreign Affairs and the office of the Inspector General of Prisons (IGP) to facilitate the timely release and repatriation of the prisoners. The IGP was also directed to furnish full particulars of the remainder prisoners across the country and to take steps for their release and rehabilitation. Given such clear directions, it is distressing that two years down the road, further writs have to be filed to seek Government compliance of previous orders (Writ Petition No. 6353 of 2003). News of time-barred prisoners, foreign as well as local, continue to be published. It is not known whether the cells have been set up within the relevant ministries. Neither is it known how many such prisoners have been released till date. Present statistics that over 6 thousand under-trial men, women and children are languishing in jail, that there is utilisation of only Taka 44 lakh out of a total allocation of Taka 2 crore, tells the truth of the dismal failure of the Government's legal aid programme (Sangbad, 24 January, 2004).

Despite its repeated acknowledgement of the discriminatory situation facing Bangladeshi women under current citizenship laws, the Government has failed to amend the Citizenship Act of 1951. Thus, Bangladeshi men are able to transmit their citizenship automatically to their children and foreign born spouses, but Bangladeshi women cannot transmit their citizenship to their children or foreign born spouses, a situation that is highly prejudicial to the rights of women and in blatant violation of constitutional provisions of equality on the basis of sex. The Government in its periodic reports to the United Nations CEDAW Committee acknowledges its duty to amend the laws, but in reality this remains a distant dream. This acknowledgement is in line with the recommendations of the High Court Division (Malkani vs Government of Bangladesh, Writ Petition no 3192/1992) which stated that, Parliament should repeal the laws relating to citizenship that are not in accord with the Constitution and that the Government should take steps to amend Section 5 of the Bangladesh Citizenship Act of 1951 as well as the Bangladesh Citizenship (Temporary Provisions) Order of 1972 in order to remedy the inequities with regards to citizenship rights.

Perhaps the most perilous and contemptuous disregard by the Government of the Court's orders is in the case of non-implementation of the 12-point directive through which to separate the judiciary from the executive. As of today, the Government has filed time-extension applications an astounding 16 times for implementing the judgement delivered in the well known Masdar Hossain case. On 19th November 2002, the application of the government for time extension came up for hearing before the Court for the fourteenth time. At this time the Attorney General raised the issue of a crisis, that is, the conflict with the Administrative Service Association over the draft of the 'Judicial Service (Constitution, Composition, Suspension and Dismissal) Rules.' The Appellate Division of the Supreme Court took a strong stand on this and stated, "This crisis has been there for a long time. Why has it not been resolved yet? If the government fails to resolve the magistrate issue, the Court will give directives how to resolve it." (Holiday, December 13, 2002). And yet, over a year since that strong stand, the Government continues to drag its feet on one of the clearest signifiers of a vibrant democracy, an independent judiciary.

If there is one judgment in recent times which stands out as most influencing the lives of the general population then that certainly is the judgment which sets limits on police powers in their exercise of Sections 54 and 167 of the Criminal Procedure Code. This case, filed by way of a writ petition by Bangladesh Legal Aid and Services Trust (BLAST), Ain o Salish Kendra (ASK), Sammilito Samajik Andolon and Others in 1998, sought directions upon the exercise and limits of Sections 54 and 167 of the Cr.PC which have been abused by the police resulting in the violation of fundamental rights of citizens. The petition provided statistics and accounts of the deaths in police custody and violations committed through the abusive exercise of these sections.

The judgment delivered at the end of five years of deliberations, in April 2003, constitutes one of the most detailed and comprehensive of guidelines for implementation by the Government. It would not be inaccurate to say that all the necessary homework for resolving the important questions of arrest without warrant, and remand and police custody, have already been carried out within the judgment, and now all that remains is for the Government to implement it accordingly. A look into the seven sets of recommendations and 15 directives made by the Court, including suggestions for amendment of the relevant sections (Section 54, 167, 176 and 202 of the CrPC; Sections 302, 330, 348 of the Penal Code, Section 106 or 114 of the Evidence Act and Section 44 of the Police Act) provide one of the most detailed and easy-to-follow guidelines. Dr. Shahdeen Malik in his two-instalment write up on this judgment (Daily Star May 2003) rightly observes that this judgement was a painstaking exercise undertaken by the Hon'ble Justices.

Two of the petitioner organisations in this case, BLAST and ASK, have also taken measures to meticulously disseminate this judgment to every District Commissioner, Superintendent of Police and District Bar Association in the country. Leaflets containing the salient points of the judgment have been distributed, and bulletins published and seminars held to make all citizens aware of this judgment. And yet, much of this milestone is threatening to come undone in the face of the Government's application before the Appellate Division to stay the implementation of the Court's directives (Daily Star, 3 August, 2003).

On 02 August 2003 the Appellate Division rejected the Government's application for stay of the judgment and granted instead six months' time to implement it. Sadly, we are a week away from that deadline, and are yet to see concrete steps taken by the Government to implement this land-mark judgment. What has been seen in terms of 'improvements' in the police force, however, is the change in colour of police uniforms and the expressed hope that this would bring about a change in behaviour and attitude! There have also been a number of declarations by officers in government that gradually better training would be provided to police officers. None dwelt on the substance of those trainings or how they would result in more sensitised police officers. While on the face of it the general public may not be inclined to make a case over the change in uniforms apart from wondering why it was necessary in the first place, the more pertinent question they are asking is this: on the question of reforming the police force as an institution and as crucial wing of law enforcement, is the Government missing the point altogether? If it does see the point, what are the forces that hinder it? At the very outset one is amazed that there could be such a wide gap in priorities that an outward face-lift took precedence over substantive, core reforms as set out by way of immediate directives of the High Court Division. What justification for such lopsided prioritisation?

For example, the judgment clearly directs for immediate implementation, amongst others:

The disclosure of identity card, that is, even after disclosing his (or her) identity, if demanded, the police officer shall show his identity card to the person arrested; the police officer shall record the reasons for arrest and other particulars in a separate register till a special diary is prescribed; eventually a specially designed room (glass wall and grill on one side, to be within full view but not within hearing) is to be constructed for when an investigating officer is interrogating the accused in the presence of his or her lawyer or close relatives. Surely the money spent on uniforms could be better spent on printing identity cards and separate registers and construction of glass walled rooms. Tax payers and general citizenry want to see their money spent on such real, substantive mechanisms for protecting their fundamental rights, instead of surface level pacification.

Just a quick glance into the internet will show how in other countries citizens are made aware of their rights in relation to law enforcement personnel. There are, for example, special programmes set out for young citizens, informing them about their increased level of engagement with the law, and how to behave with a police officer and what to expect in return. So widespread are these awareness efforts that in Northern America almost every citizen knows the Miranda Rules from memory. Allocation of resources and finances into these areas is where citizens can benefit most from positive judgements.

Thus, where does all this leave the common people who, firmly believing in Article 7 of the Constitution hold that all powers of the Republic belong to us the people, and that those to whom we have relegated the task of exercising our powers must only do so under and by the authority of the Constitution. But the reality we face on the ground couldn't have been farther from this belief. The growing phenomenon of disregard by the Executive of the directives of the Judiciary, heightens the level of alarm in the minds of the citizenry. The root problem for this defiance is quite clear. This is the result of the blurring of lines between the constructive and destructive forces in society. The wilful murders of police officers, upon whom citizens depend for their security are now themselves victims, speak of a system gone terribly wrong. Police killing is but a woeful symptom of this deep-rooted disintegration. Every society, even the most advanced, contains within it subversive elements that gnaw into the power structure. The secret of success in these countries lies in in-built systems of containment of these negative forces. In these systems the constructive elements ensure that the underground elements do not find their way overground. In the case of Bangladesh, the overground and underground have blended so closely that it is almost impossible to extricate the two, so as to allow institutions to function independently or smoothly. As always, the hapless citizen is caught in between, awaiting the dawn of constructive political will.

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Dr. Faustina Pereira, Advocate, Bangladesh Supreme Court.