This edition of ‘From the Court Corridor’ curates the notable pronouncements of the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in October 2021.
Rejecting a writ petition where the court’s directives on the enactment of a law for the formation of Election Commission (EC) were sought
After the statement made by Anisul Haq on 7 October regarding the constitution of EC through a search committee, Earul Islam, a lawyer and secretary-general of the Bangladesh Congress, filed a writ petition on 13 October seeking the directions of the HCD to form an EC by enacting a law in accordance with Article 118(1) of the Constitution and the postponement of the formation of the EC through a search committee. Rejecting the petition, HCD said that it does not have the constitutional jurisdiction to ask the parliament to formulate a law and therefore the writ is not acceptable.
The petitioner argued that the above Article requires the parliament to formulate a specific law for the formulation of the commission, however, the government appoints the staff of the EC in an absolutely arbitrary manner violating the constitutional mandate. The court showed an example of judicial self-restraint and kept the power of the organs separated.
However, some scrutinization might be needed in this regard to serve the purpose. Firstly, whether the phrase ‘subject to the provisions of any law made on that behalf’ dictates towards the mandatory enactment of a specific law on the formation of EC. Secondly, whether issuing gazette for a search committee is close enough to a law as referred to Article 118. Finally, whether the court could have directed the parliament where there is a practice of arbitrariness.
In practice, no water-tight separation of power is possible or desirable.[1] In the scheme of our constitution the division of power is not absolute. In Shah Abdul Hannan Case,[2] it was stated that the principle of judicial review to scrutinize the exercise of power by the government would apply to prevent arbitrariness or favoritism. Since no minimum requirements are set for the eligibility of a chief election commissioner and four election commissioners, the court could provide guidelines or directives on the matter. On one perspective, the court has set the example of separation and in another, it could go further to stop the arbitrariness since BNWLA[3] case issued certain directives in the form of guidelines.
Ordering the concerned magistrates to conduct a judicial probe into communal violence
In October Barrister Jyotirmoy Barua and Advocate Anup Kumar Saha filed a writ petition seeking directives to remove any offensive posts and videos uploaded on social media that incited communal violence in numerous districts. Moreover, they sought a judicial probe into the incidents of communal attracts on members of Hindu community, their houses and temples. The petition also sought the rehabilitation and compensation of the Hindu community and the authorities to be brought to account who failed to provide protection.
HCD has ordered the concerned six magistrates to conduct judicial inquiries into the communal attacks on the Hindu community from 13 October to 18 October and submit their report within 60 days. The court also issued a rule asking the Deputy Commissioners (DP) and Superintendents of Police (SP) why their incapacity to provide security to minority groups should not be declared illegal. However, it was argued by the Attorney General AM Amin Uddin that the government had arrested many culprits.
Such a prompt action of the SC protecting the rights of the citizens regardless of their religion can promote the notion of a secular state. The minority groups will feel safe if the failure of the government to provide security is questioned. Unfortunately, the court’s order cannot protect beforehand rather it is the local administrator who can make a difference. The judiciary and the executive must work together to ensure complete justice in this regard.
Directing the Anti-Corruption Commission (ACC) to take action against the serious offenders laundering money abroad and not harassing the businessmen
A businessman and former Awami League leader of Dinajpur named Khalilullah Azad filed a petition with the HCD seeking anticipatory bail in a money laundering case worth 35 crores filed with Dianjpur Police Station. According to the petitioner’s lawyer Jyotirmoy Barua, the ACC was supposed to file the case instead of the Criminal Investigation Department of police (CID).
The HCD granted bail of eight weeks’ anticipatory bail observing that the ACC should take expedient and necessary action against the money launderers who launder money to foreign countries, rather than harassing business person. The HCD bench directed the ACC to bring those to the book who have committed serious offences by laundering money abroad, including ‘Begumpara’ in Canada, Malaysia and USA.
Currently, the actions of the ACC are often questioned on the grounds of illegality and corruption. There are instances where ACC illegally drops the names of the actual perpetrators from their inquiry on corruption allegations. Given the circumstances, the HCD’s direction to ACC on taking action against the real offenders laundering money abroad and not harassing the businessmen will bind the ACC to maintain legality and transparency in their actions. Moreover, the compliance of the ACC to such direction will protect the people associated with business from undue interruptions in their business activities.
Seeking report from the government on the facilities provided to death row convicts
In September Advocate Shishir Manir filed a writ petition challenging the legality of keeping death row convicts in condemned cells before their cases are finally disposed of by the Appellate Division (AD). Finding merit in the petition, HCD ordered the government to submit a report by November 14 on the facilities provided to 1,987 death row convicts in different jails across the country. This writ petition was filed on behalf of three death row convicts who have been kept in condemn cells pending the final disposal by AD.
The lawmakers are more interested in relying on the death penalty and the number of death row inmates have increased notably. Hence, the possibility of the violation of the fundamental rights is high while dealing with the death row convicts. The delay in proceedings is responsible for the prolonged detention of inmates. Since our prison system has a precedence of having a death row convict being acquitted after 16 years in jail,[4] the facilities the death row inmates receive need to be scrutinized. The detailed information might drive the court to give some directives upon the Department of Prison upon the matter.
Granting bail to five innocent farmers and ordering the government to catch those who had looted bank money
On 3 July five poor farmers from Kurigram were arrested for embezzling a government fund amounting to Tk 2.46 crore through five bank accounts belonging to them. A member of an organised criminal gang allured the five farmers to open bank accounts, saying that they would be given pandemic financial assistance. The perpetrators aimed to misappropriate the amount of 2.46 crore through the five accounts opened in the name of five accused farmers issuing fake advice note. Consequently, an FIR was lodged against the farmers, and they were arrested on 1 July.
On 3 October the five accused farmers with the help of Advocate Shishir Manir, filed a bail petition in the HCD seeking bail. The HCD bench of Justice Mustafa Zaman Islam and Justice Mohammad Ali granted one year bail observing that these five poor farmers have been trapped in this embezzlement case. The Court also ordered the government to catch the real looters.
People who belong to the lower-income class, occasionally become victims of false accusations of offences that they do not commit. Due to their financial restraints and lack of cognition, they often cannot defend themselves against those fraudulent charges and become subject to unfair prosecution. The stand of the HCD in the instant case safeguarding the innocent farmers against the false allegation and endeavoring to ensure justice to them and the probono service provided by the petitioner’s advocate are praiseworthy. It provides a protective measure for the lower-income class of people who are common victims of such unlawful practice.
[1] Bangladesh v Md Aftabuddin (2010) BLD (AD) 1.
[2] Shah Abdul Hannan v Bangladesh (2011) 16 BLC 386.
[3] (2009) 14 BLC 694.
[4] Mizanur Rahman, ‘Death Row Convict Acquitted After 16 Years In Jail’ The Dhaka Tribune (2020) <https://www.dhakatribune.com/bangladesh/court/2020/09/23/death-row-convict-acquitted-after-16-years-in-jail> accessed 25 November 2021.
