Court Corridor
Emergency, Bail and the Apex Court: Some Issues
M. Jashim Ali Chowdhury*Emergency, Bail and the Apex Court: Some Issues
Published in the Daily Star, Law and Our Rights, November 29, 2008
URL: http://www.thedailystar.net/law/2008/11/05/index.htm
Alexandar Hamilton - one of the founding fathers of USA - termed the Judiciary as the ‘least dangerous’ organ of the State with its mere ‘judgment arm’ while the Executive has got ‘the sword’ and the Legislature ‘the purse’. The Hamiltonian era of 18th and 19th century of executive omnipotence is over. So also is the 20th century of parliamentary hegemony over the executive. Now we live in the 21st century – the century of judicial verdicts controlling both the parliament and executive. Judicial freedom, activism and stature are something with which no negotiation is desired nor allowed.
Emergency is a tool in the hands of the executive to tackle the events threatening the very existence of the State to save it from being swept away. Tackling emergency allows the executive to sidestep some of the fundamental rights of the citizens and sharpens its already sharp ‘sword’. As for the judiciary, it is the time to test its viability as the true guarantor of people’s right. During the normal times, everything is generally routine and rational but it is the time of crisis which puts a nation and its people on test (ABM in Khairul Hoque J in The Fifth Amendment Case, 14 BLT (Spl), p. 91). Emergency crystallizes the reach of the ‘judgment arm’.
Again, the Supreme Court’s power to release an accused on bail in fit cases stems from Articles 102(2)(b)(i) (Writ of Habeas corpus) and 104 (Power to do complete justice) of the Constitution. Since the Constitutional right to liberty is subject of more than one fundamental rights - rights from some of which no derogation is allowed even during the gravest emergency - guaranteed by the Constitution, it puts a heavy onus upon the authority taking away the said liberty to justify such action strictly according to the law and the Constitution (D.C. Bhattacharya J in Auruna Sen v. Bangladesh, 27 DLR 122). The High Court Division has got the power even to proceed suo moto under s. 491 of the CrPC to release an accused on bail. Though the section 491 power may be curtailed by legislation, it is not the case with article 102(2)(b)(i). Being a Constitutional enforcement it cannot be taken away or curtailed by ordinary legislation (West Pakistan v. Shorish Kashmiri, 21 DLR (SC) 1) or even by amending the Constitution (Anwar Hussain v. Bangladesh 1989 BLD (Spl) 1). A Proclamation of Emergency may hit only Article 102(1). Force of Article 102(2) would remain intact always.
The Wrangle Starts
On the night of March 20 2007, the Caretaker Government promulgated an amendment to the Emergency Power Ordinance 2007. In the bail-related section, the amended Ordinance said, "Regardless of whatever is stated in sections 497 and 498 of the Criminal Procedure Code or any other law, an accused under the Emergency Power Rules (EPR) will not be released on bail during the inquiry, investigation and trial of the case against the person." Rules were amended to strip an accused of the right to file bail petition during investigation or trial of a case. Moreover, they cannot seek redress from ‘any higher courts against any order given by any court or tribunal before or during the trial--until the delivery of the final verdict’. The gazette notification of the amendment was issued with retrospective effect from 13 February 2007.
The High Court Division stands upright
The High Court Division Bench of Justice Nozrul Islam Chowdhury and Justice Zubayer Rahman Chowdhury took over the issue on March 29, 2007 when Maijuddin, an oil trader from Khulna, filed a petition seeking bail in a case filed under the Emergency Powers Rules involving supply of adulterated oil. ‘The High Court Division has the jurisdiction to hear bail petitions even in cases filed under the Emergency Powers Rules’ it resolved the debate on April 22, 2007 after hearing the counsels for the state and the petitioner, and six amicus curiae. The amicus curiae opined that, as the highest court of the country, it is the duty of the Supreme Court to protect the constitution and the fundamental rights of the citizens. Whereas the Parliament does not have the power to deprive the Supreme Court of the right of review, no scope of President’s having the power arises. As the government preferred an appeal, the Appellate Division on May 24, 2007 stayed the verdict.
After the April 22, 2007 verdict, the High Court Division on August 19, 2007 granted anticipatory bail to the detained former Law Minister Moudud Ahmed in a case filed under the emergency rules on charge of bringing and selling foreign liquor by evading taxes. It also granted bail to Sabera Aman in a case lodged under the Emergency Powers Rules. On September 20 2007, the Appellate Division allowed the government’s appeal and stayed the bails till the disposal of the appeals.
The High Court Division Bench of Justice M Mozammel Hossain and Justice Syed AB Mahmudul Huq, in two verdicts delivered on December 13, 2007, granted bail to Sigma Huda and Mir Helaluddin, jailed in separate corruption cases under the emergency rules. Ascertaining its power to hear bail petitions of convicts under the emergency rules, the High Court Division held that no rule made by the government could take away the High Court’s inherent power to hear bail petitions. The Anti-Corruption Commission and the government filed appealed the Appellate Division on December 18, 2007. After hearing the Appeal the Appellate Division struck down the High Court Division verdict on March 6, 2008.
The Appellate Division Surprise
The tension reached in its zenith on 23 April 2008 when the seven-member full court of the Appellate Division headed by then Chief Justice M Ruhul Amin passed an order allowing a government appeal against the HCD verdict. The six other judges endorsing the government appeal were M Fazlul Karim, MM Ruhul Amin, M Tafazzal Islam, M Joynul Abedin, M Hassan Ameen and MA Matin. "The appeal is allowed," the CJ pronounced the four-word judgment, which shut the doors on many VIPs in politics, business and bureaucracy caught under the emergency rules and seeking bail. The four-word judgment in short meant that no Court in Bangladesh, including the Supreme Court, could entertain or adjudicate on any matters relating to the EPR.
Seek Justice to Allah
Thereafter on May 26, 2008 while rejecting a bail petition filed by the Jamaat-e-Islami Secretary General, Ali Ahsan Mujahid in the Barapukuria coal mine graft case, the High Court Division Bench of Justice Nozrul Islam Chowdhury and Justice Ataur Rahman Khan advised Mujahid’s counsel to seek justice to the almighty Allah saying that the hands of the judges were tied. ‘We cannot go by the oath we took under the constitution,’ Nozrul Islam also said.
The Supreme Court Bar Association at a general meeting on May 11 2008 decided to file petition with the Appellate Division seeking review of its 23 April verdict.
The Asian Human Rights Commission in its statement of April 24, 2008 (http://www.ahrchk.net/statements/mainfile.php/2008statements/1485/) criticized the Appellate Division Judgment as contrary to all the principles and norms relating to the powers of the highest court in any country. The AHRC called upon the United Nations High Commissioner for Human Rights and all UN agencies, and human rights agencies globally to take up this matter as an issue of priority relating to the defense of human rights in Bangladesh.
The Full text showers some rain
The full text judgment of the Appellate Division published on May 29, 2008 provided some rain over the cloud in the suspicious minds. The Judgment in its seven point observations held that the HCD may consider bail petitions in cases filed under the EPR on three grounds - in case of short sentence not exceeding three years when appeal could not be disposed of within 90 working days for no fault of the appellant, in the case of serious illness that may threat the convict’s life according to a certificate given by a duly formed medical board and if the case is filed with mala fide intentions, on suspicion, or in a corum non judice. Inspite of some ‘self contradictions’ within it, this was much more edible to the legal arena than the initial four-word order.
The floodgate opened
Dear reader, the ending of the story may make you happy to see that the judicial activism has not been abdicated and judicial zeal has been guarded after all. But we are not watching a movie. In the world of reality where none lives happily ever after, we cannot claim the exception.
We see some Benches of the High Court Division in the habit of indiscriminate granting of anticipatory bail in large number of cases and thereby causing substantial damage to the cause of justice (Justice Kazi Ebadul Hoque, Image and Reputation of the Supreme Court, DLR Journal p.1 -4, 57 DLR (2005) at p. 3). Often the ‘judgment arm’ of the Apex Court is, in the words of the Appellate Division, exposed to the opprobrium of purveyor of ‘palmtree justice’ (Naziruddin v. Hameeda Banu, 45 DLR (AD) 38, 44).
This time discretion gave way to political favoritism and arbitrariness. Power without wisdom brings chaos. So we got Orders in 298 cases within 315 minutes (Prothom Alo, Nov 9, 2008). The Medical Boards began issuing certificates (Prothom Alo, Nov 10, 2008). The corrupt tycoons and leaders started securing bail en masse, soon to be followed by the top terrors. ‘Reform’ and ‘Corruption free society’? ‘Gone with the Wind’.
* Lecturer, Department of Law, University of Information Technology and Sciences (UITS), Chittagong
Alexandar Hamilton - one of the founding fathers of USA - termed the Judiciary as the ‘least dangerous’ organ of the State with its mere ‘judgment arm’ while the Executive has got ‘the sword’ and the Legislature ‘the purse’. The Hamiltonian era of 18th and 19th century of executive omnipotence is over. So also is the 20th century of parliamentary hegemony over the executive. Now we live in the 21st century – the century of judicial verdicts controlling both the parliament and executive. Judicial freedom, activism and stature are something with which no negotiation is desired nor allowed.
Emergency is a tool in the hands of the executive to tackle the events threatening the very existence of the State to save it from being swept away. Tackling emergency allows the executive to sidestep some of the fundamental rights of the citizens and sharpens its already sharp ‘sword’. As for the judiciary, it is the time to test its viability as the true guarantor of people’s right. During the normal times, everything is generally routine and rational but it is the time of crisis which puts a nation and its people on test (ABM in Khairul Hoque J in The Fifth Amendment Case, 14 BLT (Spl), p. 91). Emergency crystallizes the reach of the ‘judgment arm’.
Again, the Supreme Court’s power to release an accused on bail in fit cases stems from Articles 102(2)(b)(i) (Writ of Habeas corpus) and 104 (Power to do complete justice) of the Constitution. Since the Constitutional right to liberty is subject of more than one fundamental rights - rights from some of which no derogation is allowed even during the gravest emergency - guaranteed by the Constitution, it puts a heavy onus upon the authority taking away the said liberty to justify such action strictly according to the law and the Constitution (D.C. Bhattacharya J in Auruna Sen v. Bangladesh, 27 DLR 122). The High Court Division has got the power even to proceed suo moto under s. 491 of the CrPC to release an accused on bail. Though the section 491 power may be curtailed by legislation, it is not the case with article 102(2)(b)(i). Being a Constitutional enforcement it cannot be taken away or curtailed by ordinary legislation (West Pakistan v. Shorish Kashmiri, 21 DLR (SC) 1) or even by amending the Constitution (Anwar Hussain v. Bangladesh 1989 BLD (Spl) 1). A Proclamation of Emergency may hit only Article 102(1). Force of Article 102(2) would remain intact always.
The Wrangle Starts
On the night of March 20 2007, the Caretaker Government promulgated an amendment to the Emergency Power Ordinance 2007. In the bail-related section, the amended Ordinance said, "Regardless of whatever is stated in sections 497 and 498 of the Criminal Procedure Code or any other law, an accused under the Emergency Power Rules (EPR) will not be released on bail during the inquiry, investigation and trial of the case against the person." Rules were amended to strip an accused of the right to file bail petition during investigation or trial of a case. Moreover, they cannot seek redress from ‘any higher courts against any order given by any court or tribunal before or during the trial--until the delivery of the final verdict’. The gazette notification of the amendment was issued with retrospective effect from 13 February 2007.
The High Court Division stands upright
The High Court Division Bench of Justice Nozrul Islam Chowdhury and Justice Zubayer Rahman Chowdhury took over the issue on March 29, 2007 when Maijuddin, an oil trader from Khulna, filed a petition seeking bail in a case filed under the Emergency Powers Rules involving supply of adulterated oil. ‘The High Court Division has the jurisdiction to hear bail petitions even in cases filed under the Emergency Powers Rules’ it resolved the debate on April 22, 2007 after hearing the counsels for the state and the petitioner, and six amicus curiae. The amicus curiae opined that, as the highest court of the country, it is the duty of the Supreme Court to protect the constitution and the fundamental rights of the citizens. Whereas the Parliament does not have the power to deprive the Supreme Court of the right of review, no scope of President’s having the power arises. As the government preferred an appeal, the Appellate Division on May 24, 2007 stayed the verdict.
After the April 22, 2007 verdict, the High Court Division on August 19, 2007 granted anticipatory bail to the detained former Law Minister Moudud Ahmed in a case filed under the emergency rules on charge of bringing and selling foreign liquor by evading taxes. It also granted bail to Sabera Aman in a case lodged under the Emergency Powers Rules. On September 20 2007, the Appellate Division allowed the government’s appeal and stayed the bails till the disposal of the appeals.
The High Court Division Bench of Justice M Mozammel Hossain and Justice Syed AB Mahmudul Huq, in two verdicts delivered on December 13, 2007, granted bail to Sigma Huda and Mir Helaluddin, jailed in separate corruption cases under the emergency rules. Ascertaining its power to hear bail petitions of convicts under the emergency rules, the High Court Division held that no rule made by the government could take away the High Court’s inherent power to hear bail petitions. The Anti-Corruption Commission and the government filed appealed the Appellate Division on December 18, 2007. After hearing the Appeal the Appellate Division struck down the High Court Division verdict on March 6, 2008.
The Appellate Division Surprise
The tension reached in its zenith on 23 April 2008 when the seven-member full court of the Appellate Division headed by then Chief Justice M Ruhul Amin passed an order allowing a government appeal against the HCD verdict. The six other judges endorsing the government appeal were M Fazlul Karim, MM Ruhul Amin, M Tafazzal Islam, M Joynul Abedin, M Hassan Ameen and MA Matin. "The appeal is allowed," the CJ pronounced the four-word judgment, which shut the doors on many VIPs in politics, business and bureaucracy caught under the emergency rules and seeking bail. The four-word judgment in short meant that no Court in Bangladesh, including the Supreme Court, could entertain or adjudicate on any matters relating to the EPR.
Seek Justice to Allah
Thereafter on May 26, 2008 while rejecting a bail petition filed by the Jamaat-e-Islami Secretary General, Ali Ahsan Mujahid in the Barapukuria coal mine graft case, the High Court Division Bench of Justice Nozrul Islam Chowdhury and Justice Ataur Rahman Khan advised Mujahid’s counsel to seek justice to the almighty Allah saying that the hands of the judges were tied. ‘We cannot go by the oath we took under the constitution,’ Nozrul Islam also said.
The Supreme Court Bar Association at a general meeting on May 11 2008 decided to file petition with the Appellate Division seeking review of its 23 April verdict.
The Asian Human Rights Commission in its statement of April 24, 2008 (http://www.ahrchk.net/statements/mainfile.php/2008statements/1485/) criticized the Appellate Division Judgment as contrary to all the principles and norms relating to the powers of the highest court in any country. The AHRC called upon the United Nations High Commissioner for Human Rights and all UN agencies, and human rights agencies globally to take up this matter as an issue of priority relating to the defense of human rights in Bangladesh.
The Full text showers some rain
The full text judgment of the Appellate Division published on May 29, 2008 provided some rain over the cloud in the suspicious minds. The Judgment in its seven point observations held that the HCD may consider bail petitions in cases filed under the EPR on three grounds - in case of short sentence not exceeding three years when appeal could not be disposed of within 90 working days for no fault of the appellant, in the case of serious illness that may threat the convict’s life according to a certificate given by a duly formed medical board and if the case is filed with mala fide intentions, on suspicion, or in a corum non judice. Inspite of some ‘self contradictions’ within it, this was much more edible to the legal arena than the initial four-word order.
The floodgate opened
Dear reader, the ending of the story may make you happy to see that the judicial activism has not been abdicated and judicial zeal has been guarded after all. But we are not watching a movie. In the world of reality where none lives happily ever after, we cannot claim the exception.
We see some Benches of the High Court Division in the habit of indiscriminate granting of anticipatory bail in large number of cases and thereby causing substantial damage to the cause of justice (Justice Kazi Ebadul Hoque, Image and Reputation of the Supreme Court, DLR Journal p.1 -4, 57 DLR (2005) at p. 3). Often the ‘judgment arm’ of the Apex Court is, in the words of the Appellate Division, exposed to the opprobrium of purveyor of ‘palmtree justice’ (Naziruddin v. Hameeda Banu, 45 DLR (AD) 38, 44).
This time discretion gave way to political favoritism and arbitrariness. Power without wisdom brings chaos. So we got Orders in 298 cases within 315 minutes (Prothom Alo, Nov 9, 2008). The Medical Boards began issuing certificates (Prothom Alo, Nov 10, 2008). The corrupt tycoons and leaders started securing bail en masse, soon to be followed by the top terrors. ‘Reform’ and ‘Corruption free society’? ‘Gone with the Wind’.
* Lecturer, Department of Law, University of Information Technology and Sciences (UITS), Chittagong
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