Bangladesh stays far away from Rule of law

by Nazrul Islam Khan
December 10, 2009

http://www.weeklyblitz.net/345/bangladesh-stays-far-away-from-rule-of-law

The Supreme Court of Bangladesh on 19th November pronounced the historic verdict of Bangabandhu murder case and confirmed the judgment of the High Court Division rejecting appeal of accused that ultimately ensures their capital punishment. The verdict is really agreeable, as no culprits should be permitted to flee from reach of law. Many leaders belonging to ruling party termed the verdict as an apparent victory of rule of law although some critics as well as political observers consider it at utmost a partial implementation of rule of law and a long walk must overcome to achieve the goal It is not so easy to ensure it and by mere completing trial of a particular case it is unfeasible to prevail it in just and fair sense.

Recently the President pardoned the son of Sajeda Choudhury, veteran leader of Awami League, by means of prerogative power where he was sentenced to imprisonment for 18 years with a colossal amount of fine by a court of law. It needs to be noted that he was a fugitive offender also and it is a recognized principle of law that a fugitive from justice so long as he remains beyond the reach of the court, is not entitled to any relief although the son of Sajeda Choudhury allowed to the prerogative of mercy of the chief executive.

Article 49 of the Constitution states, "The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority". The power of the President is absolute, unfettered and no limitation can be imposed in this regard. Although a number of persons raised question concerning justification of the president's decision to a fugitive offender but a precedent may alleviate all sorts of confusions where the Supreme Court observed: "The power conferred under the Article 49 of the Constitution gives the widest power to the President and no word of limitation can be indicated in the said Article and ...order passed by the President is obviously administrative in nature as the head of the State." [11 BLC (AD) 231]

In fact, it is apparent that the authority of the President is absolute and no restriction is sustainable in law. But it is not unjust to crave that the paramount power should be exercised merely after applying mind to facts as well as circumstances of each case and not in whimsical manner. In the said case it is ostensible that the order of the President was not for shake of justice but with the ulterior motive to sanction the son of a ruling party's leader to escape from reach of law.

In Bangladesh judiciary entertains precedence over executive as constitutional supremacy prevails. The Supreme Court is custodian of the Constitution, solemn law of the land and entrusted with authority to protect as well as defend the same. The apex court entertains both original and appellate jurisdiction and also entrusted with the clout to scrutiny any action taken by executives. If executive authority wanders beyond legitimate limit then it can declare the action ultra vires and is of no effect. Moreover, the authority to review of its own decision or verdict may sufficient to satisfy an aggrieved petitioner. In fact, The Constitution ensures every sort of measure required to prevent miscarriage of justice. In such a position it may reasonably be presumed that power vest in the chief executive to pardon any convicted offender bears less reasonableness at all.

Again, it may not possible for the chief executive to furnish order after applying own sense as well as conscience as Article 48(3) provides "In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant clause (1) of Article 95, The President shall act in accordance with the advice of the Prime Minister". In Bangladesh allegedly most of the politicians are engrossed in divergent illicit actions e.g. raising monetary fund by plundering public property, misusing official capacities to secure immoral gains, ousting oppositions from this territory and so on. Since a few years a tendency has developed to appoint the President from persons belonging to ruling party as well. In this perspective it may reasonably be apprehended that the Prime Minister who is also supreme leader of ruling party, may not fairly counsel the President to pardon a person and the later has no alternative but to follow the counsel blindly.

In fact, Article 49 read with Article 48(3) of the Constitution bears perceptible risk of misuse of power at least at present perspective prevailing all over this territory. Even if any person realizes the necessity of the provision then it may at utmost be treated as a 'necessary evil' that merely may be utilized in cases where questions of public and national interests are involved. A conspicuous instance may be mentioned from Pakistan where a few years back the then President Pervez Mossarrof pardoned Mr. Abdul Qadir Khan just immediately after his confession of guilt due to national interests as well as on gargantuan public demand.

However, although the people experienced operation of the President's prerogative power for the son a ruling party's leader but if the convicted offenders of Bangabandhu's murder case prefer mercy petition then forgone conclusion may be drawn concerning the outcome. The leaders and activists of ruling party as well as oppositions are not standing on equal footings and that's why, when the government decided to withdraw cases against ruling party's leaders then oppositions capriciously remained almost absolutely ignored.

Rule of law demands equality as well as absence of arbitrary powers as suggested by Prof. Albert Dicey that cannot be fairly claimed at present perspectives in Bangladesh. Although the government finished the trial of Bangabandhu slaughter case but it wishes to be noted that demand for trials of a gigantic figure of political murders during 1972-75 also raised from diverse corners which should not be overlooked if rule of law prevails. In fact, the country still today ostensibly stays far away from entirely ensuring rule of law.

Md. Nazrul Islam Khan is an apprentice of Dhaka Judge Court and can be reached at nikhan_law@yahoo.com.

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