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Protection of rights, not police power is justice

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By MAINUL HOSEIN
20th-Nov-2016       
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Justice is much more than law and police power. Justice demands to apply law in the context of prevailing circumstances as held by Justice Diplock and Lord Denning, the two eminent British jurists. Our Appellate Division of the Supreme Court agreed with them.
The surprise victory of Donald Trump as President of The United States of America, the least experienced man with the most unAmerican temperament  and values, has added to the worries not only to many in his own country but also the world outside. Some states are threatening to secede saying Donald Trump is not their President, he being so unAmerican.  
But one thing is sure that because of the power of the government institutions and patriotism of the public functionaries, the President-elect will have to change himself or will find the system challenging him all the way. Not just election democracy, but people's democracy will be at work.
We are unlucky in that hardly anybody is willing to take the responsibility of making the democratic institutions of the government strong. Unless this responsibility is taken seriously we shall not have good and just governance and our personal rights will remain under threat. The country will lean towards a police state. Violence and disunity afflicting our safety, security and happiness.  
The reliance on justice of police power, instead of protection of law and the Constitution has proved not
 to be the right answer to the problems of peace, order, unity or economic progress in our country. Denial of justice is not merely a personal tragedy, it is a national calamity. Where justice is not ensured the situation is hopeless for protection of law and good governance.
 Any friction between the Law Ministry and the Supreme Court over administrative matters of the judiciary is self-defeating and must be avoided. The need for close cooperation between the Supreme Court and the Law Ministry is essential for dispensing impartial justice under the rule of law and nothing should be done to make it otherwise.
Lately the Supreme Court had to seek explanation how the Law Ministry could serve a show cause notice on a Session Judge without its prior consent.
The people must have faith in the impartial justice system under the rule of law. The police power without the restraining need of impartial justice, will not make police efficient and trustworthy. If this is allowed, the police will be wrecking the justice system by prevailing police power over the power of law and justice.
Already there are disturbingly high numbly of police officials who feel free to break law and commit crimes. Only last Friday a policeman was caught red-handed in the capital city when snatching Tk.44,000/- from an egg trader. Not just snatching, even their complicity as murder is not so uncommon. Killing people by police in cross-fire is not considered a crime. Imagine if a large number became law breakers, what that would mean for social order. If we cannot protect the justice system against abuse of police power, police will cease to be police.    
It is wrong to think that social order and peace can be maintained without protecting an impartial justice system. If justice system is undone, nothing remains of civilized existence.  
We did not have terrorism but now the government finds terrorism everywhere. Whatever is the truth about terrorism, most of our police remain busy looking for terrorists and yet fear of terrorism is rising. Hundreds of cases are pending relating to the offence of terrorism. Initiating a police case alleging terrorism has become too easy for abusing police power easily.
Thousands of police cases are keeping thousands of people in jail without trial. Recently the High Court Division finding that an accused in an alleged murder case spent 17 years in jail without trial set him free. Though he does not know where to go or what to do with his freedom. He does not even know where his family is. It is learnt that two more cases of gross failure of justice have been identified. Things would have been different if getting bail was not so hard paving way for innocent persons to be victimised helplessly.    
It cannot be denied that we had no communalism but now for the over-enthusiasm of anti-communal politics of a particular lobby, communalism has emerged in its uglier and bolder form. In all such cases the men in power were found provoking the human tragedy for personal benefit. The recent attacks on Santals lasting for days were shocking. Lives were lost, properties were grabbed and houses were burnt yet the government appeared helpless because their own men were involved. The police also was not quick to act knowing that government's own men were behind the crimes. The situation was so helpless that a High Court Division had to come forward to the aid of victims. This is like many other instances where our Supreme Court had intervened as no other authority cared for the victims of human rights violation.    
The Anti-Corruption Commission has been claiming to be tough by chasing big fishes but not a single big fish is being investigated. Corruption is endemic at every level of the government because the big ones are protecting the small ones. Anti-Corruption officers are chasing the weak ones to make their life miserable. Even the Anti-Corruption officials can now arrest anybody they want. Thus they have acquired more power to abuse. Public outcry against corrupt Anti-Corruption officials go unheeded. Many more innocent people are suffering imprisonment than those found guilty after trial in court. We cannot provide all the facts to support our claim but we are sure we shall not be far wrong.
In this backdrop of abuse of power and corruption, the main concern of our judicial system should be how to save people from the injustices of abuse of power and greed. More than ever before, the principle of justice that one is innocent before found guilty by the court through trial should be given highest consideration that it deserves.
The principle of innocence is more than a principle, it is recognised by the Universal Human Rights Declaration of the United Nations as a legal right.
By relying too much on police power, we have now lawlessness everywhere. Blaming the police is not the whole answer when the police are politicised and not allowed to remain impartial. The reality is we cannot be sure when police are enforcing politics and when they are enforcing law.
We have also a problem of judicial culture. An arrested person is treated more often surely as guilty if the allegation is about a serious crime. In most cases an accused suddenly finds himself as a non-entity. He is totally at the mercy of police forwarding report. All his fundamental rights are of no help. The presumption of innocence is not recognised as a legal right.  
All his fundamental rights to be free is thrown overboard by a paper allegation endorsed  by the police. For not granting bail, he has no freedom to claim his innocence also as a free citizen. The major source of corruption in the judicial system is filing of false cases and business of bail. The most damaging is people's faith in the judiciary as dispenser of impartial justice.
An individual's protection of law guaranteed under the Constitution has to be meaningful in the context of police harassment or not for anything.
Our system is habituated to be in favour of the police to have all the freedom to deal with anyone they suspect to be an accused. The common saying is: They must be given a chance to investigate. He will be available for police interrogation is not enough. Despite Supreme Court's caution against police remand, police are too often obliged so that an accused can be taken into their custody for interrogation. This is an unholy situation for the sanctity of justice.
In India, the process of justice has not been weakened by granting anticipatory bail, or releasing a person on condition that he will be available for interrogation. We had also law for granting anticipatory bail, but now it is considered dead.
Scope of abuse of police power and corruption among them are contexts for judicial acknowledgement for doing justice. But from the prosecution side all efforts and fury are employed painting a man as a dangerous criminal not to be enlarged on bail before any evidence has been produced against him.
To deny bail is a big success for police but total loss of all the freedoms for the accused.
Our educated people have a unique gift of amnesia to forget what our people had fought for, so as to know what we must protect and preserve. Bangladesh will never be a country of yesterday living in fear of authority without protection of law.

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