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Higher challenge is to the courage and integrity of the judiciary

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By MAINUL HOSEIN
12th-Feb-2017       
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The Chief Justice of Bangladesh Mr SK Sinha repeated his anxiety once again last Thursday about the dilemma judges face in doing justice because the laws have many loopholes. He was addressing the lawyers at Moulavi Bazar, Sylhet, joining their annual dinner.

His Lordship has been urging for a long time proper scrutiny of the laws passed without due care and making necessary amendments. He has been indicating that the lawmakers are not being diligent while examining the laws before passing such laws.

It is heard commonly that because of flaws in law, particularly regarding criminal justice, many guilty ones go unpunished. So the anxiety expressed by the Chief Justice is shared by all.

But the other anxiety which is no less disturbing for the criminal justice system is punishing the innocent ones by refusing bail. Saving the innocent ones should be our greater concern. That is why the presumption of innocence.

In our understanding, the main reason for defective laws is that neither the government nor the law makers give due importance to the need of justice. There should also be no hesitation in admitting that our parliament is filled mostly with businessmen.

Notwithstanding the deficiency of legal knowledge among the members of the Parliament the laws are be drafted in consultation with experts like any other country.

Our law makers are interested in   arbitrary powers in their hands. Otherwise, they would have cared to get the draft laws carefully vetted by experts.

We are anxious to make the point that in Bangladesh the laws are used for abuse of power whoever is authorised to exercise it. Every such authority claims, he has absolute power not being accountable.

Our problem is abuse of power to do wrongs. There is little anxiousness for proper application of law to do justice to the people. The idea is: Justice should be in favour of those in power because they think they know what is best for the people and good for the country.

The  difficulty for the court to do justice has become all the more difficult owing to  abuse of power so that as soon police files an FIR against somebody, the courts  are expected not to grant him bail, he should be available for police custody  and willful interrogation by them. He is at police mercy. He is guilty, must suffer in jail because police says so.

Thus, not only that our laws have holes obstructing justice, our justice system has also many holes to punish people before they are found guilty by a court of law. Justice system must not allow itself to be dominated by the police. It is not unknown to the courts that police are not free to be fully trusted.

This month the High Court Division released twenty persons    on bail when the matter was brought to their Lordships, attention that they were in prison without trial for a decade or so. There are many such helpless people languishing in jails all over the country.

It should be a matter of judicial conscience that so many years of their lives were wasted in jail although they were not found guilty of any offence. More than that, it is quite possible that their families got broken up and are living in the streets. The court should ask the government to compensate for the negligence.

Our criminal justice system is badly disoriented by the courts' attitude with regard to bail. To be more blunt and human, by refusing bail before trial we are punishing our people with police justice. Justice under the rule of law is judicial justice for imprisonment as punishment to be handed down only by a court after the trial.

At this difficult time of arbitrary use of power everywhere, the courage and integrity of the judiciary itself is being tested. The efforts are getting momentum to make justice by judges irrelevant.

The law to impeach the justices of the Supreme Court by the One-house Parliament is an audacious move to empower the Prime Minister as Leader of the House to sack the Chief Justice and other justices of the Supreme Court. Only under a parliament of two houses such power of impeachment is available. The Lower House initiates the impeachment proceedings, but it cannot punish a justice without the backing of the Upper House. So our parliament can at best claim the power to initiate impeachment proceedings. Whether he (a Supreme Court Judge) is to be found guilty or not will have to be decided by a different body created by law as there is no Second Chamber. And the body has to be like the present Supreme Judicial Council as contemplated under Article 96 of the Constitution but declared invalid to being introduced under a Martial Law government.  

If what the government claims is conceded to then there will be no separation of powers as the basic structure of our Constitution. Only the executive power will prevail.

How to protect the judiciary to dispense impartial justice for saving the people from police justice is the greatest challenge the judiciary now facing. If the judiciary cannot protect itself then it's sacred obligation of protecting the Constitution is abandoned also.

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