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Treat bail as right to stop imprisonment without trial

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By MAINUL HOSEIN
07th-May-2017       
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It should not have happened to the people of free Bangladesh but it is happening. The police power in fighting crime is being used for the innocent ones to fear the police and frighten the criminal justice system. The arrest by police is not for facing trial but near sure imprisonment without trial.

The torture in police custody cannot be ruled out. Our police would not have been so unjust and bold if the court had not cooperated easily. Both the courts and the police are also heard to complain of political pressure under the cover of fighting terrorism.

True fight against terrorism must mean speedy trial and quick exposure of the terrorists. We have special courts for speedy trial. But that does not happen.

The rule of law and human rights are not proving much by way of protection of law to our people. No government should feel secure where justice is not secured. The helpless people are helpless also for saving the government.

A national Bengali daily published a report Friday to reveal that some 600 prisoners are for 5 to 14 years in jail yet no trial has been completed. There are many excuses why the trials did not take place. The main one is failure to produce witnesses. Many other cases being baseless there will be only evasion of justice for delaying trials.

We had news earlier also pointing out persons spent 18 years  or so in jail without trial and the High Court Division granted them bail sou motto.

Justice is not just a matter of law, it is much more a matter of minds and hearts of the judges.  Among all the democratic institutions the judiciary is the most humane institution. Only money compensation from public funds for the years  they lost in jail cannot be enough. We must re-examine the working of the justice system. The situation is such that the Supreme Court has to do it.

The judges must be feeling the pain for not releasing them on bail although they must have been presumed innocent. For the refusal of bail criminal cases are being used to keep political opponents in jail without bail.
Impartial justice means it protects the innocent as strongly as it punishes the offenders. The presumption of innocence is the corner stone of the justice system. Granting of bail is never unconditional and the person so on bail remains in judicial custody. He remains under restraint.

Fighting for the judiciary is futile if people can be made to suffer imprisonment for years without trial. Speedy trial is not the complete answer to discouraging false cases. Granting bail is more effective against false and vindictive cases.

Oral battle of the Chief Justice in defence of the judiciary will have no impact unless the judiciary is also ready to be brave in protecting the people's liberty in doing justice. The judiciary is facing the challenge of its survival as an institution of justice and save the democratic Constitution as its protector. It is be remembered that the judiciary as an important people's organ for securing justice has to fall back on its popular base for its power to fight external interference.

We read news often to know how the under trial prisoners spend years under the rigorous regime of jail life away from family. By denying bail the courts have made it easy for the arrested ones to be kept in jail without the urgency of putting them on trial.

It is unfortunate that the judiciary is fighting a lonely battle for its meaningful existence. The lawyers are divided among the major two political parties as their activists. They are unmindful of their own role as defenders of the judiciary. They are party activists of undemocratic parties with no respect for the rule of law. Even the Law Minister who is otherwise well mannered is not aware that he is a minister only and the Chief Justice is the Chief Justice of Bangladesh.

Nothing could be more disappointing than when the lawyers are not loyal fighters for the independence of the justice system. In the same way the fourth pillar of democracy does not exist in Bangladesh. Because the journalists are mostly party activists seeking political favours and positions.

The judiciary alone cannot save democracy without which independence of the judiciary is unthinkable. But as long as the whole democratic Constitution is not buried the Constitutional position of the judiciary is worth defending.  If the judges can stand its ground together then no force will find it easy to make the process of justice powerless. There will be hope that though we do not have a functional democracy but we have saved ourselves from the worst of autocracy.

No court can think of doing justice without recognising one's liberty. Unless the accused has the liberty of defending himself freely justice becomes a one sided mockery.

The justice system in order to be effective as a justice system it must allow the accused the benefit of innocence before his guilt has been proved. We still have our fundamental rights under the Constitution on the side of the judiciary. These fundamental rights are obsolete if these are of no help when a person is arrested by the police for an alleged offence.

If a person can suffer imprisonment merely for suspicion of committing an offence then there is no need of impartial trial and credible evidence. To help police investigate the allegation a person should be refused bail is an easy denial of one's fundamental rights. Arrest first, investigation later cannot be acceptable before a court of law.

More particularly refusing bail before charge sheet should be an exception and not the rule. We start with the belief that there is nothing wrong to keep an arrested person in jail for some time. The FIR story is to be taken seriously than the presumption of innocence or his right to be free.

 We are making the country difficult for honest people to live in freedom and honour. If one is arrested for an alleged offence his reputation is in jeopardy. By the time his trial is finished and found innocent after long years in jail he is mentally and financially wrecked. He is not half the man he was. The justice system is to keep us civilised.

Impartial justice means it protects the innocent as strongly as it punishes the offenders. But in our system as soon as someone is arrested he ceases to be innocent.

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