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Wednesday, September 26, 2018 07:51:43 AM
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Clash with the judiciary will have dangerous consequences

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By MAINUL HOSEIN
26th-May-2017       
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The present clash between the government and the judiciary will have dangerous consequences for both unless stopped. Any attempt to make the judiciary obliging to the government means denying the judiciary of its role as protector of the Constitution as well subverting the fundamental rights guaranteed under the Constitution.
If the Constitution ceases to be its own saviour the government itself loses its basis of constitutional legitimacy. To put more bluntly, the government becomes a usurper. So those in the government wants to demolish the people given Constitution should have time to think of the consequences.
The clash with the judiciary first started with dragging the government's feet in not complying with an innocent order of the Supreme Court to issue gazette notification publishing the service rules for the lower judiciary.
Thereafter came the issue of sending of lower court judges to Australia and other countries for training without consulting the Chief Justice.
Before that, a law has been passed by the parliament authorising itself to punish the justices of the Supreme Court. This means in effect as leader of the parliament the prime minister will be the dismissing authority of the Supreme Court justices.
This issue is now being argued   before the Appellate Division of the Supreme Court. The High Court Division had already declared the law as unconstitutional.
The indications are clear that the government is keen to have unrestrained power to deny the rule of law and play with human rights. We find it unbelievable that the government is eliminating one after other the democratic institution and still calls itself a democracy.
The fact is it will not be possible to obliterate the Constitution this time. We know Bangabandhu also assumed the power of dismissing the justices of the Supreme Court. But he is no more. Nobody can claim his stature. But he also failed.
In our view not to allow the opposition in the parliament is unconstitutional. The parliament without the opposition is no parliament under the Constitution. Its election is in question.
Perhaps the undemocratic forces in the government saw it as too much of a weakness on that these issues did not come before for a decision. They are now taking chances for gaining the audacious power of sacking the justices of the highest court.
The Constitution is very much here if the Supreme Court does not want to end its own existence. If asked to, the government's electoral legitimacy will be for the Supreme Court to decide. Nobody knows where the government is leading itself to.
The mistake was made by the Supreme Court earlier when by a majority of one, the Supreme Court judges allowed the government to remain in power during election time. Under any parliamentary system, it is unthinkable that there will be elections of the parliament without dissolving the parliament. In the judgment not a single instance was cited where it is practiced.
Now peaceful election for transfer of power remains a far cry. This was a mistaken judgment sending wrong signals to the undemocratic forces. It has to be corrected sooner or later if democracy and the democratic Constitution are to survive.
The international community is anxious to see the next election free and fair. Under the present constitutional arrangement it will be miraculous to have a credible National Election.
Likewise the criminal justice system is also facing serious crisis of public confidence because of crisis of human rights. Arresting a person by police or an Anti-Corruption officer means no bail. Mere arrest is conviction because he suffers in jail. To pray for bail by his lawyer is seen by some judges as co-operating with the crime. Bail is treated as punishment.
The politicised police must not be believed more than necessary. They have arrested the person on suspicion of committing an offence. Now the person is in court's custody and the court should feel fully free to try him to find if he is really the offender.
But bail should be considered on the legal assumption of innocence unless there are materials from the past to show he is unsafe for society.
The presumption of innocence makes the justice system different from police state system. The police think that the person they have accused is guilty. But the courts are supposed to say no, he is innocent before found guilty by a court.
The distinction in attitude that an accused is not to be treated as offender just because the police say so makes a judge so different from a police officer. The accusation is no proof of the crime.
Not only the courts, every citizen must help the police. But not at the cost of his fundamental rights to be free to defend himself. Not also at the cost of legal presumption of he being innocent.
This principle of innocence makes the court the biggest protection to the accused and the surest reason for his faith in the judiciary. The judiciary becomes strong by saving the innocent. By compromising justice the judiciary does its own harm.
The police must be made to work hard to prove the accusation to be right. It is feared that too many false Casper are lodged making it possible for too many criminals to remain free. It is no wonder that crimes are rising.

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