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Not to be above law must mean not to suffer abuse of law

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By MAINUL HOSEIN
10th-Jul-2017       
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When two former Chief Justices namely Mr Justice A.B.M. Khairul Haque and Mr Justice Md. Tafazzul Islam have reminded us that nobody including a judge is above law with reference to a circular said to have been issued by the Registrar's Office of the Supreme Court to the effect that no corruption case against a sitting judge should be initiated without consultation with the Supreme Court, the matter raises some questions for clarification.

We can readily agree when there is the rule of law, the principle that nobody is above law is non-violable. But where abuse of law is the order of the day and submissiveness exists as a bad addiction among many we have to think twice.

The problem is not the law and its proper use but the abuse of law and its unjust use. We need to be sure that we have a system where abuse of law is not a prerogative of the power that be to have the confidence that the law is not abused to victimise anybody with an ulterior motive.

The judiciary is the institution that is vested with the power of protecting the constitutional supremacy and determine what is law and what is not. But the judiciary is under threat to make the will of the government the law. Law has to be the wish of the people. 

Mr Justice A.B.M. Khairul Haque is presently the Chairman of the Law Commission. His opinion deserves special consideration for the very reason that for him to protect the independence of the judiciary must be one of his very important areas of concern to make the Law Commission worth having.

Any fair application of law depends on how strong and independent is the judiciary. The independence of the judiciary means the judges should be able to act without fear.

In countries where the judiciary is independent, the judges enjoy absolute immunity for civil liability even if their judgements cause losses to others unless malice can be defected. So some form of consultation with the Supreme Court is necessary for the court to know why a judge cannot be sued for damages. Such consultation should be seen as proper and rightly warranted.

The next but the most important question is the question of public trust in the judiciary. Freedom for a judge is not a loose cannon. But he must be allowed, in public interest, to do justice without fear or favour. If the judges have to worry about abuse of power and false court case against them the independence of the judiciary will be denied the other way.

To find a sitting judge facing corruption cases is a serious matter as it affects public trust in the honesty of the judicial process. So it is a  legitimate concern of the Supreme Court to ascertain if the allegations justify corruption cases or not. This is not to say a judge is above law.

We are, somehow, proving to be a thoughtless nation most eager to serve self-interest. Thinking constructively for the greater interest of the country is a lonely and risky exercise for the few.

If criminal proceedings can be freely initiated against a sitting judge without the safety of consulting the Supreme Court first it is quite possible that the judiciary will be non-functional. There will be free abuse of law against the judges.

The Anti-Corruption Commission should be a very responsible body not to start corruption cases without weighing the damage done to the persons in terms of honour and social standing. Let them secretly convince themselves about the existence of a serious corruption case before publicly humiliating one.

The fact is after filing an FIR and making known about the corruption case, the authority takes few years to complete the investigation. Thereafter, there is no certainty when the case will be heard.  When the trial begins, nobody can say where it will be finished. So the public humiliation and personal sufferings go on. Our aim should be to build an honourable society.

In our view corruption is best fought by not dishonouring anybody unnecessarily. They (ACC) should not be interested in filing hundreds of corruption cases. The best way to fight corruption is to begin at the top. Corruption of the powerful ones must be dealt with bravely to put fear in the minds of others. Nobody is above law should mean no powerful man is above law. When corruption is not an easy game of the powerful ones, others will not be easily tempted.

In our country the tendency is to pass laws giving the authority arbitrary powers. Under the dominance of bureaucracy, the rights and liberty of the citizens are no consideration. The Anti-Corruption Law gives the authority the power of arresting for investigation before filing an FIR. The question is if fundamental rights have any value?

The Anti-Corruption Commission enjoys jurisdiction over wide number of offences. To deal with offences other bodies such as Board of Revenue, Income-tax authority or Customs people and RAJUK have become redundant. Any and every illegality should not be treated as corruption. But that is what is possible under the Anti-Corruption Law.

Our laws are passed so whimsically that for a person to be law abiding is almost impossible. Our laws are good for lawlessness. 

Arrogance of power is such among some that they do not care to know that we belong to a free country and our liberty is guaranteed as a fundamental right. Some authorities behave and act as if we are living in a police state.

The requirement of a sitting judge to be free from fear of Anti-Corruption Commission is essential. But that does not mean the criminal cases will not lie against a sitting judge; only need is to consult the Supreme Court.

Once investigation into an allegation of corruption is initiated the Chief Justice has no option but to withdraw the judge from hearing cases. The need of the Supreme Court to be satisfied about the justification of a criminal case against any of its judges must be seen as imperative for the protection of independence of the judiciary.

One simple sentence that nobody is above law is not so simple. The consultation with the Supreme Court can be seen as some immunity for the judges but it is not impunity against the law.

If we are aware of the situation in our country then it should not be unknown to anybody that the main problem in our country is how to protect oneself from the abuse of law and live with one's dignity.

Our selfless educated ones must be bold and active to show the world that we are capable of protecting justice and fair play for all like any other free country. We know a person does not become a criminal as soon as an FIR is filed. His fundamental rights must mean protection of his liberty till he is found guilty by a court of law.

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