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If justice is not more than law, it is autocracy

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By MAINUL HOSEIN
04th-Mar-2016       
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In a fumbling democracy the judiciary has to play a very responsible role to save democracy to save itself. Without democracy, judicial independence does not exist even as a myth.  Free speech and the free press are guaranteed for protecting the government in a democracy from the self-seeking sycophants. Our Constitution has guaranteed such rights.The Supreme Court judges are guaranteed independence for protecting democracy and the rule of law so that the justice is not derailed by power politics. We are fortunate that the people have not yet given up hope on the judiciary. But the lower judiciary needs to be guided and strengthened to withstand political pressure. For whatever reason, when justice is denied the forces of lawlessness prevail and social tranquility disturbed paving the way for chaos.There is already a great deal of lawlessness to be worried about. There is lack of human considerations for life and safety. The pressure of uncertainty and insecurity is such that parents kill their children being worried about their future. At least more than one such incident has been brought to light by the media. The judiciary has a big role to play to protect society from the forces of injustice and cruelty. We know how lonely and difficult the expectation of the nation is. The people are bewildered to see defamatory cases are initiated in courts by others not defamed. The courts have also accepted such cases to issue summons to compel appearances of the alleged offender. The truth is, against an editor on a genuine defamation allegation cases can also be filed legally in many places of the country.It is an unhappy situation that journalists did not care to change the laws to make the process rational. In the Press Commissions' Report there are definite recommendations to alter the defamation law for clearly defining what is criminal defamation and what is civil defamation. In other democracies this distinction is clearly maintained, so that for every defamation a journalist is not treated criminally. The journalists must know how to protect their rights and dignity. But many journalists are happy to be party activists seemingly without caring for protection of the profession of journalism. Most defamation matters are civil in nature. In spite of that, under the present law all defamation cases are conveniently treated as a criminal offence. But the journalists have not taken any initiative in this regard to change the law. They are being harassed by defamation cases filed everywhere for a single defamation matter.It is reported that a case has been registered as a sedition case by the Home Ministry without worrying about the need of finding the ingredients of the offence of sedition. We are surprised to find such a report in a national daily. Where sedition is easy, the government must be too unsure of itself. Anybody can call murder being committed so frequently in the country as a crime against humanity. In fact, every killing is a crime against humanity. Sedition is a serious offence against the government and in a democracy it should not be an easy matter to bring such an accusation. No democratic government will overreact to such an isolated comment. But threats of sedition cases are heard too often.What is disturbing is the easy tendency to use the judiciary as a show of power and create frustration of helplessness among many. The reputation of the judiciary is a very sensitive issue and protecting the justice system is essential for preventing lawlessness in the country. What the government fails to understand is that the police actions alone cannot maintain peace and order in a free country without the help of a fair and strong justice system to ensure protection of law to the citizens. Without the certainty of justice and protection of law there cannot be social order. Abuses of power is everywhere in public life.  For it's heavy responsibility, it is only the judiciary that has been guaranteed the independence for safeguarding the peoples' freedoms under the rule of law. No other branch of the government enjoys constitutionally guaranteed independence in performing functions assigned to it.The politically motivated cases for using the judiciary for the benefit of politics of power struggle must be discouraged if the judiciary has to remain free of political controversies. Malafide use of law is no use of law. The policy guidelines from the Supreme Court for the lower judiciary should be clear that politics must not be mixed with the justice system.The lower courts have to rely on the Supreme Court for the necessary courage and integrity. The process of justice begins in the lower courts and it is at this level all efforts are at work to derail the course of justice.Political cases cause unnecessary pressure on the lower judiciary in considering bail and remand matters. In politically inspired cases, the government naturally insists against granting of bail as part of the political motive.Because, it is normal for the government side to urge strongly in political cases that the accused political leaders and workers should suffer the humiliation of police remand, it is now a normal practice to send an accused to police for interrogation. It does not matter if such remand is a violation of the Constitution or not.Our Constitution prohibits torture and making an accused give evidence against himself. The accused are under huge anxiety as how to obtain bail and avert police remand. It is for the rule of law that the people will not be made helpless before the process of justice. Toughness in getting bail in every matter is a sure way to make the path to justice dreaded. It is the idea of justice that gives humane face to the law and faith in the judiciary. We support that everything must be done to maintain the purity of the justice system in the lower judiciary where foundation of justice is laid. But the public perception that corruption is most extensive in the lower judiciary must be dispelled by making justice system as the protector of freedoms. The judiciary should function as the citadel of justice and freedom.  Our international image as a civilised people depends on the image of the judiciary. The politicians are known for their inclination to be oppressive and undemocratic. The judiciary is independent and the Chief Justice of Bangladesh has rightly appealed to all to help uphold the image of the judiciary. But the image of the judiciary means public faith in the judiciary and this faith has to be built by the judges themselves relying in their own courage and conscience. When the lawyers are divided as political activists they cannot be counted as much of a force for helping the judiciary unitedly. Nothing could be more disappointing for the rule of law and democracy. The lawyers must realise they are loosing their own identity and own role. 

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