Assurance of the Chief Justice is very reassuring19 October 2016 Editorial Desk
He said as above while addressing the Bangladesh Law Society-an organisation of Bangladeshi-American Lawyers in New York city last Monday .
It is acknowledged generally that where democracy does not function rightly the judiciary cannot function independently, no matter what the Constitution says. Whatever doubts we have about the working of democracy we have the assurance from the Chief Justice about the judiciary being functionally fully independent.
If the courts are independent the people do not have to worry about the protection of their fundamental rights. They have the judiciary to give the necessary protection. The people are truly free. And justice cannot be denied.
Under autocracy also it is claimed by the government that the courts are independent. But it is also known to the courts and the people that the courts are not free to disoblige the government.
But when the Chief Justice voluntarily and freely comforts the people about non-interference from the government in being treated in accordance with law then he also ensures the determination of the courts to fully use their independence against the abuse of law.
In Bangladesh the fundamental crisis is the abuse of rule of law. It is not just the police power that is abused but anybody with any state power finds it easy to abuse. Where the courts are free to act independently abuse of power cannot continue freely.
The Chief Justice is the source of strength for all the judges. The courage to act independently comes not from any law as such but from the personal faith that a judge is not alone.
It is generally known that the Chief Justice himself is anxious to protect the dignity and independence of the judiciary. As the Chief Justice he has the advantage of the support of the international community and the people for the cause of independence of the judiciary. The fundamental rights are universal fundamental rights upheld by the United Nations. The people know filing complaint with the police is not easy matter even against a local political leader.
For the rule of law the judiciary has to provide courage to the police to be law-abiding and not just compliant with illegalities.
It should not be unknown to the Chief Justice how unsafe and insecure our people are for fear of arrest without warrant and death by cross-fire. It is alarming that persons are missing and no protection of law is available.
The Chief Justice himself voiced words of caution not to arrest anybody without warrant. It is part of a judgment by him that police remand must not be granted first time before interrogating the accused in the jail under special arrangement. But the lower court judges are showing themselves helpless.
Police remand has remained a handy tool in the hands of the prosecution. Investigation has become an easy dark room affair. It is not rule of law and against protection of the Constitution to interrogate an accused without aid of a lawyer.
The rule of law must mean that nobody is guilty of an allegation unless the court finds him so. In reality if allegation of terrorism is brought against one he is treated to be a terrorist for all purposes. It is impossible for him to get bail unless the Supreme Court interferes. Nobody is answerable if he is killed. He is found terrorist and police kills. If there is no safety of law under law, how the court can protect life?
If depriving a person of his life and liberty is so easy then the police do not remain law enforcers and the independence of the courts has no meaning. Accountability of police has to be ensured by the court to ensure the rule of law.
If anybody wants to ruin someone including his family members then the easiest way is to abuse police power and got him arrested as a terrorist.
The constitutional guarantee that no 'person shall be deprived of life and liberty save in accordance with law' means only one thing and that is: The court will decide whether he deserves to die or his liberty to be denied.
The Chief Justice also spoke about martial law having been buried. This is in the domain of politics and the politicians to worry about it. We are concerned with the rule of law and the Chief Justice is the best person to show his commitment to uphold the rule of law and he has so done most clearly. We know this much that where judiciary is strong autocracy has no chance to succeed and the people remain the source of power. The Chief Justice deserves all the respect he should enjoy for protecting the people's rights. .
The only democratic institution that seems alive and kicking is the judiciary.