To our shame Mushtaq's death shocked world conscience and demanded investigation02 March 2021 MAINUL HOSEIN
Let our conscience revolt against deaths of many like Mushtaq. As dissident critiques they lost their lives from torture. Distorting our legal system persons can be easily denied bail and taken into police custody for subjecting them to torture even to killing.
We do not know the facts in detail to assess how it all happened. This much is known as a writer a case was started against him and another under the much dreaded Digital Act as is shortly described.
He was not tried under the law to find him guilty. Before that he lost his life. Thus he did not have to wait for trial under the stringent black law against free expression. So he was not a dangerous murderer or terrorist. He was refused bail six times is also in the news. In other words use of the Digital Act was not necessary to punish him with death.
The conclusion is unavoidable that he was taken into police custody and tortured mercilessly. He could not be released on bail for revealing his condition. Otherwise, a non bailable offence does not mean no bail. The courts could have granted him bail unless they were under heavy pressure.
Now we have to see the government's reaction to the international demand for investigation. Within the country also angry protests have emerged in the midst of police resistance. We know our constitutional rights mean nothing to the government and it was necessary to express concern internationally for the death of writer Mushtaq allegedly for saying something objectionable in his facebook. One wonders how dangerous words could be that he had to be finished without the need of trial.
Our police and others involved, should also know that as state officials they have no immunity against individual liability to state sponsored crimes. Obeying orders of higher authority was not accepted as defence by our International Tribunal in delivering death sentences for acts against humanity. Surely killing is a crime against humanity.
On the issue of life and death the cautious policy should be : Live and let live. Ruthlessness ends in greater ruthlessness of more dangerous kind. Unnecessary ruthlessness is an expression of the sickness of mind.
Our judiciary should take a strong position on bail matters after the ill-fated death of writer Mushtaq hurting international conscience. Mushtaq was killed by over enthusiastic few but it tainted the image of the police and our justice system badly. Thirteen important countries have protested the death in custody furiously.
Refusing bail merely on allegations, however grave, can be seen in no other way than punishing a person innocent in law unlawfully by the judiciary. The judiciary has to be more careful if it is to avoid being used politically for politically induced cases.
The government should know that their politics is theirs. But judiciary must not be dragged into their politics.
It is demeaning for the justice system to rely on police and say : "There are serious allegations against you in police report so you suffer in jail though in law you are innocent till found guilty".
Our Constitution strictly prohibits torture. Remand in police custody for interrogation is allowed as a matter of course by our courts. Only the higher judiciary, in spite the pressure on them, try to take a humane view for releasing a person in jail before trial. The judge can do more to send a clear message about this far and no further. The judiciary is respected as part of the international judiciary for protection of human rights guaranteed under the UN declaration of human rights. So the judiciary is not alone.
I have to admit also about the prejudice against bail in public domain. The people think there will be no justice in the end so let the accused remain in jail for a while. The people have become used to accepting that filing a case means no bail. This mindset has to change.
Many of us are forgetting our past honourable days to adopt the new anti-people habit of the present system under which helping the people about their rights is an anti-state behaviour. The judiciary cannot have any part of such unjudicial thinking.
Bail is to be refused if the accused is considered from the past records to be a danger to society. The judiciary is not judiciary if it is unable to offer even in the worst conditions the minimum protection against non-judicial killings while using the judicial process.
For not getting bail many families have been disintegrated in the absence of the bread earners. The police do not feel urgency of proving the guilt of the persons in jail for not getting bail. This is a major reason why there is no hurry to put the accused on trial. False cases will be exposed. Certainly we are not a mindless and heartless nation.
Justice is not just bare bones of a law without social conscience.
Fear is there as an infectious disease, yet we are not living under the rigid police state. We are slavishly too obliging. A little courage we must all have for our own honour and dignity.
Why cannot we ask to explain the reason for interrogating an accused by the police in an atmosphere of terrible intimidation of losing his life? Under the Constitution he cannot be compelled to be a witness against himself meaning he cannot be forced to admit his guilt. If not more, in 80 per cent cases confession is obtained through torture. We call it police investigation. Our police as well as the judiciary is becoming controversial for the might is right political system we are helping to sustain.
The High Court Division's judgement about the detailed guidelines for interrogation are binding on the lower judiciary and the police. The accused should be interrogated if justified in the jail gate within the hearing distance of his lawyer. The guidelines have lost their importance both to the court and the police.
The judicial process must be protected as a justice system for everybody's security of life. If the judiciary is not for the people to dispense justice there will be no hope to be law abiding. That is why lawlessness of government fosters lawless mass chaos of much more dangerous type.