Denial of bail violates the constitutional rights
Tuesday, 25 November 2008
Barrister M. A. Muid Khan
BANGLADESH has been under a state of emergency since January 2007, led by an interim government which replaced a previous caretaker government established, in accordance with the constitution, to govern the country during the campaigning period running up to the January 2007 elections. This followed months of political, social and industrial unrest, which intensified during the election period. The President, following his resignation as Chief Advisor, cancelled the elections and instead appointed a new interim government in January 2007. It announced that the new regime would hold power for a limited period - only until conditions were stable enough to continue with the election. Over twenty two months later, the successor caretaker regime remains in power. New national elections are now scheduled to take place in December 2008.
The present caretaker government has taken several reformatory steps, which were welcomed by many Bangladeshis and international observers as a necessary antidote to massive corruption, widespread abuse of power, and a sense that the political process was failing to offer even the possibility of good governance. To this end, on January 11th 2007, the President declared a State of Emergency and on the 12th January issued an Emergency Power Ordinance (EPO) "to provide for special measures for ensuring the security, public safety and interest and for protecting the economic life of Bangladesh and for securing the maintenance of public order and for maintaining supplies and services essential to the life of the community."
On the 25th January 2007 the caretaker government used the provisions stated in section 3 of the Emergency Power Ordinance (EPO) to issue a set of Emergency Power Rules (EPR), with retroactive effect from the 12th January, to be enforced by law enforcement agencies including the police force, armoured police battalion, Rapid Action Battalion, Ansar, Battalion Ansar, Bangladesh Rifles, Coast Guard Force, members of National Security Intelligence and Directorate General of Forces Intelligence and Bangladesh armed forces.
The EPO provided death penalty and life-term imprisonment with fine for violating them and also any other rules with retrospective effect. As per rule 11(3) of the Emergency Power Rules, 2007, if any court convicts a person for committing corruption, no other court can grant bail to the convict or stay the conviction order until an appeal, if the accused chooses to file, is disposed of. The two other rules (19(Gha) and 19(Uma)) do not allow an accused to pray for bail or any kind of redress with the court or tribunal during the investigation or enquiry of the offence.
Theses rules were challenged before the High Court on the ground that they deny people's rights, including the right to obtain bail in cases filed under EPO. The High Court in a recent judgment pronounced that no law could be formulated that goes against the constitutional provisions regarding fundamental rights. Therefore, in this article an attempt would be made to identify whether the provisions regarding the no bail and other punishment contained in the EPO contradict the country's existing laws and the Constitution of the Peoples' Republic of Bangladesh.
It is submitted that the amended Emergency Power Ordinance 2007 does not say that any rule could be formulated in contradiction with the Constitution. The ordinance only gave the government the authority to formulate rules but not to formulate any that goes beyond the ordinance itself.
Nevertheless, the emergency rules contained in the EPO have restricted the court's authority to grant bail. These rules also contradicted articles 31-33 and 35 of the Constitution. According to the provisions in Articles 31-35 of the Constitution, none of the rights of a citizen, including the right for bail, can be curtailed by promulgating any act during the state of emergency.
A very close observation upon the provisions contained in Sections 19(Gha) and 10(2) of the EPR would reveal that they have restricted the power or right of the court, including the Supreme Court (SC), to grant bail, which contradicts with the provision for bail ensured in sections 497 and 498 of the Criminal Procedure Code (CrPC). These sections even entrust the court with the power to grant bail in case of non-bailable offences. The power of granting bail in sections 497 and 498 of the CrPC cannot be barred as these provisions contradict the existing laws and the constitution. Section 7 of the EPR also contradicts the exiting law and the constitution.
In my opinion, the rights provided by articles 27-35 of the Constitution to the citizens of Bangladesh have not been restricted even during the existence of the state of emergency. If any law or provision inconsistent with these constitutional articles is formulated, the High Court is entitled to cancel such laws and such void laws cannot be applied in any other court.
Article 35 of the Constitution provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than or different from that which might have been inflicted under the law in force at the time of the commission of the offence.
Article - 31 of the Constitution states that an accused is entitled to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law and no action detrimental to the life, liberty, body, reputation or property can be taken except in accordance with law.
In view of Article -26(2) of the Constitution, no provisions inconsistent with the provision of Articles - 31,32,33, and 35 of the Constitution (of Bangladesh) can be included either in the EPO or in the EPR. As mentioned earlier, if any such inconsistent provision is found or added therein, the High Court can declare those as Void in terms of the Constitution. Thus the provisions of Rules 19Gha, 10(2) and 11 of the EPR so far relates to bail, are bad and void.
In accordance with the provisions of Article 26(2) of Constitution of Bangladesh, no law can be made inconsistent with the provisions of the fundamental rights, detailed in Part III of the Constitution, and subject to restrictions mentioned in Article 141B thereof during the Emergency, and accordingly the provisions relating to "denial of bail" as appearing in Rules -19Gha, 10(2) and 11 of the EPR are void. Therefore, the power of the Court relating to granting of bail under Sections 497 and 498 of the CrPC remained unaltered and unaffected and that Emergency did not affect the existing power and authority of any Court of law relating to trial of case and or bail.
In my view, the existing right or benefit of the people can only be altered or affected through enactment of a law consistent with the provisions of the Articles contained in Part III of the Constitution and that a law can be made by the Parliament, when in session, otherwise by the Honourable President promulgating Ordinance under the authority of Article 93 of the Constitution.
The EPO was not empowered to formulate any rule that can cover incidents that took place before the declaration of the state of emergency. The ordinance thus does not permit bringing any offence committed before January 11, 2007--the day the state of emergency was declared--under the EPR.
Therefore, "Considering the preamble of the Constitution as well as the provisions of Article 26" the Honourable judges declared illegal a government sanction to try an extortion case against detained former Prime Minister Sheikh Hasina under the Emergency Power Rules (EPR) and quashed the trial proceedings, and had ruled that the High Court can grant bail even to those convicted in the cases under the EPR.
In their judgment, the honourable judges also held that, "…no law or rule or any provision can be made during the Emergency curbing or curtailing the authority and power of the Supreme Court of Bangladesh, subject to the restrictions imposed by the Articles 141 B and 141 C and that during Emergency period no law or rule can be framed inconsistent with provision of Articles 27 to 35 and as well as any existing law and the orders passed by the Judges of the Supreme Court….".
The Honourable judges further held that, "The provisions negating the authority of the Court to grant bail under Rules -19 Gha, 10(2), 11 and 15 Gha of the EPR, being inconsistent with the provisions of Articles 31, 32, 33 and 35 of the Constitution as well as Sections- 426, 496, 497 and 498 of CrPC, are void and the power and authority of the Court under sections 426, 496, 497 and 498 of the Code of Criminal Procedure relating to granting of bail has not been affected or infringed by said Rules-19Gha, 10(2), 11 and 15Gha of the EPR. Further no penalty or sentence can be imposed by any Rule of the EPR, framed under the authority of EPO. Since the Rules-3, 4, 5, 6, 7, 8 and 15Gha of the Rules, 2007 are inconsistent with the existing law as well the provisions of Articles 27 to 35 of the Constitution said Rules to the extent of the inconsistency for containing the provisions of penalty and sentence are void as per Article 26(2) of the Constitution. Since in the Rule the impugned sanction is under challenge and we have found that the impugned sanction has been given without lawful authority, for non-fulfillment of the conditions-precedent set out in Rule-19Nyanh (4) and the alleged offence having been committed prior to the promulgation of Emergency, the instant case initiated under the Emergency Power Rules 2007 is illegal, without lawful authority and cannot be proceeded with further. In fine it is held that, "any case arising out of an offence committed prior to the date of promulgation of the Emergency i.e. 11.01.2007 cannot be tried under the Emergency Power Rules, 2007".
However, while we are pleased that offences allegedly committed before the declaration of emergency will not be tried under emergency rules, we nonetheless want there to be thorough investigations into allegations of corruption and abuse of power by politicians, businessmen, public servants and whomever else against whom such allegations exist. We also want there to be proper trials under the ordinary laws of the land of those against whom the government finds evidence of wrongdoing.
In view of the above discussion, it is evident that the provisions regarding denial of bails contained in the EPO violated the fundamental rights granted by the Constitution to the citizens of Bangladesh. When the rights of a citizen are riddled with question, it is the judges' responsibility to protect those rights by applying the constitutional provisions with a view to establish the rule of law. We are not sure whether the High Court bench is right in quashing the case against the former Prime Minister Sheikh Hasina altogether and hope that the Appellate Division will give a direction in this matter and allow for proper trials of those against whom the government has real evidence of corruption and crime under the ordinary laws of the land and in accordance with the due process of law.
(The writer is a Barrister of the Honourable Society of Lincoln's Inn. He is working as a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm. He is also an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk).
BANGLADESH has been under a state of emergency since January 2007, led by an interim government which replaced a previous caretaker government established, in accordance with the constitution, to govern the country during the campaigning period running up to the January 2007 elections. This followed months of political, social and industrial unrest, which intensified during the election period. The President, following his resignation as Chief Advisor, cancelled the elections and instead appointed a new interim government in January 2007. It announced that the new regime would hold power for a limited period - only until conditions were stable enough to continue with the election. Over twenty two months later, the successor caretaker regime remains in power. New national elections are now scheduled to take place in December 2008.
The present caretaker government has taken several reformatory steps, which were welcomed by many Bangladeshis and international observers as a necessary antidote to massive corruption, widespread abuse of power, and a sense that the political process was failing to offer even the possibility of good governance. To this end, on January 11th 2007, the President declared a State of Emergency and on the 12th January issued an Emergency Power Ordinance (EPO) "to provide for special measures for ensuring the security, public safety and interest and for protecting the economic life of Bangladesh and for securing the maintenance of public order and for maintaining supplies and services essential to the life of the community."
On the 25th January 2007 the caretaker government used the provisions stated in section 3 of the Emergency Power Ordinance (EPO) to issue a set of Emergency Power Rules (EPR), with retroactive effect from the 12th January, to be enforced by law enforcement agencies including the police force, armoured police battalion, Rapid Action Battalion, Ansar, Battalion Ansar, Bangladesh Rifles, Coast Guard Force, members of National Security Intelligence and Directorate General of Forces Intelligence and Bangladesh armed forces.
The EPO provided death penalty and life-term imprisonment with fine for violating them and also any other rules with retrospective effect. As per rule 11(3) of the Emergency Power Rules, 2007, if any court convicts a person for committing corruption, no other court can grant bail to the convict or stay the conviction order until an appeal, if the accused chooses to file, is disposed of. The two other rules (19(Gha) and 19(Uma)) do not allow an accused to pray for bail or any kind of redress with the court or tribunal during the investigation or enquiry of the offence.
Theses rules were challenged before the High Court on the ground that they deny people's rights, including the right to obtain bail in cases filed under EPO. The High Court in a recent judgment pronounced that no law could be formulated that goes against the constitutional provisions regarding fundamental rights. Therefore, in this article an attempt would be made to identify whether the provisions regarding the no bail and other punishment contained in the EPO contradict the country's existing laws and the Constitution of the Peoples' Republic of Bangladesh.
It is submitted that the amended Emergency Power Ordinance 2007 does not say that any rule could be formulated in contradiction with the Constitution. The ordinance only gave the government the authority to formulate rules but not to formulate any that goes beyond the ordinance itself.
Nevertheless, the emergency rules contained in the EPO have restricted the court's authority to grant bail. These rules also contradicted articles 31-33 and 35 of the Constitution. According to the provisions in Articles 31-35 of the Constitution, none of the rights of a citizen, including the right for bail, can be curtailed by promulgating any act during the state of emergency.
A very close observation upon the provisions contained in Sections 19(Gha) and 10(2) of the EPR would reveal that they have restricted the power or right of the court, including the Supreme Court (SC), to grant bail, which contradicts with the provision for bail ensured in sections 497 and 498 of the Criminal Procedure Code (CrPC). These sections even entrust the court with the power to grant bail in case of non-bailable offences. The power of granting bail in sections 497 and 498 of the CrPC cannot be barred as these provisions contradict the existing laws and the constitution. Section 7 of the EPR also contradicts the exiting law and the constitution.
In my opinion, the rights provided by articles 27-35 of the Constitution to the citizens of Bangladesh have not been restricted even during the existence of the state of emergency. If any law or provision inconsistent with these constitutional articles is formulated, the High Court is entitled to cancel such laws and such void laws cannot be applied in any other court.
Article 35 of the Constitution provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than or different from that which might have been inflicted under the law in force at the time of the commission of the offence.
Article - 31 of the Constitution states that an accused is entitled to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law and no action detrimental to the life, liberty, body, reputation or property can be taken except in accordance with law.
In view of Article -26(2) of the Constitution, no provisions inconsistent with the provision of Articles - 31,32,33, and 35 of the Constitution (of Bangladesh) can be included either in the EPO or in the EPR. As mentioned earlier, if any such inconsistent provision is found or added therein, the High Court can declare those as Void in terms of the Constitution. Thus the provisions of Rules 19Gha, 10(2) and 11 of the EPR so far relates to bail, are bad and void.
In accordance with the provisions of Article 26(2) of Constitution of Bangladesh, no law can be made inconsistent with the provisions of the fundamental rights, detailed in Part III of the Constitution, and subject to restrictions mentioned in Article 141B thereof during the Emergency, and accordingly the provisions relating to "denial of bail" as appearing in Rules -19Gha, 10(2) and 11 of the EPR are void. Therefore, the power of the Court relating to granting of bail under Sections 497 and 498 of the CrPC remained unaltered and unaffected and that Emergency did not affect the existing power and authority of any Court of law relating to trial of case and or bail.
In my view, the existing right or benefit of the people can only be altered or affected through enactment of a law consistent with the provisions of the Articles contained in Part III of the Constitution and that a law can be made by the Parliament, when in session, otherwise by the Honourable President promulgating Ordinance under the authority of Article 93 of the Constitution.
The EPO was not empowered to formulate any rule that can cover incidents that took place before the declaration of the state of emergency. The ordinance thus does not permit bringing any offence committed before January 11, 2007--the day the state of emergency was declared--under the EPR.
Therefore, "Considering the preamble of the Constitution as well as the provisions of Article 26" the Honourable judges declared illegal a government sanction to try an extortion case against detained former Prime Minister Sheikh Hasina under the Emergency Power Rules (EPR) and quashed the trial proceedings, and had ruled that the High Court can grant bail even to those convicted in the cases under the EPR.
In their judgment, the honourable judges also held that, "…no law or rule or any provision can be made during the Emergency curbing or curtailing the authority and power of the Supreme Court of Bangladesh, subject to the restrictions imposed by the Articles 141 B and 141 C and that during Emergency period no law or rule can be framed inconsistent with provision of Articles 27 to 35 and as well as any existing law and the orders passed by the Judges of the Supreme Court….".
The Honourable judges further held that, "The provisions negating the authority of the Court to grant bail under Rules -19 Gha, 10(2), 11 and 15 Gha of the EPR, being inconsistent with the provisions of Articles 31, 32, 33 and 35 of the Constitution as well as Sections- 426, 496, 497 and 498 of CrPC, are void and the power and authority of the Court under sections 426, 496, 497 and 498 of the Code of Criminal Procedure relating to granting of bail has not been affected or infringed by said Rules-19Gha, 10(2), 11 and 15Gha of the EPR. Further no penalty or sentence can be imposed by any Rule of the EPR, framed under the authority of EPO. Since the Rules-3, 4, 5, 6, 7, 8 and 15Gha of the Rules, 2007 are inconsistent with the existing law as well the provisions of Articles 27 to 35 of the Constitution said Rules to the extent of the inconsistency for containing the provisions of penalty and sentence are void as per Article 26(2) of the Constitution. Since in the Rule the impugned sanction is under challenge and we have found that the impugned sanction has been given without lawful authority, for non-fulfillment of the conditions-precedent set out in Rule-19Nyanh (4) and the alleged offence having been committed prior to the promulgation of Emergency, the instant case initiated under the Emergency Power Rules 2007 is illegal, without lawful authority and cannot be proceeded with further. In fine it is held that, "any case arising out of an offence committed prior to the date of promulgation of the Emergency i.e. 11.01.2007 cannot be tried under the Emergency Power Rules, 2007".
However, while we are pleased that offences allegedly committed before the declaration of emergency will not be tried under emergency rules, we nonetheless want there to be thorough investigations into allegations of corruption and abuse of power by politicians, businessmen, public servants and whomever else against whom such allegations exist. We also want there to be proper trials under the ordinary laws of the land of those against whom the government finds evidence of wrongdoing.
In view of the above discussion, it is evident that the provisions regarding denial of bails contained in the EPO violated the fundamental rights granted by the Constitution to the citizens of Bangladesh. When the rights of a citizen are riddled with question, it is the judges' responsibility to protect those rights by applying the constitutional provisions with a view to establish the rule of law. We are not sure whether the High Court bench is right in quashing the case against the former Prime Minister Sheikh Hasina altogether and hope that the Appellate Division will give a direction in this matter and allow for proper trials of those against whom the government has real evidence of corruption and crime under the ordinary laws of the land and in accordance with the due process of law.
(The writer is a Barrister of the Honourable Society of Lincoln's Inn. He is working as a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm. He is also an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk).