HC declares truth commission illegal
Friday, 14 November 2008
The Truth and Accountability Commission (TAC) constituted to show mercy to penitent corrupt under the current purge lost its existence as the High Court (HC) Thursday declared illegal the Voluntary Disclosure of Information Ordinance on which the TAC was founded, reports UNB.
A division bench comprising Justice Mir Hasmat Ali and Justice Shamim Hasnain delivered the judgment upon a public interest litigation (PIL) writ petition that challenged the validity of the much-talked-about Ordinance and its Commission.
The High Court in its ruling didn't give validity to the TAC function so far done in granting clemency to the corrupt in exchange for their ill-gotten wealth, a counsel for the writ petitioners told reporters.
The HC bench in its observation said the Ordinance had been promulgated beyond the scope of the Constitution, deviating from the object of the rule of law.
"If such kind of Commission is allowed to continue, the executive authority of the government will make the judiciary a non-functional body only to assist the particular body, which is against the basic structure of the Constitution," the court further said declaring illegal the founding of TAC.
It referred to the article 112 of the Constitution that says: "All authorities, executive and judicial, in the Republic shall act in aid to the Supreme Court."
"The Constitution does not contemplate substitute justice system like the TAC that is being considered an alternative to criminal justice system," the HC observed, adding that any such rule or law could not be incorporated.
The President promulgated the Ordinance, published in the gazette on June 8, and the interim regime constituted the five-month-tenure TAC on July 30 by appointing Justice Habibur Rahman Khan as its chairman and former comptroller and accountant general Asif Ali and Maj Gen (retd) Manzur Rashid Chowdhury as two members.
On August 3, the TAC, the newest institution for dealing with graft charges under the countrywide purge in the interim period, started functioning through receiving clemency petitions from the penitent corrupt persons.
On August 28, the High Court had issued a rule asking the government to explain why the impugned Voluntary Disclosure of Information (Amendment) Ordinance 2008 under which the Truth and Accountability Commission was formed should not be declared "unlawful and ultra vires of the Constitution".
Four Rights activists - advocate Adilur Rahman Khan, Farida Akhter, Dr Dipu Moni and advocate ASM Nasiruddin Elan - filed the PIL writ petition.
The Commission considered the cases of the corrupt who sought mercy voluntarily confessing to their crime of committing corruption, by depositing their ill-gotten wealth with the state exchequer.
Graft suspects could apply to the Commission by September 1 of this year for making voluntary disclosures about their corruption. The deadline was later extended.
The self-confessed corrupt were to be considered ineligible for contesting any national or local elections, for holding any public office or executive position in any collective bargaining agency, association, bank, or financial institution for five years.
Persons willing to voluntarily disclose their ill-gotten wealth were exempted from prosecution and imprisonment, subject to surrendering their illegal property or the corresponding amount of money to the exchequer.
The Ordinance was promulgated in a bid to remove corruption through an alternative justice-system and to reduce the burden of trial upon the state, as a huge number of graft suspects, including top politicians, bureaucrats and business tycoons, were booked under the clean-up drive launched following the 1/11 changeover.
Advocate Tawfique Nawaz, assisted by Asaduzzaman, appeared for the quartet PIL petitioners, while Attorney General Salahuddin Ahmed stood for government.
Meanwhile, the TAC chairman said it is for the government to decide if appeal would be lodged against the verdict.
"I have heard (about the verdict). I didn't see the verdict," he told reporters in the afternoon when his reaction was sought.
Justice Khan declined to make any comment about the High Court verdict.
A division bench comprising Justice Mir Hasmat Ali and Justice Shamim Hasnain delivered the judgment upon a public interest litigation (PIL) writ petition that challenged the validity of the much-talked-about Ordinance and its Commission.
The High Court in its ruling didn't give validity to the TAC function so far done in granting clemency to the corrupt in exchange for their ill-gotten wealth, a counsel for the writ petitioners told reporters.
The HC bench in its observation said the Ordinance had been promulgated beyond the scope of the Constitution, deviating from the object of the rule of law.
"If such kind of Commission is allowed to continue, the executive authority of the government will make the judiciary a non-functional body only to assist the particular body, which is against the basic structure of the Constitution," the court further said declaring illegal the founding of TAC.
It referred to the article 112 of the Constitution that says: "All authorities, executive and judicial, in the Republic shall act in aid to the Supreme Court."
"The Constitution does not contemplate substitute justice system like the TAC that is being considered an alternative to criminal justice system," the HC observed, adding that any such rule or law could not be incorporated.
The President promulgated the Ordinance, published in the gazette on June 8, and the interim regime constituted the five-month-tenure TAC on July 30 by appointing Justice Habibur Rahman Khan as its chairman and former comptroller and accountant general Asif Ali and Maj Gen (retd) Manzur Rashid Chowdhury as two members.
On August 3, the TAC, the newest institution for dealing with graft charges under the countrywide purge in the interim period, started functioning through receiving clemency petitions from the penitent corrupt persons.
On August 28, the High Court had issued a rule asking the government to explain why the impugned Voluntary Disclosure of Information (Amendment) Ordinance 2008 under which the Truth and Accountability Commission was formed should not be declared "unlawful and ultra vires of the Constitution".
Four Rights activists - advocate Adilur Rahman Khan, Farida Akhter, Dr Dipu Moni and advocate ASM Nasiruddin Elan - filed the PIL writ petition.
The Commission considered the cases of the corrupt who sought mercy voluntarily confessing to their crime of committing corruption, by depositing their ill-gotten wealth with the state exchequer.
Graft suspects could apply to the Commission by September 1 of this year for making voluntary disclosures about their corruption. The deadline was later extended.
The self-confessed corrupt were to be considered ineligible for contesting any national or local elections, for holding any public office or executive position in any collective bargaining agency, association, bank, or financial institution for five years.
Persons willing to voluntarily disclose their ill-gotten wealth were exempted from prosecution and imprisonment, subject to surrendering their illegal property or the corresponding amount of money to the exchequer.
The Ordinance was promulgated in a bid to remove corruption through an alternative justice-system and to reduce the burden of trial upon the state, as a huge number of graft suspects, including top politicians, bureaucrats and business tycoons, were booked under the clean-up drive launched following the 1/11 changeover.
Advocate Tawfique Nawaz, assisted by Asaduzzaman, appeared for the quartet PIL petitioners, while Attorney General Salahuddin Ahmed stood for government.
Meanwhile, the TAC chairman said it is for the government to decide if appeal would be lodged against the verdict.
"I have heard (about the verdict). I didn't see the verdict," he told reporters in the afternoon when his reaction was sought.
Justice Khan declined to make any comment about the High Court verdict.