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Thursday, January 16, 2014

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Seminal decisions by Justice Muhammad Habibur Rahman

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dhAkA TRibuNe

MD Monir n

uhammad Habibur Rahman, a former chief justice of Bangladesh and the chief advisor of the non-party caretaker government in 1996, was educated in Dhaka and Oxford. He was called to the Bar from Lincolns

Inn in 1959. He served as a judge of the High Court Division (197685), as a judge of the Appellate Division of the Supreme Court (1985-95), as an acting chief justice (1990-91) and as chief justice of Bangladesh (1995). His juristic competence is demonstrated in his opinions and interpretations as pronounced in many Bangladesh Supreme Courts decisions concerning vital issues such as admiralty jurisdiction, amendment of the constitution, citizenship, habeas corpus, administrative tribunals and court jurisdictions. The renowned personality breathed his last on Saturday, January 11 this year. Let us look into some of his celebrated decisions delivered as a judge for the Supreme Court of Bangladesh. Anwar Hossain Chowdhury v Bangladesh The case was about the legality of the famous Eighth Amendment of the constitution of Bangladesh. The constitution (Eighth Amendment) Act, 1988, was passed amending article 100 of the constitution by setting up Permanent Benches of the High Court Division outside the capital city Dhaka. The amendment was challenged by two writ petitions on the ground that the High Court division of the Supreme Court, with judicial power over the republic, is a basic structure of the constitution and cannot be altered or damaged, and therefore the impugned amendment is void. A division Bench of the High Court Division summarily dismissed the said two writ petitions. Leave was granted by the Appellate Division.

In his judgment as a judge at the Appellate Division, Justice Habibur Rahman opined: The validity of an amendment will be examined on the touchstone of the preamble. In the judgment, he stated that one of the fundamental aims of our society is to secure rule of law for all citizens. The parliament cannot by itself amend the preamble. It cannot indirectly, by amending a provision of the constitution, impair or destroy the fundamental aim of our society. It is contended that the impugned amendment had destroyed a basic feature of the constitution by damaging the integrity and oneness of the High Court Division, an integral part of the Supreme Court of Bangladesh, he added. Finally the Constitution (Eighth Amendment) Act was declared null and void by the Supreme Court of Bangladesh. Bangladesh v Prof Ghulam Azam This is another landmark judgment delivered by Justice Habibur Rahman that clarifies quite a lot about citizenship rights. A writ petition was filed under Article 102 (2) (a) of the Constitution before the High Court Division of the Supreme Court of Bangladesh, challenging the legality of a government notification by which the citizenship of Prof Ghulam Azam was cancelled. In this case, Justice Muhammad Habibur Rahman provided a meticulous account of the law and delivered a bold judgment without being influenced by fear or favour. In his judgment, he said: Citizenship, though not mentioned as a fundamental right in our constitution, is to be considered as the right of all rights as on it depends ones right to fundamental rights expressly provided for a citizenship in Part III of the Constitution, and his right to seek the Courts protection of those rights. Citizenship is neither conferred by giving a passport nor is it acquired by receiving a passport. A passport is not regarded a conclusive evidence of the citizenship or the nationality of its holder.

Hussain Hohammad Ershad v State The case involved a question of whether a criminal proceeding can be quashed on the ground of lodging a FIR by the informant under order of the home ministry or on the denial of prosecution allegations by the accused. Justice Habibur Rahman put forward the following arguments in favour of his judgement delivered in that case: It is contended that the arms seized were in the possession and control of the petitioner in his capacity as President and hence in view of Article 52 (1) of the Constitution there is a complete bar against any criminal prosecution against the petitioner. We find no substance in this contention. Immunity is available to the president while he is in office. With regard to the alleged amnesty, no paper was produced before the High Court Division. No paper in this regard has been placed before us either, whether the arms in question were surrendered in response to the amnesty or recovered by law enforcement agencies is a question of fact and can only be decided at the trial. With regard to the petitioners contention that he is entitled to keep the seized arms as a former president of the country, all emphasis has been laid on the size of the bore of the pistols. The question whether the seized arms satisfy the requirements for an exemption, as laid down in Table 1 of Schedule 1 to the Arms Rules, 1924, should better be left for decision to the trial judge who will have the benefit of the opinion of the arms expert, cited as a witness in the charge -sheet, and not in this summary proceeding under section 561A of the Code of Criminal Procedure. Justice Muhammad Habibur Rahman will be remembered by the legal fraternity for his immense contribution as a member of both the Bar and the Bench. l The writer is a Research Assistant at Bangladesh Institute of Law and International Affairs (BILIA).

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Do we really believe in the notion of equality before the law?

An observation in light of the two contemporary death-sentences Ashiqul A Khan n

ecently a Dhaka trial court sentenced eight activists to death and 13 others to life sentences in connection to the killing of Bishwajit Das last year. Unsurprisingly, this turned out to be sensational news since the general members of the public have eagerly awaited knowledge about the verdict. The eight accused individuals are to walk the gallows for killing an individual and yet, apparently, the general members of the public perceive that due process has not been interfered with by the government and that justice has been done. It is to be noted that this case was tried in the speedy trial tribunal and was completed within a period of just over a year since the incident had occurred. The defence lawyers rejected the verdict, as per their right. There was no fuss regarding impartiality, procedural fairness or sternness of the punishment from any faction of the people nor was there any concern about human rights being violated, that any of the accused to be hanged may be entitled to. Newspapers even reported that people demanded the immediate execution of the verdict. It would be hard to find someone who would not find death to be the fairest punishment for such a heinous act. Anyone willing to advocate on abolishing the death penalty would find it very difficult to gain any support at all from the ordinary citizens of our country, as far as Bishwajits murder is concerned. It comes as a great shock to consider, in hindsight, the discussions that took place regarding the execution of the infamous Quader Molla for his horrifying acts during the Liberation War. The execution of the death sentence suddenly turned to be of great concern, not only for human rights activists but also for general members of the public. Discussions regarding the justifiability of the death penalty were put forward by a group of professionals, including lawyers and journalists. Surprisingly, a large number of people even echoed the request of the international human

rights organisations for abolishing capital punishment, at least in case of Quader Molla. The logical question arises: Do we, the ordinary citizens, really even want to be treated equally by law, let alone the notion to be put to practice? The criminal Justice system plays a crucial role in main-

taining law and order sures are present in though they vary to due to differences in and social structures.

and upholding the same. Penal meaall jurisdictions across the globe alsome extent from country-to-country the legal traditions, economic realities The demand for abolishing capital

punishment on humanitarian grounds should not be rejected; rather, such a higher standard of rights is something to aspire to for every developing nation. These differences of opinion regarding the penal measures do not interfere with the objective of establishing the rule of law. Equality before the law is fundamental to the notion of rule of law, and before we can fight for the enforcement of our right to be treated equally, we must firmly believe in our right to be treated equally before the law. Our constitution protects this right clearly. An individual has every right to advocate his conviction, but advocacy for different treatment by the system based upon the political, social, economic, religious or ethnic identity should in no way be supported. Such dubious mentality will only make us more susceptible to unequal and unfair treatment by the government. Let us not be divided on issues of politics in such a manner that we give up our rights to pleasing those who have created a false impression of being superior. Culprits should be punished in the same manner for the same misdeed, irrespective of their political, social, economic, religious or ethnic identities. It would be unwise to assume that these propositions stated above are based on an autocratic mindset that forbids one to question the fairness or legitimacy of any act of the government or the judiciary. One does have the right to question the non-enforcement of rules and non-compliance with procedural fairness, but that should not pave the way for inconsistent stipulations, especially by those who are perceived as a source of insight into delicate matters by the general mass. A rule of law will never be established unless we all start believing in the fundamental notions that it is based upon. Let us develop a mentality for resenting every instance that violates the notion of equality before the law and it will eventually result in the system treating us all equally. l The writer is an Associate at Legacy Legal Corporate. www. legacylegalcorporate.com.

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