(The writer was a third year law student of Dhaka University)
The present Awami League -led government after assuming power decided to review cases filed against politicians and others with ‘political motives’ during the tenures of the last BNP-led four-party alliance and the subsequent caretaker governments. Later, an inter-ministerial committee and committees in each district were formed to carry out the process of review. The home ministry invited applications for cancellation of the cases in February and the deadlines for submitting applications were extended three times up to July 12. A total of 5,677 political leaders of different parties, business leaders and former bureaucrats of the country have applied to the government seeking withdrawal of the ‘politically motivated’ cases filed against them.
The district committees formed across the country to receive appeals for withdrawal of ‘politically motivated’ cases selected 4,433 such cases so far for review, 1,137 of which were placed before the review committee. An inter-ministerial committee chaired by State Minister for Law Qamrul Islam for reviewing ‘politically motivated’ cases so far recommended the withdrawals of total 455 criminal cases for quashing after its sixth meeting on 26 August. Out of 455 criminal cases, all cases were filed against Awami Legue or its alliance leaders except one was filed against formal law minister and BNP leader Moudud Ahmed.
The recent case withdraw culture by the executive order already made mistrust to the govt. and the people are loosing their faith on rule of law.
Executive power to withdraw cases:
A Public Prosecutor (PP) can seek withdrawal of the prosecution only when instructed in writings by the government. The PP is empowered for such power under section 494 of the Code of Criminal Procedure, 1898. Section 494 says, Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in any respect of any one or more of the offences for which is tried; and upon such withdrawal,–
- if he is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
- if it is made after a charge has been framed, or when under the Code no charge is required, he shall be acquitted in respect of such offence or offences.
The every term of law need to be defined for ensuring rule of law and justice. For that reason, in law, everything is defined. But there isn’t definition of ‘politically-motivated’ case or case filed for ‘political harassment’. So there are lots of chances to use it as only ‘political consideration’ and the present govt. is doing so.
Withdraw of cases and our Constitution:
Article 26 and 27 of the Constitution of Bangladesh provide equality before law and equal protection of law. We need to examine the provision of Article 27 as to whether this provision of the Constitution gives any exemption to the political activities or not. In this regard, Article 27 ensures equality before law by providing that all citizens are equal before law and are entitled to equal protection of law. So, it is evident that the political activities or leaders are no exemption to Article 27. Rather the withdrawal of cases under section 494 of the Code of Criminal Procedure is inconsistent with the sprite of the Article 27.
Interference with independence of judiciary and rule of law:
Independence of judiciary means that the judges are in a position to render justice in accordance with their own sense of justice without any kind of pressure or influence from executive or legislative or from any other parties themselves or from the superiors and colleagues. The government can only submit application for withdraw before Court through Public Prosecutor. It needs to the consent of the Court. But ready acceptance of the government’s recommendation to withdraw cases creates an indirect interference. If the govt. pressurizes the courts, it will the same as to interference in dispensation of justice. Violation of independence of judiciary will have serious repercussions that can endanger the smooth functioning of democracy.
Rule of law conveys that no man is above law. From this aspect of rule of law, it can be said that the withdrawal of undefined ‘politically-motivated’ cases specially on subjective satisfaction of the government machinery, is deplorably inconsistent with the concept of rule of law.
Alternative remedies in existing laws:
There are many other alternative remedies available for the persons accused in groundless, false, frivolous, vexatious criminal cases.
(a) Remedies before the pronouncement of judgment: if the allegation is groundless, the court will discharge the accused under section 241A of the Code of Criminal Procedure. If the offence is triable by the Session Court under section 195 of the Code of Criminal Procedure, 1898 then there is also a chance of discharging the accused, if the Court considers the charge as groundless under section 265C. Sections 245 and 265H of the same Code says that the Magistrate and the Session Court respectively shall record an order of acquittal, if he finds that the accused not guilty. Section 248 of the same Code provides provision for the withdrawal of complaint by the complainant also.
(b) Remedies after the pronouncement of judge: there are provisions for the govt. to suspend or remit sentences after the judgment. There are also provisions regarding the compensation as well as imprisonment (in case of default of compensation) of the complainant under section 250 of the Code of Criminal Procedure, 1898 as well as under section 211 of the Penal Code, 1860. Section 250 of the Code of Criminal Procedure prescribe actions that can be taken against the false, frivolous or vexatious accusations and the Magistrate may direct that the compensation to such amount not exceeding one thousand taka or if the Magistrate is a Magistrate of the third class not exceeding five hundred taka, as he may determine be paid by such complainant or informant to the accused or to each or any of them. Not only that but also the Magistrate may, in default of payment, direct the person ordered to pay such compensation shall suffer simple imprisonment for a period not exceeding thirty days.
All those remedies are available in existing laws to solve the false or groundless case in judiciary. Now the question is why this system is practicing by the govt. outside of judiciary? The answer may be the political one. An undefined term ‘politically-motivate’ is practicing definitely in ‘political consideration’ by the present government. Only the ruling parties’ leaders are getting free from ‘politically-motivated’ cases not BNP, Jamat or any other political parties’ leaders.
Solving the criminal cases outside the judiciary need to be stopped and the issue needs to be reconsidered.
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