Staff Correspondent
The legality of the Truth and Accountability Commission, formed on July 30 to let people voluntarily admit to their corruption and get mercy depositing ill-gotten wealth to the state exchequer, was challenged in the High Court on Monday.
Supreme Court lawyer Adilur Rahman Khan, women’s organisation Nari Grantha Probartana executive director Farida Akhter, physician-turned-politician Dipu Moni and rights organisation Odhikar’s acting director ASM Nasiruddin Elan filed a writ petition challenging the constitutionality of the Voluntary Disclosure Ordinance 2008, under which the commission was set up.
The petitioners sought a stay order on the functioning of the commission as an interim measure and finally cancellation of the ordinance and termination of the commission.
The High Court bench of Justice Khademul Islam Chowdhury and Justice Mashuque Hossain Ahmed posted the hearing of the petition, moved by the petitioners’ counsel Taufique Newaz and Asaduzzaman, for today.
The preamble and some other clauses of the ordinance said the government had promulgated the ordinance [on June 5] to ‘remove corruption’ by means other than criminal trial and to reduce the burden of trials upon the state.
The writ petition said that the objective of the ordinance was contrary to the constitutional provisions.
According to the constitution, an alleged offender can be handed punishment after a fair trial by a competent court or tribunal and there can be no alternative to the courts or tribunals for holding trial of a criminal offence, the petition said.
The commission set up under the ordinance is neither a court nor a tribunal established by any law, the petition stated adding, ‘Even the Supreme Court has ceased to have its supervisory authority, granted by the constitution, over the decision of the commission.’
The petition said that the ordinance was made in violation of the constitutional provision of ‘equality before law’, as the ordinance empowered the commission to pick and choose the graft suspects for awarding its mercy.
Discrimination against individuals is contrary to the article 27 of the constitution that guarantees equal rights before law, the petition pointed out.
The ordinance empowers the commission to order confiscation of money commensurate to the amount earned illegally and such confiscation results in barring the person concerned from contesting election to a public office or companies, the petition said adding, ‘This is, for all purposes, a conviction and sentence and such authority to punish a person by the commission is inconsistent with constitutional provisions for trying an offender by a court of law.’
Section 29 of the ordinance says that the commission can seek assistance of the judiciary in consultation with the Supreme Court and the judiciary is under legal obligations to assist the commission.
Referring to the section, the petition said that it was against the basic structure of our constitution as an independent judiciary was to ensure a fair trial and not to follow the instruction of or to assist any statutory body.
According to the constitution, an ordinance requires to be placed in the immediate next session of parliament, while the Voluntary Disclosure Ordinance has been made and the commission launched for a five-month period and that will expire before the next general elections.
The ordinance and the commission are ‘illegal’, as the ordinance cannot be placed before parliament for ratification, the petition said.
The petition also challenged the authority of the interim government to promulgate such an ordinance, as it had provisions relating to policy decisions of the government beyond the jurisdiction of a caretaker government and the ordinance was neither related to holding of elections nor to the regular functioning of the government.
Source: New Age (Bangladesh) on 26 August,2008.
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August 27, 2008 at 2:16 pm
zahidulislambiswas
August 27, 2008
A Statement by the Asian Human Rights Commission
BANGLADESH:
Rights group challenges legality of Truth Commission in High Court
A Bangladeshi rights group has challenged the legality of the Truth and Accountability Commission at the High Court Division of the Supreme Court of Bangladesh, local media reported yesterday.
According to the reports published in the New Age, Dhaka-based English daily on August 25, the military-controlled government formed the Truth and Accountability Commission on 30 July 2008. The idea behind the Commission is to provide a forum in which people may voluntarily admit to acts of corruption and receive mercy by depositing their ill-gotten wealth in the state exchequer. The General Secretary of the local human rights organization, ODHIKAR, Mr. Adilur Rahman Khan, a lawyer of the Supreme Court Bar, acting Director Mr. ASM Nasir Uddin Elan, Ms. Farida Akhter, Executive Director of UBINIG, a rights NGO, and Dr. Dipu Moni, a political leader, jointly lodged a writ petition with the High Court Division challenging the Truth and Accountability Commission, which was created under the Voluntary Disclosure Ordinance – 2008.
In the writ the petitioners reportedly argued that the preamble and other clauses of the ordinance said that the government had promulgated the ordinance to “remove corruption” by means other than criminal trial and to reduce the burden of the trials upon the state. The objective of the ordinance is contrary to the constitutional provisions that assert fair trial of an alleged offender by a competent court or tribunal and there can be no alternative to the courts or tribunals for holding a trial for a criminal offence. The petition also said that the Commission set up under the ordinance is neither a court nor a tribunal established by any law, and even the Supreme Court has ceased to have its supervisory authority, granted by the constitution, over the decision of the Commission. The ordinance was made in violation of the constitutional provision on “equality before law” enshrined in Article 27 as the ordinance empowered the Commission to pick and choose the graft suspects worthy of being granted mercy.
In referring to the Commission’s authority to order the confiscation of money commensurate to the amount earned illegally the writ points out that such confiscation results in the barring of the person concerned from contesting election to a public office or companies. The petition further states that this is, for all purposes, a conviction and sentence and such authority to punish a person by the Commission is inconsistent with the constitutional provisions for trying an offender by a court of law. The petition also argued that the Commission, as per Section 29 of the ordinance, can seek the assistance of the judiciary in consultation with the Supreme Court and that the judiciary is under legal obligation to assist it. However, the constitution asserts the independence of the judiciary aiming to ensure fair trial and not to follow the instruction of or to assist any statutory body. The petition also said that, in order to be constitutionally valid, an ordinance is required to be placed in the immediate next session of parliament. The Voluntary Disclosure Ordinance has been made and the Commission launched for a five-month period and that will expire before the next general election, as proposed by the country’s Election Commission. In light of this the ordinance and the Commission are termed “illegal” in the petition, as the ordinance cannot be placed before any session of the parliament for ratification.
The petition also challenged the authority of the interim government to promulgate such an ordinance, as it had provisions relating to policy decisions of the government beyond the jurisdiction of a caretaker government.
The Asian Human Rights Commission (AHRC) welcomes the legal battle initiated by the rights activists of Bangladesh challenging the authority of the military controlled interim caretaker government beyond its constitutional jurisdiction. The AHRC recalls that a High Court Bench also passed a verdict declaring the promulgation of an ordinance irrelevant to the issues relating to the general election is ultra vires and unconstitutional on 13 July 2008. However, the verdict was stayed by the Appellate Division of the Supreme Court following an appeal lodged by the government.
The AHRC condemns any unconstitutional exercise of power by the government of Bangladesh and urges the concerned professionals, especially the lawyers, human rights defenders and the civil society members to fight such practices in the country.
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About AHRC:
The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.