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Why indemnity is not illegal, HC asks govt

STAFF CORRESPONDENT
The High Court yesterday issued a rule on the government to show cause within four weeks why the Joint Drive Indemnity Act, 2003 would not be declared illegal.
On January 9, the government indemnified all the persons for all their acts during the countrywide armed forces-led joint drive against crime, lebelled "Operation Clean Heart," through an ordinance which was finally turned into the Joint Drive Indemnity Act.
The indemnity ordinance had barred people from seeking justice in the court of law for the custodial deaths and violation of human rights during the drive.
A High Court Division Bench of Justice Amirul Kabir Chowdhury and Justice Nizamul Haq gave the ruling yesterday upon a petition filed by a sister of a victim of the Operation Clean
Heart. The victim named Litu -- a poultry businessman in Savar -- was killed during torture by the joint forces on October 28.
Litu's sister Fatema filed the writ petition recently. The respondents of the case include the home secretary, chief of army staff, deputy commissioner of Dhaka, one Major Kabir of the armed forces, in-charge of the joint drive in Savar on October 28 and the officer in charge of the
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Savar Police Station.
On behalf of the government, Additional Attorney General (AAG) Abdur Rezzaq Khan told the court that the joint forces were deployed to improve the law and order after it had severely worsened. He noted that the lawmakers passed the Indemnity Act, considering the realities after overcoming that situation.
The AAG added that the Indemnity Act was framed in the line of Article 46 of the constitution that dealt with indemnity issues. Deputy Attorney General (DAG) Adilur Rahman Khan also defended the government.
On behalf of the petitioner, Barrister Tania Amir argued that the Indemnity Act was against the constitution.
Litu's sister said in the petition that although Article 46 of the constitution gave scope for indemnity, the Indemnity Act itself was inconsistent with the terms and conditions laid out in that article. The constitution guarantees the rule of law and the Indemnity Act had undermined those rights described in articles 27, 31, 32 and 35 (5).
Moreover, the Act violated Article 7-- which is said to contain the spirit of the constitution. So, this act was not tenable, the petition contended.
Besides violating the people's rights, the Act bars the judiciary from carrying out its responsibilities and curtails its authority and freedom.
Barrister Tania Amir told the press Saturday that the petitioner had demanded a compensation of Tk 10
crore. The petition also demanded submission to the court of the order that enabled the joint forces to launch the Operation Clean Heart.
Citing the rationale behind such indemnity, the government said in the ordinance, "It is necessary and pertinent in the interest of the people to indemnify all the persons, including the members of the armed forces and law enforcers, for all the acts done during the joint drive from October 16, 2002 till the working day of January 9, 2003."
And if cases or proceedings were filed in any court regarding any act during the joint drive it would automatically be cancelled, the ordinance said.
This is the second indemnity ordinance the country has had after the infamous Indemnity Ordinance of 1975 that indemnified the persons involved in the killing of Bangabandhu Sheikh Mujibur Rahman, his family members and others on August 15, 1975.
However, the infamous indemnity ordinance of 1975 was later repealed in November 1996 in the parliament.
The government launched the joint drive against crime on October 16 through an order. The joint drive was carried out by members of the armed forces, Bangladesh Rifles (BDR), police and ansars.
During the Operation Clean Heart, 44 people died in custody and hundreds were injured that sparked criticism for the violation of human rights.