It is being claimed that Joint Drive Indemnity Ordinance-2003 has clearly violated Articles 31, 32 and 35 of the Constitution, as it provides for that no one can seek justice and no complain can be lodged against any person involved with the joint drive for any arrest, death, torture, violation of rights. It also provides that no compensation can be made for any damages of physical or mental or financial nature and if any cases or proceedings are filed in any court regarding any act done during the joint drive it will automatically be cancelled.
The Govt. is boastfully resisting that the ordinance is not unconstitutional as it is promulgated as per provision of Article 46 of the Constitution. It claimed that the ordinance is not violating any fundamental rights since all fundamental rights are not same valued or unrestricted. It argued that without violating the Constitution some restrictions can be imposed or some fundamental rights can be snatched away for the maintenance or restoration of order, or for the greater interest of the country and so on.
Thus, the interpretation of the Constitution seems very tough as well as ambiguous. I find strong reasons both in the supportive and contradictory statements regarding the Ordinance. I postulate both the pros and cons are beyond rebuttal. Hence, I wonder in which principle the govt. believes? Is it the principle of 'rule according to law' or 'rule of law'?
'Rule according to law' means administration through the help of law, be it rational or irrational. In this respect it is enough that the law has been passed by the parliament, or has been enacted following a procedure. This type of rule is, in a word, legal; how much damnable or immoral is immaterial. (As a matter of fact, 'rule according of law' is not any doctrine, though it has been followed in ages. Our govt. has now been the exponent of the doctrine.)
On the other hand, 'rule of law', according to Dicey, includes three things -- (i) absence of arbitrary power i.e. no man is above the law and the person in authority do not enjoy wide, arbitrary or discretionary powers. (ii) Equality before law i.e. every man, whatever his rank or position, is subject to ordinary laws and the jurisdiction of ordinary courts. And (iii) individual liberties. In Bachan Singh V Punjab (AIR 1982 SC, 1325, 1337) it is observed, 'Law in the context of the rule of law does not mean any law enacted by the legislative authorities ... What is a necessary element of the rule of law is that the law must not be arbitrary or irrational..." Rule of law, therefore, demands not only that the powers exercised by the State authorities must have a legal basis, but also that the law should conform to certain minimum standards of justice; it should be fair and reasonable, not capricious.
The Operation Clean Heart has taken, so far been claimed not less than 44 lives. Hence, indemnifying joint force's activities, how is the govt. serving the countrymen? Apparently the govt. follows the doctrine "rule according to the law".
Zahid Biswas,
LL.B (Hons), 4th year, Dhaka University.
* * * * *
In every civilised society people are entitled to seek justice . As per our constitution, any misdeed is triable by law. This is a prerequisite to human
rights. And human rights are the indispensable norms in a democratic society. Violation of human rights is a flagrant threat to the ethics of democracy.
Recently government infringed the fundamental rights of the people, seeking justice against the misdeeds, in an unprecedented manner. They indemnified all the tyranny, the army inflicted during their operation clean heart. There might be extenuating circumstance, when it comes to torturing the criminals mercilessly, although law says "no one will be punished unheard".
An international magazine defended the army drive by saying " sacrificing human rights may be necessary for safety of the majority". But the rights of the people of enforcing their complaints cannot be snatched in a country like Bangladesh. The democratically elected government put the country in an embarrassing position. The people all over the world now know,
Bangladesh is a country where accused are beaten to death in custody, and their near and dear ones can not enjoy the rights even of filing the case.
Following the promulgation of this ordinance, a wave of resentment and indignation has been prevailing among the conscious people. All the distinguished lawyers termed this ordinance as a violation of constitution. It is the duty of our lawyers to fight for rendering this ordinance void through legal procedure.
Imran Ahmed
Mohammadpur, Dhaka.