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KALEIDOSCOPE

Why the need for a new law?

Syed Fattahul Aum
The call for framing a new law for the single agenda of making the ongoing trial of those who committed crimes against humanity in 1971 throws open the doors to a wide range of interpretation of the term obstruction***
Member S of the Jatiya
Sangsad (JS) or national parliament are known as lawmakers. So, by definition their main function in the JS is to frame laws. One is, therefore, hardly surprised when last Thursday February 16,2012 the lawmakers of the ruling Awami League (AL) in a motion resolved that those who are out to obstruct the trial of war criminals should be punished by the government. To this end, they passed a motion in the JS so that the resolution thus adopted may pave the way for enactment of a law.
Now, the question is was the call of the JS to enact such a law absolutely necessary, or is the task of a lawmaker only to make new laws, even if there are already other laws to deal with the particular type of issues under consideration?
Before a law is enacted either in parliament or through an executive fiat, the general practice is to ensure that the need for creating the new law does really exist in society. Lawmakers who represent the people then materialise that felt-need of the people through its enactment into a law in the JS.
In a civilised society, the members of the intelligentsia, the civil society groups and particularly people engaged in legal profession and sometimes the wider community get involved in discussions and debates on the merits, demerits and the rationales for introducing a new law.
We are not aware if such discussions or debates among the different crosssections of the community, the intelligentsia or even the lawmakers themselves were ever held prior to the passage of the proposal in parliament. Instead of an enlightened discussion or debate, what the nation watched was something rather strange happening once the subject was raised in the JS by a lawmaker. The lawmakers of the Treasury Bench were not as much persuasive or reasonable as they were passionate. In fact, they supported the motion with an unprecedented vehemence so much so that even Quamrul Islam, the state minister for law, who is known for his otherwise hard-line stance on other issues, had to retreat from his earlier position that the government would soon take action against such detractors or creators of hindrance to trial of war criminals "under the existing laws."
The brute majority and their force of passion got the better of reasoned deliberations and debates.
The next day the Law Minister Shafique Ahmed supported the call for enacting a tougher law to take action against what he said such quarters as were obstructing the trial or making it questionable without any reason or basis. Paradoxically, he also said in the same breath, "Obstruction can't stop war crimes trial."
If the government is so confident that no obstruction can stop the trial, then why are the lawmakers so impatient to have yet another law in addition to the existing laws to punish the " obstructionists"?
The call for framing a new law for the single agenda of making the ongoing trial of those who committed crimes against humanity in 1971 throws open the doors to a wide range of interpretation of the term obstruction. The opposition has already started to interpret the move to frame such a law as a tool to stifle its democratic movements, especially their March 12's political programme in Dhaka. Apart from the opposition BNP's anxiety about the prospect of making such a law, there is reason for concern among the common people. Because they have earlier experience of what happens whenever a law with discretionary power is handed to the administration.
There was not a single party in opposition who were not highly critical of the Special Powers Act, 1974 (Act XIV of 1974). According to Banglapedia, the law was promulgated on 9 February, 1974 providing special measures for prevention of certain prejudicial activities and for conducting speedier trial and effective punishment for certain grave offences.
Though originally the law was enacted by the then-Awami League government, under the changed circumstance afterwards, the party itself became a victim of this law at the hands of the latter-day governments when this party was in opposition.
Then it became a fashion for every party in opposition during the successive governments to oppose the law, but use it unabashedly once the erstwhile critic was in power. Unfortunately, the law became a convenient tool of political repression in the hands of the powers-that-be.
Any arbitrary power is always a dangerous tool at the hands of the administration, even if it is a democratic one. There are a hundred and one instances in history how such discretionary authority had often been abused by those in power. So, the present move to frame the law in question, however urgent it may appear to the government of the day, may also be amenable to abuse by the parties to come to power in the future. How often the road to hell has been paved with the best of intentions!
Let us take the liberty to revisit what the 18th century French political philosopher Jean Jacque Rousseau (1712-1778) said about laws in general: "Good laws lead to the making of better ones; bad ones bring about worse."
We hope the incumbent government would have a rethink before it goes for enacting this particular or any other law in the light of what the founding fathers of modem state and its laws said long ago on the subject.
The writer is Editor, Science & Life, The Daily Star. E-mail: sfalim.ds@gmail.com