Your
Advocate
This
week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
Q:
I am a businessman and tired of extortion and lawlessness. Sometimes
police are found to arrest local mastans and musclemen and put them
into custody. But after some days they are found out of jail being enlarged
on bail. And sometimes it is heard that they are finally released by
court because no evidence could be found against them. I don't understand
how the system is running , where the fault lies. Are those mastans
innocent and the people are making false allegations against them? Or,
allegations are genuine and it is the system that is responsible for
failure to bring the criminals to justice? We as ordinary citizens don't
understand the mechanism but our confidence in courts, police and the
system is badly shattered. I have noticed lawyers taking pride by getting
a top- terror out of jail. Does it make any sense in terms of law and
order of the society? As I understand if the criminals could be arrested
and detained in custody without granting them bail rate of crime would
have reduced to a great extent and law and order also could be restored.
I would like to hear from you from a lawyer's point of view.
Mustafa Amir Sohail,
Chittagong.
Your Advocate: The most crucial aspect of thing here
is your view is representative of the view of the people in general.
We sometimes tend to ignore the views and questions of the lay mind.
But I don't think we can do it without suffering an amount of injury
in our public image. Institutions sustain in the confidence of the people.
Court as an institution must inspire and maintain confidence of the
litigants and general people for whom it exists. So is the case with
the police, lawyers and every other individual involved in the justice
delivery system. It is therefore, not advisable to leave the disturbed
mind unattended.
Your questions taken together has virtually given me a feel of being
in dock as a lawyer directly involved in administration of justice.
Whatever is the technical answer to these spontaneous questions it cannot
be denied that we are suffering in the estimation of the public. Keeping
that in view I will try to address your disturbed mind not by way of
justification but by way of analysis from my point of view as a lawyer.
I must not say I feel happy with every thing that is happening in the
arena of court. But seeing somebody known as mastan or terrorist back
in the locality few days after his arrest is not as much attributable
to flawed investigation and the weak prosecution as to the court or
the defence lawyers. The whole engineering lies in the investigation.
As a lawyer I firmly believe if a case is properly investigated and
tightly prosecuted release by bail or acquittal is bound to take a back
seat even if the most eminent criminal lawyers toil for it. In the present
form and background of our police force better and more effective investigation
is hardly possible. Police must be modernised and adequately equipped
with higher training specially in the field of investigation and with
heightened sense of professionalism. The job of investigation is onerous,
brainstorming and challenging sometimes involving risks. So for good
professionalism of performance society must pay adequately in terms
of salary, allowances and awards. Over and above they must be allowed
to act free from all outside pressure, influence or threat.
As for the court, its public image suffers in most cases for no fault
of itself. Court is vested with power to grant bail in fit circumstances
and acquittal in cases where the charge could not be proved beyond reasonable
doubt. So far as bail is concerned, if by reference to the records of
the case and the documents submitted therewith, it can be shown to the
satisfaction that there is no prima facie case against the accused or
there is reason to believe that the accused is not guilty of the offence
or there is fair chance of acquittal court is rather obligated to grant
bail because it is the mandate of law given in consonance with human
liberty. There is hardly any scope, in the present position of law,
for the court to look beyond records and withhold bail. Court's view
is bound to be dispassionate and free from value judgement. The words
'top-terror', 'mastan', 'godfather' etc. are foreign to the penal clauses.
In these days of declining trend of values and standards I don't mean
to exclude the possibility of extra-judicial influence in every single
case. What I mean to say is- it is difficult for courts to pass apparently
preposterous or indiscreet orders as they are open to scrutiny by the
superior courts. Moreover, judges are not above law. If there are traces
of corruption or bias in judicial dispensation actions lie against them.
Now the question
of lawyers being rejoiced in getting a mastan etc. out on bail. A lawyer
has different entities. In some sphere he is a politician, somewhere
he may be an exponent of crime-control, somewhere he may a speaker against
spread of terrorism but in court he is a professional. It is his training
to vindicate the rights of his client available in law irrespective
of how he (client) is called in the society. It is a part of his soldiering
and thus he can legitimately be happy for the moment.
Corresponding
with the Law Desk, The Daily Star
Please send your mails, queries, and opinions to: Law Desk, 19 Karwan
Bazar, Dhaka-1215; telephone 8124944, 8124955, 8124966; fax 8125155,
8126154; email <dslawdesk@yahoo.co.uk>
