Of bail and bail bandits

June 18, 2016

The independence of the judiciary, respect for the rule of law and respect for fundamental rights are some of the foundations of a democratic society. The more these are abused, the weaker democracy will become, writes Saira Rahman Khan

IN THE past few days there has been a slight flurry in the High Court Division of the Supreme Court regarding instances of the total disregard of its bail orders, by the office of the attorney general. Now, the bail orders are granted by the judges hearing the matter; and as a result, such disregard is tantamount to disrespect of the court and disregard of the rule of law. However, before we discuss this issue, let us take a look at what ‘bail’ actually entails. In simple language, bail is the release of the accused person from the police or jail custody on the promise that he will appear before the court at the given dates set by the said court. Thus, bail is the priviledge of being free instead of incarcerated in police or jail custody. This is not a priviledge enjoyed by all accused persons. According to criminal law, crimes can be bailable or non-bailable. However, in the matter of bailable offences, it has been stated in several judicial decisions in the sub-continent that the right to claim bail is an absolute and indefeasiable right. Article 32 of the consitution of the people’s republic of Bangladesh states that ‘no person shall be deprived of life or personal liberty save in accordance with the law’. Furthermore, under Article 9 (1) of the International Covenant of Civil and Political Rights, ‘everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.’ Thus, if a person is accused of a crime, which the law deems bailable, that person must be allowed the priviledge of being freed on bail according to the legal procedures.

Why is the institution of bail so important? Possibly the most fundamental principle on which our criminal justice system is based on is that a person is presumed innocent until proven guilty. Until a person has been convicted of a crime, beyond reasonable doubt, if the court thinks fit then he should be released on bail and allowed the right to work, to education, to family life, whatever. Many of our criminal laws dealing with bailable offences state that if the court thinks that the accused might not have committed the offence he is charged with and if the accused is not a flight risk, then it may release the latter on bail. Thus, bail is important as it relieves the accused from imprisonment till the person is convictied but still ensures the person’s appearance at trial dates. It also enables the person to sit with his lawyers and prepare the defense whenever the person wants. Most importantly, bail honours the presumption of innocence untill the accused person’s guilt has been proved beyond reasonable doubt. Bail, in some cases, and in some non-bailable offences, may be awarded by the discretion of the court. However, the accused must then file a petition for bail. This gives the prosecution the opportunity to prove through evidence that the accused person’s guilt is strong. If that is the case, bail may not be granted. If the prosecution’s arguments are weak, the court might consider the granting of bail. Article 9(3) of the International Covenant on Civil and Political Rights makes it clear that if a person has been accused of a crime and has been detained, ‘it shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any stage of the judicial proceedings and should occasion arise, for execution of judgment.’ The right to be free on bail is recognised as a basic human right.

Bail as a basic human right has become somewhat of a myth in Bangladesh because of the evils of corrupt and confrontational politics. Denial of bail by the lower courts is a way to keep the opposition and dissenters in jail for months on end. If they are granted bail by some oversight of the court, then the police will be lurking in the corridors of the court to pounce in with another chargesheet for another offence, whereupon the accused is once again remanded or sent to jail custody. There are more than several politicians, activists and prisoners of conscience languishing in jail without trial because of such ‘tricks’. Another partisan practice of manipulation is the interference of the office of the attorney general when the High Court Division grants bail to an accused.

A report on Bangladesh by data and information portal, GlobalSecurity states, ‘The courts granted bail to almost all the officials and former officials accused of corruption under the caretaker government; however, the system sometimes moved slower in cases that carried political implications. Additionally the attorney general ordered that his office have the final decision on bail cases, in violation of the Code of Criminal Procedure. Arbitrary and lengthy pretrial detention continued to be a problem. There were an estimated two million pending civil and criminal cases. A 2008 estimate from the International Center for Prison Studies found nearly 70 per cent of prison inmated were in pretrial detention.’ This is not a mere statement. There are many, many real-life examples of the intereference of the office of the attorney general and the barring of bail orders from reaching the accused. Bail is ordered by the High Court Division of the Supreme Court of Bangladesh. Manipulating and barring this disrespects and dishonours the court. Even worse, because the bail does not reach the accused and the person is not freed, this is tantamount to an illegal detention.

This brings us to the events of recent days. On May 8, 2016, a bench of the High Court Division of the Supreme Court issued bail orders for three men incarcerated in Kashimpur Jail 1, who were accused of money laundering. They were granted six months’ freedom on bail. On May 16, a notable long period, their bail bonds reached the jail, but they were not released immediately as required by law. Instead, Sufia Khatun, and advocate-on-record for the office of the attorney general, faxed the jail authorities telling them that the men must not be released as she had been instructed by the attorney general’s office to file an appeal against the High Court’s bail order and would do so as soon as she received a copy. Sufia Khatun has become somewhat of a willing scapegoat for the attorney general’s office in this regard and her name comes up often as the main player in this ‘game’. The men were under illegal detention for 21 days after their bail orders had been issued by the court. The matter was brought to the attention of the same bench that awarded the bail orders and the judges, Justice Farid Ahammad and Justice KM Kamrul Kader told the deputy attorney general present that there was no scope for the jail authorities to continue the detention of anyone after they had been granted bail. The court also told the the deputy attorney general that that there was no scope for an advocate-on-record to ask the prison authorities to stop the release of detained persons unless and until the bails granted by the HC were stayed by the Appellate Division. A few weeks later, on June 9, the jail superintendent of the Dhaka Central Jail and the Kashimpur Central Jail 1 were summoned before the bench and were given three days to submit a written explanation regarding on what authority they detained three persons for 21 days after their bail had been ordered. As for Sufia Khatun, she was ordered to submit a written explanation regarding on what authority she issued a lawyer’s certificate to the jail authority stating she was under the instructions of the attorney general’s office to file a petition to seek a stay on the bails and to explain under what authority she had instructed the Kashimpur Central Jail 1 not to release the three accused men after they had been granted bail.

The stopping of the delivery of bail orders to give the attorney general’s office the space to appeal by ensuring the detained person stays in jail is a weapon aimed at anyone in the government’s disfavour. In December 2015, a man and his son, Mohammad Saleh Ahmed and Mohammad Saidul Ahmed, were picked up and detained in the Pallabi police station where they are reported to have been tortured in custody for bribes. They were later implicated as accused persons in cases under the Special Powers Act and the Explosive Substances Act. They were then produced before the court and tortured in police remand. After their remand period, they were sent to jail custody by the magistrate, who rejected their petition for bail. They appealed, but again their bail petition was rejected. After four months, their writ petition seeking bail was heard in the High Court, which granted the man and his son bail. The bail order reached the prison after six days, but on that very day, the attorney general’s office ensured that the men were not released by getting another advocate-on-record to issue a certificate stating that the government would be appealing against the bail order. The men were illegally detained in prison. The appeal took two weeks to be heard. The chamber judge of the Appellate Division maintained that the bail order must be carried out and the men freed. Yet the man and his son were not freed on bail. It was learnt that advocate-on-record Sufia Khatun had issued another certificate stating that the government would be filing a petition seeking a stay order on the said bail.

In the matter of human rights activist and advocate of the Supreme Court, Adilur Rahman Khan, the same trick was played by no other than Sufia Khatun, working under instructions from the attorney general’s office. Order for Adilur’s bail was given by the High Court Division Bench of Justice Borhanuddin and Justice KM Kamrul Kader in October 2013 after bail had been denied in the magistrates court and the Cyber Crimes Tribunal. As soon as the order was given, a fax signed by advocate-on-record Sufia Khatun was sent to the Kashimpur Jail 1 authority with the same instructions not to release Adilur as the attorney general’s office would be appealing against the order. The next day the matter came before the chamber judge of the Appellate Division who reprimanded the attorney general and his companions and passed a ‘no order’, meaning that Adil was to be released as per the bail order granted by the High Court. Because of this, it took two days for the bail order to reach the Kashimpur Central Jail 2 where Adil was in pretrial custody. He spent those two days in illegal detention. If local and international human rights activists had not been carrying out fierce campaigns against his arrest and detention and demanding his freedom, perhaps he would have been detained illegally for longer, till the High Court was petitioned as in the case of the three men mentioned above. His co-accused, Nasiruddin Elan, also had spent a few days in illegal detention in the Kashimpur Jail 2 before he received his bail order.

These are just three examples of what has become a common practice. Even the attorney general stated in court on June 13, 2016 that it was ‘traditional’ for advocates-on-record to issue lawyer’s certificate to the prisons authorities on instructions from the attorney general’s office when it decides to appeal against the High Court’s bail orders. All this begs the question: is the office of the attorney general more powerful that the court of law? Why does it act as if it were? According to Article 64 of the constitution, the president appoints the attorney general for Bangladesh. Again, as per the web site of the Law and Justice Division of the government, the attorney general’s office is ‘entrusted with the responsibility of giving legal advice to the government’ and to represent the government in the court. The web site clearly states that ‘the nature of the work is highly professional. They are not permanent incumbent of the government. Their appointment is made on an ad hoc basis.’ So, in a nutshell, the attorney general’s office is basically a large chamber of lawyers with one client — the government. So its sole focus is making its client happy so that the client retains them as they are — their position being ad hoc and all. In such a situation, maintaining a high standard of professionalism and professional respect for the rule of law and the courts must be a difficult task. The client’s needs become paramount regardless of how this is obtained. Such has been the nature of this office for a very long time — with variations only to the levels of ‘professionalism’.

As for prison authorities, they were responsible for freeing accused persons on bail. Instead, they illegally detained them on ‘certificates’ and faxes signed by advocates who have no status above the High Court Division. The prisons of Bangladesh are notorious for their treatment of prisoners, including the appalling conditions that they are kept in. It is common knowledge that corruption is rife at every level of prison administration. This act of illegal detention is just another issue on this checklist of mayhem.

The independence of the judiciary, respect for the rule of law and respect for fundamental rights are some of the foundations of a democratic society. The more these are abused, the weaker democracy will become; and what will fill the void is more human rights violations, diminished law and order, increased crime and violence, the introduction of increasingly repressive laws to counter it all and a very oppressive state. The practice of manipulation of bail orders, illegal detentions and persecution must be stopped in order to maintain a modicum of democracy and the rule of law.

Saira Rahman Khan teaches law at BRAC University.

Report Published on June 18, 2016 at www.newagebd.net


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