The decision of the Supreme Court of Bangladesh made yesterday (April 23, 2008), to the effect that even the High Court, which consists of Supreme Court judges has no jurisdiction to entertain, or to decide on appeals relating to arrest, detention and other matters related to the Emergency Power Rules (EPR), is sending shock waves among the lawyers, informed citizens and human rights activists in the country. The decision was made by a bench of seven Supreme Court judges, consisting of a full bench of the Appellate Division of the Supreme Court. The court held that under the EPR the restriction on bail applied to all courts, including the High Court. This in short means that no court in Bangladesh, including the Supreme Court, can entertain or adjudicate on any matters relating to the EPR.
The Supreme Court made the decision in a case which came up by way of an appeal by the government against a High Court judgment which had granted bail to Maijuddin Sikder, a trader from Khulna district, who was asking for bail after being arrested, allegedly under the EPR. The High Court bench, which consists of two Supreme Court judges, sought the assistance of six outstanding lawyers as amicus curiae on the interpretation of the words court or tribunal in the EPR in order to clarify whether the prohibition on granting bail applies also to the High Court. The eminent lawyers who made up this group of amicus curiae consisted of: Mr. Mahmudul Islam, a former Attorney General, Dr. Khandker Mahbub Hossain, an internationally reputed lawyer, Barrister Rafique-ul-Haque, Mr. Khandker Mahbub Uddin Ahmad, a former parliamentarian and a senior criminal lawyer, Mr. Abdul Malek, former Justice of the Supreme Court and a senior lawyer and another eminent lawyer.
On the issue of the interpretation of the words court or tribunal the unanimous view of the amicus curiae was that as the High Court, which is a branch of the Supreme Court of Bangladesh, is the highest court of the country, and because it is a Supreme Court that has to deal with all constitutional matters, the prohibition that has been placed on lower courts with regard to bail does not apply to the Supreme Court. The amicus curiae opined that, as the highest court of the country, it is the duty of the Supreme Court to protect the constitution and the fundamental rights of the citizens. Given this most important function no restrictions can be placed on considering the issues of arrest and detention, which are matters that are crucial to the question of bail. They further argued that even the parliament does not have the power to abrogate fundamental rights and therefore the president also does not have the power to abrogate fundamental rights and deprive the Supreme Court of the right of review on such an important matter.
The seven member bench of the Appellate Branch of the Supreme Court yesterday pronounced that the appeal by the government against the order on bail made by the High Court is allowed. The Supreme Court has not yet issued its judgment detailing out the reasons for this order. This judgment of the Appellate Branch of the Supreme Court is contrary to the previous judgments of the Supreme Court on its jurisdiction on matters relating to the EPR and other laws.
Many lawyers and human rights activists have expressed shock at this judgment. Barrister Rafique-ul- Haque, one of the amicus curiae stated that, This is the last nail in the human rights coffin. While the vice chairman of the Bar Council, Mr. Khandker Mahbub Hossain stated, No person, accused in a case under the emergency rules, would have any scope of seeking bail even in the High Court after the judgment while the abuse of power given in the rules is rampant. This judgment simply means that the executive has the absolute power to make emergency regulations which may lead to the arrest of anyone and such arrest and detention is outside the jurisdiction of all courts, including the Supreme Court itself. The absolute nature of this prohibition virtually takes away the function of the protection of fundamental rights from the judiciary.
The Asian Human Rights Commission condemns the judgement of the Appellate Division of the Supreme Court as contrary to all the principles and norms relating to the powers of the highest court in any country. It also will have a tremendously negative impact on the protection of human rights in Bangladesh. Virtually, the military and the law enforcement agencies now have a completely free hand in dealing with the lives and liberties of the people of the country and the judiciary has disempowered itself of any capacity to grant redress. The AHRC calls upon the United Nations High Commissioner for Human Rights and all UN agencies, and human rights agencies globally to take up this matter as an issue of priority relating to the defense of human rights in Bangladesh. As Bangladesh is also a member of the Human Rights Council this matter needs to be urgently dealt with at all levels.
