The New Nation - Internet Edition

Human rights: Bangladesh perspective

Md. Munsurul Hoque Chowdhury

Senior Advocate

Today's world is much more concerned about the right of individual human being and the concept "Protection of human rights" is being propagated widely in almost all the countries of the world. Any right of an individual, as protected under any law is an inherent right, not only of an individual but of the society, particularly at large of all the citizens of a sovereign country. Right is a legal right as one can rightfully or legitimately claim for himself or for any other. So Right as defined means legal right. Infringement of right against humanity or of any protective law may be termed as violation of human right. Now a days, almost everywhere around the world it is widely talked about violation of human right, but in most of the countries this way or that way human right is being violated in different names and with the excuses and pleas favouring to the infringers of human right.

World has now become very small because of electronic devices-Internet, mobile phones, etc. It takes no more than one pulse to know about any incident taken place at any part of the world and because of the device the whole world becomes very close, particularly the electronic media is playing a very pivotal role in exploring the slolgan of human rights around the world community.

In Bangladesh human right is being violated frequently mostly against women and children. The main reason behind this is lack of proper education to both male and female. To educate the femalefolk various intellectual ideas are working in the field primarily to expand scope of education to female child and this can only be stopped through education and mass awareness. To encourage the female child to go to school attractive scheme is undergoing in the rural areas namely offering wheat/rice against primary education but with little progress. It is frequently seen that the parents are interested to collect the food grains sending their children only on the day of distribution and this is because of extreme poverty.

So, our main problem is poverty and unless poverty is eliminated to a considerable rate, and within acceptable limit-all measures proposed for implementation shall obviously be delayed. Education, no doubt plays a pivotal role, to make any 'good reasoned endeavour' to success, but in our country our government should give more stress on elimination of poverty as poverty widely stands on the way of any good governance. Therefore, the first priority of any government should be on poverty elimination. In rural areas where parents compel their child to go for work including odd and risk- involved works even before attaining the age of 12 years which is no doubt an inhuman act and should be prevented.

We have already experienced the effect of various laws enacted in order to prevent criminal acts but with little progress. The main reason, if we look deeply, will be our unawareness and this unawareness is mainly because of poverty and lack of education. Still now in our country slogan "Human Right" runs counter to poverty and education. In order to achieve in this area, it should not be the only slogan fight for human right but should be the main theme to grow awareness within men and women of any age through the process of elimination of poverty and expansion of education. One should not only know but also understand logically what right he or she should express.

By enacting various laws one can be brought to justice for breach of law but in order to prevent abusive acts mass-education with poverty elimination may play a very important role protecting human right.

For the last few decades there has been legislation's in various names to protect the dignity of woman and children from various onslaughts of heinous nature, namely physical torture, acid burning, dowry repression, rape and other crimes violating human dignity which our Constitution, also guarantees.

Constitution of Bangladesh by enactment of several Articles ensures protection of human rights. It is clearly enacted in Article 11 of the Constitution as follows :

"11. The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured."

With this embodiment of the element of human rights Part-III has been enacted accordingly with brief title "Fundamental Right", guaranteeing the basic fundamental rights of citizen of the country.

In order to protect the fundamental right of the citizen of the country numerous protective laws-have so far been enacted and also inherited. State organs namely the law enforcing agencies are at the helm to enforce those laws.

A very important role is played by the law enforcing agency to protect and preserve one's right but in past days, in many cases it is seen that the rights of citizens were not properly protected but rather violated in the hand of unscrupulous law enforcers; an instance is "Yasmeen Murder Case".

We have experienced in the past, immediately after each election the opponents were ill treated inhumanly-but legal measures and remedies were few. We should, as a nation, come forward to respect law as well as the constitutional mandate on "Human Right" and there should be safeguards on abuse of process of law, particularly against the "Law Enforcing Agencies".

Because of implementation of the directives of our Appellate Division by separating judiciary from the executive we have stepped in to a new era and the nation has welcomed the separation process with the best hope that this separation will directly help to protect Human Right through quick and proper dispensation of justice without fear or favour to anybody.

In conclusion, it can be said concept of Human Rights is no doubt an integral part of our social values, traditions and ethos but due to rapid changes in both social and economic life it is imperative now to have a fresh look at the concept of human rights. Because of independence of judiciary from the Executive it makes sense to thinf afresh on "Human Rights" because previously human rights have frequently been violated because of interference on judiciary.

Inordinate delay in holding trial

High Court Division

[Criminal]

Present:

Mr. Justice Khademul Islam Chowdhury

And

Mr. Justice Afzal Hossain Ahmed

Criminal Appeal No. 5122 of 2006

Abul Kalam t.. Accused Appellant (In custody)

Versus

The Statet. Respondent

Mr. Md. Shamsul Huda-

for the Appellant.

Mr. Khondoker Diliruzzaman A.A.G with Mrs. Salma Rahman. A.A.G.

. .. for the State.

Judgment on: 5.8.2007

Code of Criminal Procedure, 1898 Section -498 read with Section 339( c)

Inordinate delay in holding trial

In view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence if the trial is not concluded in the specified time and since the co-accused Shamsul Alam has been enlarged on bail by the High Court Division we are inclined to enlarge the appellant on bail [Para-5]

Judgment

Mr. Khademul Islam Chowdhury, J: This Criminal Appeal at the instance of accused Abur Kalam is directed against an order dated 20.11.2006 passed by Metropolitan Special Tribunal No.7 Dhaka, in Metropolitan Special Tribunal Case No. 473 of 2003 (arising out of Gulshan Police Station Case No. 26 dated 16.8.2002) rejecting the prayer for bail of the accused appellant.

2. Case of the prosecution is that one S.L Md. Abul Hakim along with his company under the leadership of Md. Abdul Nur, Police Inspector lodged FIR-with the Gulshan Police Station, Dhaka on 16.8.2002 alleging, inter alia, that they arrested the FIR named accused persons in accordance with D.B. Office Diary No. 651 dated 14.8.2002 under section 54 of the Code of Criminal Procedure and thereafter they had taken him on remand and on interrogation they disclosed that they were the active members of gang of Motor Cycle Thieves. They used to meet at the house of the accused Abul Kalam of Mohakhali and steal motor cycle from the city area and snatched the same showing arms and sold those in different districts.

After interrogation they recovered one 32 bore country-made revolver and two round bullets alleged to have been brought out by accused Shamsul Alam on his own from the house of the accused appellant and pursuant to alleged confession made by co-accused Suruj Miah and the appellant, thereby committed the offence punishable under section 19(Ka) of the. Arms Act. Police seized the revolver by preparing seizure list in presence of the witness. One receipt of the F.I.R. Gulshan police station case No. 26 dated 16.8.2002 was started, police investigated the case and submitted charge sheet against 3 (three) accused persons. Prayer for bail moved before 'the Metropolitan Special Tribunal No.7 before whom the case is pending for trial is rejected as aforesaid, hence this appeal.

3. Mr. Md. Shamshul Huda, the learned Advocate appearing for the accused appellant taking us through the FIR and seizure list and order sheet including the last order sheet dated 4.6.2007 and the evidence on records in the case already recorded submits that there has been undue prolongation of the case for failure to produce prosecution witnesses and it will be evident from the last order that the case has been fixed the next date on 1.8.2007 for trial. He further submits that there is no prospect of conclusion of trial within short period.

Mr. Huda, the learned Advocate has placed the decision of the Appellant Division on the case of Captain (Rtd) Nurul Huda -Vs State, wherein it is held if the trial has not been concluded within the specified time of 360 days from the date on which the case was received for trial the accused of nonbailable offence may be released on bail to the satisfaction of the Court unless the Court otherwise directs in writing.

Thus the section provides that for failure to complete the trial within the specified time a right is accrued to the accused of a non-bailable offence which has the mandatory effect to he released on bail.

The sub-section provides for the consequence of release on bail if the trial is not concluded within specified period but the words "unless for reasons to be recorded in writing the court otherwise directs" are designed to be exercised in exceptional circumstances to deprive the right to be enlarged on bail on very cogent reasons, the reasons including the strong possibility of absconding or tampering with witnesses or hindering the prosecution of the trial.

The learned Advocate then submits that 2 accused persons namely, Md. Shamsul Alam and Suruj Miah allegation against whom is same against refusal of prayer for bail accused Shamsul Alam preferred Criminal Appeal No. 2931 of 2006 and he was enlarged on bail by the High Court Division at the time of admission of appeal. In the facts and circumstances of the case, the accused .appellant standing in the better footing than that of the accused released on bail he may be enlarged on bail. .

4. The learned .A.A.G. opposes the prayer for bail. He submits that the arms was recovered from the joint possession and the accused are named in the FIR and considering the nature of allegation bail should not be granted.

5. Considering the facts and circumstances of the case and the submissions made by the learned Advocate for the accused appellant and the learned Assistant Attorney-General for the state, in view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence is the trial is not concluded in the specified time and since the co-accused Shamsul Alam has been enlarged on bail by the High Court Division we are inclined to enlarge the appellant on bail.

6. Accordingly the appeal is allowed.

Let the accused-appellant Abul Kalam, son of late Nayan Matbar be enlarged on bail to the satisfaction of the Deputy Commissioner Dhaka. If the appellant misuses the privilege of bail tribunal can take him in to custody.

The impugned order appealed against is hereby set aside.

Dower-A right or ritual?

Barrister Rabia Bhuiyan

Senior Advocate

In Muslim Marriages, the provision of dower is considered as an essential aspect. Dower is considered under Sharia's law, as an inalienable right of the wife as well as an obligation of the husband to pay dower. So, if marriage is contracted with a condition, that no dower shall be paid, according to Hanafi law, the wife still is entitled to proper dower. (Rahim, Abdur "The Principles of Muhammedan Jurisprudence, P-81). Dower is divisible into two parts, prompt dower and deferred dower. The prompt dower is realisable by the wife at any time before or after consummation. The deferred dower is payable on divorce or death of the husband. However, if the husband contracts another marriage without the previous permission of the Arbitration Council, he shall pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue (Muslim Family Law Ordinance, Section 6(5) (a).

Though there is no fixed amount of dower, usually dower if fixed at the time of marriage according to the status of the husband, and mentioned in the Kabin Nama (marriage deed). But in any case, the money cannot be less than 10 Dirham (1 Dirham = Tk 18 app.).

In reality, however, the lofty ideals of Sharia's law have no application in the lives of Bangladeshi women. In practice and in reality, the non-payment of prompt dower is more common in Bangladesh. In rural areas, 90% of Muslim wives do not get any dower money at all whether prompt or deferred dower.

The prompt dower is not paid for several reasons. After marriage, most wives are reluctant to ask for it and they do not even know all the conditions in the marriage deed, a document written by their guardians. The husbands seldom pay the amount on their own. The stipulation is generally written under clause 15 of the Kabin nama (marriage deed), that the husband has paid certain amount of dower in the form of jewelleries and cloth during marriage. The husband or his men create pressure to fill up this clause mentioning those items. The customary concept of usul (paid) treating all kinds of jewelleries and wedding presents as dower does not allow the wife to ask for dower. Finally, even if the wife ask for dower money, the husband is unwilling to pay and the wife, in order to save her marriage, dares not to insist for payment.

In most marriages, dower money is rarely paid even if the wife demands payment. Though dower is an important aspect during marriage it is not deemed essential to settle this issue for divorce. The absence of any statutory obligation to pay unpaid dower money to the wife facilitates the dishonest husband escaping the payment altogether. In case of divorce, the wife has to recover it through court case like maintenance facing strong contest from the husband. During contest the husband often raises different pleas such as the dower money is paid (usul) in the form of jewelleries or shows a paper (which he obtains from his wife forcibly or forges her signature) showing that his wife has either received or waived her dower.

Although Shari'a law contains several positive provisions, of which dower is one to safeguard women's rights ; these provisions have deteriorated due to socio-cultural reasons and patriarchal subversions of a later period. The dower has eventually ceased to be a safeguard for women against arbitrary divorce.