The New Nation - Internet Edition

Recently, full Bench of the Appellate Division of the Hon'ble Supreme Court comprising Mr Justice Md Ruhul Amin CJ, Mr Justice Md. Fazlul Karim, Mr Justice MM Ruhul Amin, Mr Justice Tofazzul Islam, Mr Justice Joynul Abedin, Mr Justice Hassan Ameen and Mr Justice Md Abdul Matin allowed two appeals being Nos. 5 and 6 of 2008 filed by the Anti-Corruption Commission against Barrister Najmul Huda and Barrister Mir Helaluddin. In view of the public importance, we reproduce below the relevant findings as regards bail and other issues under Emergency Powers Rules dealt with in the judgement delivered on 6.3.2008 on behalf of the Hon'ble Appellate Division by Mr Justice Md. Abdul Matin:

The argument on behalf of the respondent is that Rule 11 does not apply in cases of conviction under any of the offences under the laws mentioned in Rules 14 and 15, rather Rule 11 is applicable only in cases of the judgements of the Courts mentioned in Rule 10 and not in cases of the judgements by the Special Judge.

We find no substance in this argument, inasmuch as Rule 11 speaks of Judgements of any Court under the Emergency Powers Rules and not only Courts mentioned in Rule 10. Section 18Kha(3) specifically mentioned Special Judge who has been mandated to follow Criminal Law Amendment Act, 1958 subject to the provisions of the Emergency Powers. Rules, 2007 and therefore any person aggrived by any judgement of Special Judge, his appeal is regulated by Rule 11. The expression in Rule 11(1) ÒGLwZqvi m¤úbœ Dchy³ Av`vjZÓ in the instant cases refers to the High Court Division in view of section 10 of the Criminal Law Amendment Act, 1958 and the High Court Division when hearing an appeal under section 10 of the Criminal Law Amendment Act, 1958 is to follow the provisions of Rule 11 in the matters of speedy and effective disposal of the appeals as well as in the matters of granting stay operation of the jugement of the Special Judge and also in the matters of granting bail. The expression ÒGB wewagvjvi AwabÓ refers to the Emergency Powers Rules as a whole. It cannot mean and refer to Rule 10 only otherwise the expression would have been ÒD³ wewai AwabÓ i.e. under the aforesaid Rule.

The question is, whether the High Court Division during pendency of the appeal is debarred from granting bail to the appellants.

Sub-rule 2 of Rule 11 provides for speedy disposal of the appeal within 90 days from the date of filing and sub-rule 3 provides, in unequivocal terms, that the appellate Court during pendency of the appeal shall not grant bail or stay operation of the judgement.

Rule 11(1) speaks of different appeallate Courts which is obvious from the expression ÒGLwZqvi m¤úbœ Av`vjZÓ and in view of section 10, Criminal Law Amendment Act, 1958 the High Court Divsion is one of such appellate Courts and in view of Rule 11(3) High Court Division is the ÒAvcxj Av`vjZÓ and therefore, the embargo in the matter of granting bail is at once applicable to the High Court Division in matters of appeals under section 10 of the Criminal Law Amendment Act, 1958, not because it is the High Court Division but because it is the appellate Court within the meaning of 18Kha(3) and 11 of the Emergency Powers Rules.

The language of Rule 11(3) admits of no ambiguity and therefore, there is hardly any scope for interpretation. The intention of the law makers is manifested in the express words used in Sub-rule 3 leaving no scope to doubt that such power of granting bail by the appellate Court has been taken away by express provisions.

The object of the Emergency Powers Ordinance is to bring the offences under other laws within the mischief of the Emergency Powers Rules has been spelt out in section 3 Ka of the Ordinance as quoted hereinbefore. The purpose is Ò`ª“Z I Kvh©Kifv‡e m¤úbœ Kwievi Rb¨Ó i.e. the offences under Criminal Law Amendment Act, Penal Code, Anti-Corruption Act, 2004 as well as offence under section 5(2) of Prevention of Corruption Act, 1947 have been brought under the Emergency Powers Rules for two purposes - (1) For speedy trial and (2) For effective disposal of the appeals, etc. In the earlier law there was no time limit for disposal so far the appels are concerned. There was no total embargo in granting bail. In order to implement the scheme of the law, the law makers brought the appeals and trial, etc. under the Emergency Powers Rules to avoid delay in the disposal and to ensure that the convicts do not run away on getting bail.

One of the Rules of interpretation is called mischief Rule, which provides that "the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief. To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined." This manner of construction has two aspects. "One is that the Courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net." (Maxwell on The Interpretation of Statutes 12 Edition Page 137).

From the discussions as above we cannot but hold that Rule 11 of the Emergency, Powers Rules, 2007 as a whole is not only applicable in respect of offences mentioned in Rules 3 to 8 of the Rules but also in respect of the offences under the laws mentioned in Rule 14 and 15 of the Rules, inasmuch as the Rules are to be read and construed as a whole and not in isolation of each other.

Granting of bail by the appellate Court is governed by section 426 of the Code of Criminal Procedure. In view of Rule 12 of the Rules, section 426 of the Code of Criminal Procedure could have been applicable had it not been inconsistent with Rule 11(3) of the Rules and since Rule 11(3) specifically bars the jurisdiction of the appellate Court which is, in the instant cases, the High Court Division, no bail can be granted by the appellate Court as the High Court Division in view of Rule 11(3) of the Rules.

Legal history is replete with examples that extreme situation often demanded a nation to take extreme legal measures. Penologists in America aptly wrote as early as in 1842 that "Penalties inflicted by human law, having their foundation in the intrinsic ill-desert of crime, are in their nature vindictive as well as corrective" Harsh laws, therefore, are made for the greater benefit of the people when situation so demands. American Supreme Court approved without dissent such harsh powers in the case of Harabayashi vs United States (1943) that involved more than one lac Americans who were expelled from their communities for disloyaty, the mass evacuatin of Japanese - Amercians from their west coast during World War II and their confinement for three years " in Tar-Peper barracks fenced by barbed wire and guarded by armed solidiers" for " military necessity." Suspension of Constitutional rights had t be sanctioned by the Court during war time. Judges probably remembered the Roman statesman, Cirero who said "Silent leges inter arma" (laws are silent amid arms). We are, however in respectful agreement with Lord Atkin when he said, " amidst the clash of arms the laws are not silent. They may be changed but they speak the same language in war and peace Habeas Corpus Suspension Act and the Emergency (defence) Act 1939 in England are the other examples. In India in 1975 though 9 High Courts held tha writ peitition in the nature of Habeas Corpus was maintainable during emergency, the Indian Supreme court in ADM, Jabalper vs Sukla, AIR 1976(SC) 1207, held that no person has locus standi to move any writ petition for direction to enforce any right to personal liberty of a person detained under MISA.

In our jurisdiction in 1972 such harsh laws were made and jurisdictin of the High Court Division to grant bail was ousted.

Article 10 of PO 50 and Article 14 of PO 8 put similar restriction in the matter of granting bail to persons convicited under PO 8 of 1972 and PO 50 of 1972. In 18 appeals the High Court Division granted bail to persons convicted under the above two President Orders and 18 appeals were preferred before this Court by the Government and this Court set aside all those Judgements of the High Court Division and allowed 18 appeals holding:

"The contention of Mr Abdul Hye Choudhury and Mr Serajul Huq that the restrictions in the matter of bail to convicted persons as enjoined under Article 10 of PO 50 and Article 14 of PO 8 were intended to apply only to the trial Court. therefore, cannot be sustained. The restrictions obviously apply and were intended to apply to the High Court Division to which appeal lies from convictions under these orders."

This Court, in that case, further held "that the provisions of the said two Articles are very extraordinary and they are likey to entail unnecessary hardships and injustice in some cases but such considertion should not deflect a Court from its duty to interpret law in the light of manifest intention of the legislature." Solicitor, Government of Bangladesh vs Syed Sanwar Ali 27 DLR (AD) 16.

In series of cases this Court laid down a general principle that in appeals involving short sentences the High Court Division should dispose of appeals expeditiously or release the persons on bail. Reference may be made of cases reported in 1991 BLD (AD) 96 = 43 DLR (AD) 119, 1994 BLD (AD) 184 = 46 DLR (AD) 143 and 1999 BDL (AD) 202 = 51 DLR (AD) 162.

These decisions declaring laws on bail is part of law of the land and should be read into all the special laws, in view of Article 111 of the Constitution. It may be noticed that in section 212 of the Government of India Act 1935 the language used was, "judgements of the Privy Council is binding upon the Federal Court and all the Courts in India as far as practicable and judgement of the Federal Court is binding upon all Courts subordinate to it as far as practicable but in our Article 111 the word "judgment" has been replaced with the words "law declared" and "as far as practicable" has been omitted with deliberate intention to make the declaratory part of the judgements binding upon the whole nation not only upon the High Court Division and the Courts subordinate thereto.

It is shocking to note that though in the case reported in 1994 BLD (AD) 184 = 46 DLR (AD) 143 the High Court Division was admonished for writing long judgemnt for the purpose of disposal of bail petition but it appears that the High Court Division has totally ignored this message and in these cases dealt with bail applications at considerabl length spending time and energy which was sufficient for disposal of the appeal itself.

In view of our discussion and observations as above, the appeals are allowed the judgement in both the appeals are set aside but the appellate Court, in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal.

(Published in April issue of Dhaka Law Reports)