The New Nation - Internet Edition

Barrister Md. Abdul Halim

From ordinary people's point of view, it is sometimes very typical in many cases in Bangladesh that verdict in favour of the prosecution is obtained or granted in the trial Court but overturned or stayed in the High Court on its first move be it by way of writ, quashing application or appeal. In the wake of one-eleven incident with the takeover of the military-backed caretaker government the mass arrest of political bigwigs who have hitherto been infamous for their corruption and misdeeds as public servants and their subsequent prosecution by special courts in corruption charges have eased public anger in the sense that no one is above the law.

However, this easing concern has suddenly turned out to be a matter of lull and hush among general public in the wake of mass granting of bail and order of stay of proceeding or judgment of the trial Court by the apex judicial body in the country which is seen as the last bastion of impartial justice. The public perception is at stake with some avowed questions: is law partial or blind? How can 'the law' or judicial system be such drastically twisting? Did the trial courts perform all judicial errors and mistakes? I must make it clear at the very onset that the judicial system of a country does not always have to go by the public perception although it is set up for public service and rendering impartial justice. Impartial justice does not always mean easing or erring public perception.

The general public might perceive the apex court as a forum of justice but the term 'justice' is not something as ordinary people perceive; justice is to be done and served within the four corners of law and the judges themselves are not and cannot be above the law does not matter whether public perception is attacked or smashed in the way of dispensation of justice.

Very technically we call "law is blind"; we both judges and lawyers also do wear black gowns and coats. This also signifies that law is blind. Why? The law is blind in the sense that the court and the judges cannot go beyond the evidences produced in the court to prove or disprove the matter in question; once evidences are produced be it either by way of testimony of witnesses or material evidences during the trial process, the judge has to come up with the verdict strictly in accordance with the value and warrants of those evidences; and the superior courts above the judicial tire are also bound by those evidences and they have to give verdict or decision in accordance with the strengths of those evidences does not matter the verdict goes against public perception or affects any public concern.

Alongside the evidences there is another yardstick to be followed by the superior courts in upholding or rejecting a lower court judgment; and this is the strict compliance with every step or procedure of law while conducting investigation or trial of the matter in question.

If it is a criminal matter and there is slightest violation in compliance with the law and its procedure during trial or investigation, the superior court will have no other option but to stay the proceeding or judgment and finally dismiss or quash the matter in its final hearing.

When a writ or criminal miscellaneous applications or similar motion application is filed and moved in the High Court, usually the petitioner prays that the lower court proceeding or order or judgment be 'stayed and Rule issued' against the respondents because while conducting the investigation or trial the law was not somewhere properly followed. Stay means suspension of operation of the impugned order/action/judgment/ verdict till a specified period or till hearing as specified by the court. If the petitioner's lawyer can substantiate a prima facie case in his favour that there was violation of law and its procedure while conducting investigation or trial in the lower court, the High Court will usually grant a stay order and in that case granting bail becomes a matter of right of the accused person does not matter whether the accused is an ordinary citizen or serial killer or well known corrupt politician.

Who is to blame then? Is it the law or those who start prosecution? Well, it could be both. As far as recent high profile corruption cases against political bigwigs are concerned, it was at the very beginning of this process that whispering and legal opinion were on the air that this was not the proper net to catch these bigwigs.

The laws under the Emergency Ordinance and Emergency Power Rules and subsequent amendment to the anti-corruption laws under which these bigwigs were arrested and tried have been attacked in the court as illegal and unconstitutional and hence all trials and prosecution under these laws would be illegal.

It is fundamental norms of constitutional as well as criminal law that all persons will have right to get protection against expost facto law and this is guaranteed under article 35(1) of our constitution.

This means that a person cannot be convicted of an offence except for violation of a law in force at the time of the commission of the act charged as offence.

Sub-article 35(1) also provides that no person shall be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.

Assuming that all procedure in the laws was duly followed, still there is scope for the judges of the apex court to stay proceeding and conviction under these provisions of the Constitution. Then question comes- why did the trial Courts undergo these trial procedure at the cost of time and money from the state purse?

Well, all these laws are still valid laws as they have not yet been declared by the apex Court illegal or unconstitutional and the trial Court judges cannot ignore the laws made by the government of the day. When a criminal case is brought before the trial court after investigation and charge-sheet, it is incumbent upon the trial court to start trial as per law and there is little scope to see whether all procedure in the investigation and filing the case was followed. This is mainly because the defence side does not raise these issues before the court and our trial judges work on adversary system as opposed to civil law system.

Under adversary or common law system judges are to play role impartially and have little jurisdiction to interfere into the process of investigation by the state. The groundwork for a successful conviction under a criminal law largely and mainly depends upon the police and investigation authorities and if they either accidentally or intentionally or being persuaded by any party manipulates or violates rules with regard to investigation or prosecution, it is obvious that in the long run the conviction might not be upheld in the apex court.