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Saturday, March 3, 2018

JUDICIAL INDEPENDENCE VS. KHALEDA’S CAPTIVITY;What makes BNP chairperson’s detention questionable?


Special Correspondent

 The dispensation of justice not only must be based on fairness, equity and plausibility, it must be perceived to have been fair and plausible too. Since the BNP chairperson Khaleda Zia’s conviction on February 8, and her continuous captivity, the perception about the legality of her continual captivity has been mercurially changing; more so with facts and the procedures relating to the imprisonment of the leader of the country’s main opposition party getting crystalized and connoted by each day, at home and abroad.
 
 

 
Crime vs. punishment

 The so called Zia orphanage trust corruption case, under which Khaleda Zia has been convicted and sent to the prison, relates to a foreign donation of whatever amount, which got transferred under a transparent manner from the PM’s orphanage fund to a private charity called Zia orphanage trust. The transfer deems illegitimate, prima facie; but taken into consideration the donator’s consent — which is the government of Kuwait — the threshold of illegality appears blunted; especially when money was not spent or misappropriated by a third party. Rather, it increased doubly in the account of the Zia orphanage trust. Why then the accusation of gobbling up orphans’ fund?

 Yet, if the crime is ascribed to, and emanated from, the transfer of the fund from the PM’s fund to a private entity, it’s a mistake.

 

Then again, if the donor — the Kuwaiti Embassy in Dhaka — had consented to that transfer in writing, and the intent of the transfer was not to misappropriate, then the act itself doesn’t deserve to call for five years’ of imprisonment of a three- time prime minister and the ‘vanguard leader’ for the restoration of democracy in the country following nine years’ of autocratic military rule in the 1980s. 

 

Judicial independence

 As well, taking into cognizance the realistic parameters within which the entire judicial processing has revolved so far is equally pertinent. For no independent observers within and outside Bangladesh find or found the country’s lower judicial organs visibly, or substantively, independent. This is on record pursuant to the researches and the findings published by national and international observers and monitors.

 Yet, a court is a court; and it must be deemed to have operated based on fairness, plausibility and equity, unless proven otherwise. Above all, this case still being under another tier of judicial proceeding with the higher court, two seminal matters must not get discounted or shelved aside.

 First: Khaleda Zia is not guilty until the highest court of the country attests to that fact and upholds the trial court’s verdict. Second: obtaining bail is a matter of right, not of discretion; especially when the accused person doesn’t pose any ‘flight risk’ to get vanished, or whisked away, from the shackle of the laws.

 

Delay in bail

 Hence, conspicuously discernible from the weird politicking that has been storming the political ambiance is that the government hirelings are up in arms to fracture the BNP in the process; an effort that had failed miserably in the last nine years. And that is why BNP lawyers are accused of professional negligence or misconduct, and the government keeps propagating the offense as ‘heisting of orphan’s fund’ by a former PM who’s ‘thoroughly corrupt and immoral.’

In all fairness, the bail of Khaleda Zia — based on her social stature, age, physical condition and the dubious nature of the crime — should have been instant. Fact is: Those who are adept in delving into the intricacies of the laws are aware how difficult it’s to obtain a favourable judgement on any matter splattered with ‘political toxicity.’

And, in the context of Bangladesh, the trial court that had sentenced the former PM, at a time when the election is only months away, the perception is getting more defiant and incongruent with the facts being dissipated by the government. That’s the problem. Many even ask: why the verdict had to come with a supersonic speed prior to the election when the trial slogged over for nearly a decade?

 

Rule of law and democracy

 The bottom line is: Khaleda’s imprisonment had already dawned in bad omen for the nation. This matter is now at the heart of the discourse centering the prevalence of rule of law, which, by any calculation, is the bed rock of democracy. In a democracy, people must have the right to choose their representations to formulate laws that shall govern the governed.

 Execution of the laws being dependent on, and contingent upon, the fair play of the law enforcers and the judiciary alike, none can vouch that the rule of law in Bangladesh is moored on a footing that can be acknowledged, or attested to,  as being fair; especially in those courts one of which sentenced former PM Khaleda Zia. We say this based on the findings and the observations; not to belittle, defy, or incur contempt of the court. For we are no one to overlook facts that are empirically proven.

 Last but not the least, to conceptualize this dangerous ambiance, one must learn to digest the existentially perceptible, precarious situation which has begun to intrude into the electoral equation at a time when the surviving parliament is bereft of legal representation due to majority of the MPs having been elected uncontested; the main opposition and over 20 other smaller parties being away from parliamentary representations; and, the make shift opposition, the JP, being a loose appendage of the regime by virtue of its members enjoying cabinet portfolios and governing mandates. Accept or not, none of those scenarios and realties are in jibe, or in conformity with, the rule of law and democratic governance.

 

Cleanse the image first

 It’s time these blots and anomalies are rinsed up, spruced, and reformatted by the incumbent leaders to leave behind a nation that not only is governed by rules of law, it’s also construed to be so; perceptually and substantively.

 Lest we forget, the incumbent PM also had over a dozen of similar cases processed against her before she boarded onto the mantle of the PM following the 2008 election, and all of which got quashed by the same brand of judicial organs against which the institution of the Anti-Corruption Commission (ACC), or of the Attorney General (AG), did not make moves to obfuscate the judicial review process in the manner these two institutions have been doing with respect to Khaleda Zia. If the case in concern was initiated by the ACC, the AG had no business to oppose the bail proceedings in person at the court. That’s not how it’s done in civilized societies.

 Being Bangladeshis, we do feel helpless to the incapacitation to steer things to the desired, justifiable direction. Yet, as hard working, conscious citizen of the country, we want rule of law and democracy to shine and shower the depth and breadth of this nation. Let’s not get befooled, and, none should think we will compromise on anything less. Because, that is the way of the predecessors who had gifted us this beautiful nation to savour, sustain and succour.
 
 
   >HOLIDAY,MARCH 2,2018
 

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