People's rights flouted

Illegal usurpation of executive power and its excessive use by some armed forces officials without legal sanction during the last emergency government have shattered people's sense of respect for them, the Supreme Court has observed.

"In a democracy, firm constitutional guarantees should protect the state, including the armed forces from two types of potential dangers: from politicians who have military ambitions, and from military with political ambitions," said the SC in the full verdict on the refund of Tk 615 crore collected from businesses during the 2007-08 army-backed caretaker government rule.

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In March, the Appellate Division upheld the High Court judgments asking the government to return the money to 17 companies and several businesspeople that were forced to deposit the sum with Bangladesh Bank in tax of their alleged undisclosed money at the time.

A four-member SC bench headed by Chief Justice Surendra Kumar Sinha delivered the verdict, after dismissing the 11 appeals against the HC verdicts.

The full verdict was released on Wednesday. 

During 2007-08, an army-led task force under the National Coordination Committee launched an unprecedented drive against corruption.

The joint forces investigating high-profile financial crimes interrogated a number of corruption suspects and businesspeople.

At least 40 companies and individuals had to deposit more than Tk 1,200 crore with the central bank following the drive.

After the AL took office in January 2009, the companies wrote to the government, asking their money back. But their requests were turned down.

Later, the 17 companies filed petitions with the HC, seeking a refund with interest.

In the full verdict, the SC said though the Directorate General of Forces Intelligence (DGFI) denied its role in the “extortion” of money, BB documents clearly show that the money were collected by Lt Col Md Afzal Naser Bhuiyan, for the DGFI.

The verdict said that this money was not deposited by the writ petitioners by any chalan rather the payments were made by pay orders and cheques although the officer mentioned in his forwarding letters that they money was collected in due tax, VAT and AIT.

The SC said under the constitution or any other law, no officer of DGFI or any officer of intelligence forces has any authority to recover such money in tax or VAT. Article 83 of the constitution prohibits in such collection.

"We firmly hold that it is essential jurisprudence of our legal system that emergency situation and proclamation of emergency situation under the constitution or any other situation whatsoever does not give the president of republic or the government itself or any other governmental authority, be it law enforcing agency or DGFI, any extraordinary power to interfere in the life, property and private business and affairs or any individual or any other person including any incorporated body without positive sanction of valid piece of statutory law, especially when extraction of money is involved," reads the verdict.

“We take note that though all the money were extorted by the DGFI and deposited with Bangladesh Bank, the latter tried to justify its action which is reprehensible. It [BB] is the custodian of public money -- it has nothing to do with any action of the government or its agencies as to whether those actions were justified or unjustified.”

The BB cannot act like the executive and justify the illegal acts of an organ of the executive. It is the government which can explain in which manner and how the money have been collected or extorted, the court ruled.

The government remained a silent spectator but the BB and its chief executive supported the inhuman acts of an intelligence department of the government, flouting and exceeding the norms and the purpose for which the bank was set up, the verdict said.

In the verdict the SC lauded various activities of the armed forces such as its role during natural disasters as well as in maintaining internal security.

Since the mid-1970s, the army fought tribal insurgents in the Chittagong Hill Tracts. Then in November 2008, Bangladesh Navy effectively prevented economic aggression by Myanmar in the seas of Bangladesh. Occasionally, the military forces have been called to do social work like rehabilitation of people following a flood or cyclone, it said. 

There is also a dark side of these forces as well, said the SC.

"Some aberrant officers participated in the killing of the father of the nation Bangabandhu Sheikh Mujibur Rahman and other members of his family, his kith and kin. They also committed heinous crime like the killing of four national leaders in the Dhaka Central Jail. Some of the aberrated personnel also brutally killed President Ziaur Rahman," it said.

"Some misguided power-monger high ranking officers declared martial laws in 1975 and 1982. This National Forces should not take the responsibility of these deviant officers and jawans."

Similarly, the verdict said, in 2007 some of the officers compelled the president to declare emergency in the country on January 11, 2007.

"It was practically not their sole responsibility because then President Professor Dr Yeaz Uddin Ahmed in violation of the constitutional provisions then prevailing assumed the functions of the Chief Advisor of the Non-Party Caretaker Government in addition to his own functions under clause (6) of article 58C of the constitution.

"This illegal assumption of power inflamed the political parties and public in general. It is also not comprehensible how this regime has arrested Sheikh Hasina, the present prime minister, who was not the immediate past prime minister of the country on the ground of corruption without arresting the immediate past prime minister."

The SC said the political party in power did not find such corruption case in five years against Hasina, but the regime compelled one to file the corruption case against her.

"The regime indiscriminately arrested political personalities and businessmen. The country was about to brink of economic collapse by reason of indiscriminate arrest of politicians and businessmen by some ambitious officers of the Armed Forces."

The apex court highly appreciated the role of Indian armed forces as it said since 1947, one institution that remained absolutely free of communalism and divisive tendencies is the Indian Army.

"But unfortunately Bangladesh, Nepal, Myanmar, Pakistan Armed Forces have had to intervene and run the affairs of the countries with gun point and thereby, democratic fabrics were destroyed and it has become tougher for the democratically elected governments to consolidate democracy, rule of law and sovereignty of the people of those countries."

The SC outlined six-point guidelines for establishing armed forces in a democratic country.  They are: (1) the existence of a clear legal and constitutional framework, defining the basic relationship between the state and the armed forces; (2) a significant role of parliament in legislating of defense and security matters, in influencing the formulation of national strategy, in contributing transparency to decisions concerning defense and security policy, in giving budget approval and in controlling spending using “the power of the purse” in issues related to “the power of the sword”; (3) the hierarchical responsibility of the military to the government through a civilian organ of public administration; (4) the presence of a well trained and experienced military corps that is respected and funded by a civilian authority, which acknowledges the principle of civilian control, including the principle of political neutrality and nonpartisanship of the armed forces; (5) the existence of a developed civil society; and (6) the presence of a reasonable non-governmental component within the defense community capable of participating in public debate on defense and security policy, presenting alternative views and programmes.

The top court said that under the constitution, the “Armed Forces” was embedded in the system of the separation of powers. As part of the executive, the Armed Forces are bound by law and justice, and the protection of the basic human rights.

"Independent courts ensure that the Armed Forces comply with the law. A basic principle is that the members of the Armed Forces, like all other citizens, are subject to ordinary jurisdiction and also enjoy the guarantee of legal protection and the right to have recourse to the courts. There can be no independent military jurisdiction in the classic sense, i.e. jurisdiction as the product of the command authority of military leaders," said the SC.