Perspectives: The questions after the landmark High Court verdict
So what happens now? With the High Court having quashed the Tk.2.99 crore extortion case against former prime minister Sheikh Hasina as being outside the purview of emergency laws, it is now time for the powers that be to ponder the legality and constitutionality of many of the measures they have undertaken so far in respect to the prosecution of corruption charges against a whole class of individuals.
It ought to have been for the government to read the writing on the wall where the case against Sheikh Hasina was concerned. Nearly everyone who is anyone in Bangladesh has been pointing to the vast loopholes in a case tried under the Emergency Power Rules. That said, there was also the grave matter of bringing a case on charges stemming from alleged crimes allegedly committed eight years ago under the purview of rules put in place a mere year ago.
It is not just surprising, but mind-boggling as well, knowing that the legal luminaries of the government, of the Anti-Corruption Commission, did not know what people around the country already knew. And it was that the case against Sheikh Hasina rested on shaky legal foundations. It would be difficult to sustain it.
Justice Shah Abu Nayeem Mominur Rahman and Justice Shahidul Islam have, in the higher interest of the law and in the broader interest of the country, made it clear that measures instituted against individuals in a particular situation can only go thus far and no further.
It should have been for the authorities to comprehend, long before Wednesday's judgment on the Hasina case came to pass, that a moment might well arrive when the entire edifice of the charges brought against detained politicians under EPR could crumble. If the judgement stands, what happens to those, or about those, individuals who have either been judged guilty or await trial on charges of corruption under the EPR?
The caretaker government needs to go for a change of course, one that it should not have ignored in the first place. It would have made a whole lot of sense if, following the declaration of a state of emergency last year, the government had opted to bring individuals accused of corruption to trial under the existing laws of the land. Nothing can be more substantive, nothing can be more foolproof, than for a state to pursue the normal, accepted legal procedures in matters that relate to crimes or alleged crimes.
And there have been precedents in our time when an application of accepted and due process of law has allowed little room for any question to arise about the morality or ethics of a case. There is the instance of the case relating to the assassination of Bangabandhu Sheikh Mujibur Rahman. The government of the day surely demonstrated sagacity in not adopting measures that would have circumvented due process of law and thereby weakened the fundamentals of justice.
The problem that we are now left facing is one of what we as a people need to do about all the individuals who, as we recall only too well, indulged in sordid, manifest corruption. These are people who require to answer to the law about the bad governance they subjected the country to in their days in high office. And that is something which could have been and may yet be possible if they are tried under existing laws.
Obviously, at least at this point in time, the Emergency Power Rules vis-à-vis trials on charges of corruption, do not apply. Are we then to suppose that those against whom accusations of manifest bad conduct have been made will walk free and perhaps even make a triumphant entry back into politics? It is a sad question, made absolutely pathetic by the inability of the authorities to foresee the consequences that might arise out of short-sighted actions.
The lawyers who have been assisting the Anti-Corruption Commission, or have been associated with it, need to develop clear perspectives on the legal efficacy of dealing with politicians the way they have been dealt with in the last one year.
There are other questions as well, notably those relating to the grant of bail to detained individuals. To what extent prosecution lawyers' appeals against bails granted to detained political figures, thereby not allowing them to walk out of prison, amount to an upholding of the law is an issue that must now be broadly assessed within the corridors of the administration.
The High Court judgment has simply put paid to a case pursued in a shoddy, unthinking manner. The government must understand that taking a shortcut in legal matters can boomerang. That is the lesson to be learnt from the HC verdict.
Syed Badrul Ahsan is Editor, Current Affairs, The Daily Star.
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