One/Eleven emerged in the political history of Bangladesh for the unexpected doings and behavior of the politicians and political parties of the country and of course corruption is one of the most heinous misdeeds. As a result, the Caretaker Government, from the very beginning waged war against corruption and amended the provisions of the Emergency Power Ordinance suspending the rights right to bail of those who are accused in corruption cases filed under EPR. Pertaining to bail, the amendments to the Emergency Powers Ordinance 2007 of 20 March 2007 states, "Regardless of whatever is stated in sections 497 and 498 of the Criminal Procedure Code or any other law, an accused under the Emergency Powers Ordinance will not be released on bail during the enquiry, investigation and trial of the case against that person." The gazette notification of the amendment was issued on the night of 20 March 2007 with retrospective effect from 13 February 2007.
Despite having such a harsh provision, the corruption suspects are getting released on the High Court (HC) bail and cases against them are being stayed because of loopholes in the Anti-Corruption Commission (ACC) laws and rules.
It is submitted that decisions on bail in general Criminal Cases can have far reaching consequences for the victims of crime and the public in general. From the viewpoint of the defendant, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time. It is vital that Prosecutors recommend the appropriate course of action to a Court in connection with bail and that sufficient comprehensive information is available to a Court in connection with the decision whether or not to grant bail. However, in corruption cases, the court should be extra vigilant to ensure that the corruption suspects are not getting released through the loopholes in the Anti-Corruption Commission (ACC) laws and rules.
Recently, the corruption suspects are getting released on the High Court (HC) bail and cases against them are being stayed because of loopholes in the Anti-Corruption Commission (ACC) laws and rules. These loopholes constitute three grounds on which the HC mostly grants bail to accused persons and stays proceedings against them.
One is the ACC officials' failure to submit enquiry reports within 30 days of being tasked with gathering information about a corruption suspect and the investigation officers' failure to submit reports within 60 days of filing of the cases as per the rules. The two other grounds are ACC's not issuing gazette notifications on appointing investigation officers and not serving notices for submitting wealth statements upon women and children charged with aiding and abetting the principal accused in committing corruption. It is possible to complete the trials of corruption offences on the basis of wealth statements of the accused and the investigation reports but these ambiguities in the ACC rules and laws prevent the ACC to reach its goal of the anti-corruption drive.
On 6 March 2008, the Supreme Court ruled that appellate courts, including the High Court, do not have the jurisdiction to grant bail to those convicted by special graft courts under the Emergency Power Rules (EPR). This judgment was delivered by the full bench of the Appellate Division of the Supreme Court headed by Chief Justice Mohammad Ruhul Amin while hearing the appeals of the Anti-Corruption Commission against the grant of bail to then UN Special Rapporteur Sigma Huda and Barrister Mir Helaluddin by the High Court on 13 December 2007 after they were convicted in corruption cases by a special court under the EPR. The Supreme Court also cancelled the bails granted to Ms Huda and Mir Helaluddin.
Contrary to the above judgment, on 27 August 2007, the Supreme Court stayed the High Court's orders granting Sheikh Hasina’s bail in two extortion cases. The cases were related to the one filed by businessman Noor Ali in which the High Court granted bail on 7 August 2007 and asked the government not to have her tried under the emergency rules, and the one filed allegedly by Azam J Chowdhury, Managing Director of East Coast Trading Private Ltd in which Ms Hasina was granted bail by the High Court on 30 July 2007. On the same day, the Supreme Court also stayed the High Court's order granting bail to business leader Abdul Awal Mintoo, who was arrested under the EPR.
In the above judgment, the Supreme Court (SC) observed that the High Court (HC) may entertain petitions for bail in cases filed under EPR if they are filed with mala fide intentions, on suspicion, or with a court which does not have jurisdiction over the matter. The latest SC judgment, however, still allows the government's appeal against the HC judgment, while setting aside the HC judgment with seven point observations allowing it to hear, on three grounds, bail petitions in cases filed under EPR.
Legal experts termed the latest SC judgment as 'self-contradictory', as in the earlier judgment, the SC declared that bail seekers will not be able to go to the HC seeking bail in cases filed under EPR. After the publication of the copy of the recent judgment, the HC is entitled to grant bail in cases filed under EPR on three grounds.
It is submitted that the "Right to get bail" is a fundamental and democratic right of the people. The earlier SC judgment had revoked that right from the accused people involved with corruption. The innocent people arrested under EPR will now have a chance to get bail according to the observations in the Supreme Court's recent judgment. However, the Supreme Court also needs to ensure that the real corrupt are not slipping through legal loopholes in ensuring the right to get bail to innocent people.The court should provide specific clarification regarding the real corrupt providing restrictions regarding their right to get bail under EPR.
Adviser for Home Affairs Maj Gen (Retd) MA Matin recently said that disposal of all corruption cases is getting stuck due to bail orders, stay orders and issuance of rule nisi against the Caretaker Government. "The speed of disposal of the graft cases has slowed down following High Court rules and stay orders," he said after the 43rd meeting of the National Coordination Committee (NCC) on Serious Crime and Corruption. Matin, who is also Chairman of the National Coordination Committee (NCC) on Serious Crime and Corruption, mentioned that the High Court has issued rules and stay orders in 173 cases and granted bail to 158 people detained in 85 cases.
The Home Adviser said the National Coordination Committee has so far filed 512 cases against 222 persons. Of them, 97 people have been convicted in 152 cases. Besides, 228 cases have been filed against 108 people and another 187 complaints against 35 people are currently under investigation. It submitted that allegations of faulty probe and weak charge framing led to such large-scale bails in the graft cases are not correct. The accused persons were slipping through legal loopholes. This news is very alarming for the nation.
We need to amend the ACC laws and rules to make them vibrant, concise and transparent for fair and speedy trials of corruption cases. During the hearing of a case, an HC bench also recently told an ACC counsel that the commission's laws and rules should be changed. The provisions for submitting the enquiry report within 30 days of assigning the ACC official and the investigation report within 60 days of filing of the case are unnecessary for the trial. There is also no necessity of the provisions for issuing gazette notifications for appointing investigation officers and issuing wealth statement notices upon women and children charged with abetting and aiding the principal accused. These provisions should be repealed or amended in order to make the law dynamic and concise for fair and speedy trial of corruption suspects.
According to the ACC law, its officials have to take approval from the commission for filing any graft case. ACC rules also say that anybody can file graft cases against any corrupt person with the police station concerned but the investigations will have to be conducted by ACC officials. These provisions of the ACC rules are contradictory. There is a provision for submitting investigation reports within 60 days after filing of the cases but the ACC rules do not clarify what the consequences will be if the investigation report is not submitted within that period.
Corruption suspects have been taking advantage of this provision and getting release from the High Court in the cases filed against them. The present Caretaker Government, in waging war against corruption, should not compromise with the misdeeds and proven corruption, which would be contradictory to the sprit of the formation of this interim government, which was widely supported by all walks of people of the country for their anti corruption drive. Senior intellectuals of the country cautioned that mass suspending & withdrawal of cases, granting bails and other government initiatives could be developed a pavement to escape the original corrupts from the box of law. Therefore, the present Caretaker Government should take effective steps to amend the ACC laws and rules to make them vibrant, concise and transparent for fair and speedy trials of corruption cases.
(The writer is a Barrister of the Honourable Society of Lincoln's Inn. He is working as a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm. He is also an advocate of the Supreme Court of Bangladesh) |