High Court orders govt to explain truth commission legality

Staff Correspondent, NewAge, 29, 2008

The High Court on Thursday issued a rule on the government to explain in two weeks why the Voluntary Disclosure Ordinance 2008, under which the Truth and Accountability Commission was formed on July 30, would not be declared illegal and void.

The High Court bench of Justice Khademul Islam Chowdhury and Justice Mashuque Hosein Ahmed passed the order after hearing a public interest litigation writ petition filed on August 25 by Supreme Court lawyer Adilur Rahman Khan, women’s organisation Nari Grantha Probartana executive director Farida Akhter, physician-turned-politician Dipu Moni and rights organisation Odhikar’s acting director ASM Nasiruddin Elan.

The secretary to the president, cabinet secretary, law secretary, home secretary, truth commission chairman and the Anti-Corruption Commission chairman were asked to come up with the explanation.

The military-controlled interim government on July 30 formed the truth commission to let people voluntarily admit to their corruption, deposit ill-gotten wealth to the state exchequer and get mercy.

The commission was formed in accordance with the Voluntary Disclosure Ordinance 2008, promulgated on June 5.

The petitioners’ counsel Tawfique Nawaz argued the promulgation of the ordinance and the formation and functioning of the commission were unconstitutional as the commission was formed as an alternative to courts to try corruption suspects.

The preamble and some other clauses of the ordinance said the government had promulgated the ordinance (on June 5) to ‘remove corruption’ by means other than criminal trial and to reduce the burden of trials upon the state.

Referring to the ordinance, the counsel said that the objective of the ordinance was contrary to the constitutional provisions.

According to the constitution, an alleged offender can be punished after a fair trial by a competent court or tribunal and there can be no alternative to courts or tribunals for trial of a criminal offence, the petition said.

The commission set up under the ordinance is neither a court nor a tribunal established by any law, Tawfique argued, adding, ‘Even the Supreme Court has ceased to have its supervisory authority, granted by the constitution, over the decision of the commission.’

Opposing the petition, the attorney general, Salahuddin Ahmed, argued the commission was not an alternative to courts.

The ordinance was made and the commission was formed only to let corruption suspects voluntarily admit to their corruption, deposit ill-gotten wealth to the state exchequer and get mercy.

Neither the ordinance nor the commission has put any person on compulsion or under pressure of going to the commission, rather any person can admit to their corruption voluntarily to get mercy, the attorney general said.

Tawfique argued the ordinance was made in violation of the constitutional provision of ‘equality before law’ as the ordinance empowered the commission to pick and choose corruption suspects for mercy.

Discrimination against individuals is contrary to Article 27 of the constitution that guarantees equal rights before law, he pointed out.

The ordinance empowers the commission to order confiscation of money commensurate to the amount earned illegally and such confiscation results in barring the person concerned from contesting election to a public office or companies, Tawfique said. ‘This is, for all purposes, a conviction and sentence and such authority to punish a person by the commission is inconsistent with constitutional provisions for trying an offender by a court of law.’

Section 29 of the ordinance says the commission can seek assistance of the judiciary in consultation with the Supreme Court and the judiciary is under legal obligations to assist the commission.

Referring to the section, Tawfique argued it was against the basic structure of the constitution as an independent judiciary was to ensure a fair trial and not to follow the instruction of or to assist any statutory body.

According to the constitution, an ordinance requires to be placed in the immediate next session of the parliament while the Voluntary Disclosure Ordinance has been made and the commission launched for a five-month period and that will expire before the next general elections, he contended. The ordinance and the commission are ‘illegal’ as the ordinance cannot be placed in the parliament for ratification, Tawfique argued.

He also challenged the authority of the interim government to promulgate such an ordinance as it had provisions related to policy decisions of the government beyond the jurisdiction of a caretaker government and the ordinance was neither related to holding of elections nor to the regular functioning of the government.


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