Staff Correspondent, NewAge, August 26, 2008. Dhaka, Bangladesh
The legality of the Truth and Accountability Commission, formed on July 30 to let people voluntarily admit to their corruption and get mercy depositing ill-gotten wealth to the state exchequer, was challenged in the High Court on Monday.
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 filed a writ petition challenging the constitutionality of the Voluntary Disclosure Ordinance 2008, under which the commission was set up. The petitioners sought a stay order on the functioning of the commission as an interim measure and finally cancellation of the ordinance and termination of the commission.
The High Court bench of Justice Khademul Islam Chowdhury and Justice Mashuque Hossain Ahmed posted the hearing of the petition, moved by the petitioners’ counsel Taufique Newaz and Asaduzzaman, for today.
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.
The writ petition said that the objective of the ordinance was contrary to the constitutional provisions. According to the constitution, an alleged offender can be handed punishment after a fair trial by a competent court or tribunal and there can be no alternative to the courts or tribunals for holding 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, the petition stated adding, ‘Even the Supreme Court has ceased to have its supervisory authority, granted by the constitution, over the decision of the commission.’
The petition said that the ordinance was made in violation of the constitutional provision of ‘equality before law’, as the ordinance empowered the commission to pick and choose the graft suspects for awarding its mercy.
Discrimination against individuals is contrary to the article 27 of the constitution that guarantees equal rights before law, the petition 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, the petition said adding, ‘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 that 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, the petition said that it was against the basic structure of our 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 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.
The ordinance and the commission are ‘illegal’, as the ordinance cannot be placed before parliament for ratification, the petition said.
The petition also challenged the authority of the interim government to promulgate such an ordinance, as it had provisions relating 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.