Archive for the ‘Truth and Accountability Commission’ Category

More reasons than one to disband truth commission

September 5, 2008

Editorial, NewAge, September 5, 2008. Dhaka, Bangladesh

THE Truth and Accountability Commission, installed by the military-controlled interim government for a few months to allow some people to admit to their corruption thereafter absolve themselves of their wrongdoings, is, as expected, proving to be by and large ineffective. First, there is already a writ petition with the High Court challenging the legality of the commission which has cast a shadow over its activities. Second, only 18 parties have thus far availed the services of the commission, admitting to irregularities of about Tk 5.7 crore and promising to deposit the sum with the exchequer in return for pardon. These 18 are mostly government officials whose ill-gotten wealth was accumulated through bribery. However, it must be remembered that one of the main reasons for the establishment of this commission was to allow businessmen to avail the opportunity to admit to their wrongdoings, pay fines and thereby avoid prosecution. This would, it was hoped, provide a signal to the market that the incumbents are willing to facilitate business activity which in turn would infuse more dynamism and vibrancy into the stagnating economy. This has obviously not happened as the business community has altogether shied away from availing this facility. According to reports, even the chairman of the commission did not sound upbeat as far as that objective was concerned since most of the people taking this opportunity were bureaucrats and not businessmen.
   

Also, politicians accused of similar wrongdoings are not allowed to avail the same facility as businessmen and bureaucrats. This is arbitrary, duplicitous and unlawful. There cannot be two sets of laws or rules for two different groups of people for the same crimes, and as such, the actions of this commission are contrary to the spirit of the rule of law and justice. Moreover, there cannot be any forum or body to deal with criminal offence other than the judiciary according to the constitution. It is the incumbents’ contention that the commission would reduce the burden of the court system and expedite some cases. However, that stance is not acceptable since the constitution quite unambiguously stipulates that the judiciary is the only competent body to dispose of criminal cases. As such, this commission is at best a vigilante initiative.
   

Considering that the Truth and Accountability Commission has not only failed to attain its desired objective but is also contrary to the constitutional provisions and the spirit of the rule of law, we see no reason for it to continue to exist. The incumbents would do well to dismantle it and allow the law to take its own course in cases of financial corruption as with any other criminal offence.

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Truth and Accountability Commission (TAC) relevance in question

August 30, 2008

Staff Correspondent, NewAge, August 30, 2008

The Truth and Accountability Commission appears to have missed its prime mission to put the country’s economic and industrial development back on track as it has found only two businessmen appealing for mercy.
   

The commission started its operation early this month with high-sounding pledge to allow graft suspects to voluntarily admit their guilt, surrender ill-gotten wealth and get clemency.
   

Though swamped by mercy petitions from officials of utility agencies and other government departments, the commission only received two petitions from the business community, prompting it to extend the deadline for receiving applications by one month.
   

The TAC has so far received records of about 182 cases, filed against 184 people, its chairman Justice Habibur Rahman Khan said at a press briefing in his Hare Road office on August 27, four days before the first deadline expires.
   

Most of the case files involve graft charges against officials of the Rural Electrification Board, Bangladesh Telecommunications Company Ltd, Roads and Highways Department, Titas Gas Transmission and Distribution Company Ltd, Dhaka Electric Supply Authority, Department of Land Registration, Forest Department, Chittagong Port and Bangladesh Road Transport Authority.
   Considering the poor response from the graft suspects especially the businessmen, the commission has extended the deadline until September 30.
   

The TAC chairman on Friday told New Age that they were hopeful that businesspeople would avail of the extended deadline and come up with clemency appeals.
   Economists and business leaders, however, expressed their doubts about the response to the extended deadline as the High Court on August 28 questioned the legality of the Voluntary Disclosure Ordinance 2008, which gave the basis of the TAC.
   

They termed the TAC as a ‘futile exercise’ as they felt no sensible businessman would risk being stigmatised by voluntarily admitting financial crimes at a time when many high-profile politicians with graft charges are getting bail from the High Court and the country’s politics is heading for a different shape.
   

They said that the commission, formed on July 30 only for five months, could hardy bring any improvement in business and investment climate, which is reeling from erosion in business confidence due to crackdown against corruption and tax evasion.
   

Some of them, without being quoted, even said the commission was put in place to save newly corrupt people and those who amassed huge wealth through shady means but enjoyed blessing from the powerful people.
   

‘It [TAC] is no more necessary because concerned people are reaching compromise and getting remedy beyond the purview of the commission. It has only added another farcical chapter to the history of governance here,’ said Anu Muhammad, a professor of economics at Jahangirnagar University.
   

Bangladesh Institute of Development Studies research director Zaid Bakht pointed out that the commission was formed at a wrong time. ‘Businesspeople now prefer waiting to see what happens after the elections as the situation on the political front and judicial arena looks fluid,’ the economist said.
   

‘It lacks credibility in absence of a political consensus about its formation and functioning. Giving it only a five-month term raises questions in the minds of many,’ said economist Atiur Rahman, chairman of research organisation Shamunnoy.
   He explained that businessmen too did not find confidence in seeking mercy from the commission, despite repeated assurance from the TAC chief that names would never be made public.
   

The business community, which earlier preferred formation of such a commission to give amnesty to some of them and bring back business confidence, now believes that the commission is of no use for them as it does not guard them against future actions by the anti-corruption or revenue watchdogs.
   

‘Why will they [a section of businessmen] take the risk of being branded as corrupt for the remaining part of their life? Most people are finding the High Court as safer place and they are getting justice there,’ said Annisul Huq, president of the Federation of Bangladesh Chambers of Commerce and Industry, analysing the reasons behind the businessmen’s reluctance to go to the TAC.
   

In view of poor response from the businesspeople to seek TAC mercy to avert harsh legal measures, it seems that the commission itself is losing its relevance and potentials, the top business leader pointed out.


‘I think that a kind of critical social behaviour has been reflected here. No one wants to be socially identified as guilty,’ said Anwar Ul Alam Chowdhury Parvez, president of the Bangladesh Garment Manufacturers and Exporters Association.
 He also observed that the commission had confused the people by coming into operation in a wrong context.
   

Aftab Ul Islam, former president of the American Chamber of Commerce in Bangladesh, said the poor response to the commission’s mercy offer indicated that the concept of the government had totally failed in this regard.
 ‘Obviously, no businessman will like to have a tag and risk his/her career,’ he said, describing the formation of the commission as one of the biggest mistakes of the present government.
   

One of the fundamental objectives of the commission was to bring back normalcy in business activities and instil confidence in investors.
   

‘Under the circumstances, existing businessmen and new investors will definitely hesitate, no matter he or she is corrupt or not,’ said Zaid Bakht.
   

Anu Mohammad said the truth commission was not an effective tool for channelling ill-gotten wealth into the mainstream economy and productive activities in absence of the proper institutional mechanism, and the commission was also not geared to that job.

High Court orders govt to explain truth commission legality

August 29, 2008

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.

Legality of Truth Commission challenged in High Court

August 29, 2008

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.

Truth and Accountability Commission to be formed within 10 days

July 24, 2008

Staff Correspondent, NewAge, July 24, 2008. Dhaka, Bangladesh

The interim government is going to form the ‘controversial’ Truth and Accountability Commission to let people voluntarily admit their corruption, submit their ill-gotten wealth to the exchequer and seek mercy within ten days.
   

‘The commission will be formed within seven to 10 days…It will begin functioning immediately after its birth,’ law adviser AF Hassan Ariff told reporters at the secretariat on Wednesday.
   

A retired judge of the High Court Division, Justice Habibur Rahman Khan, may be appointed chairman of the commission, said sources.
   

The law adviser, however, refused to give details of the persons to be included in the commission.
   

On May 25 the council of advisers at a meeting approved the proposal for setting up a body called ‘Truth and Accountability Commission’ under the Voluntary Disclosure Ordinance 2008 to deal with corruption.
   

Politicians have termed the move a ‘travesty of justice’, saying it proves that the government has bowed its head to high-profile corruption suspects. But the government defends the decision and says that it wants to eradicate corruption.
   

Besides launching the anti-graft drive, targeting mainly the politicians, the government has been considering formation of the commission, hoping that many people with ill-gotten wealth will confess to their crimes to take the advantage of the provision that they will not be punished.
   

According to the ordinance, the commission will exist for only five months but the proceedings it initiates during its tenure will continue until disposal of the cases, said one of the framers of the ordinance.
   

The proposed commission will be composed of a chairman, preferably a retired judge of the Supreme Court, and the two other members will be selected from persons not below the status of a retired major general of the armed forces or a retired secretary to the government, or someone who is widely acknowledged to be an eminent citizen.
   

Persons willing to voluntarily disclose their ill-gotten wealth will be exempted from prosecution and imprisonment, subject to surrendering the property or the corresponding amount of money to the state exchequer, according to the proposed law.
   

The person must apply to the commission for mercy in a prescribed form, giving details of his/her moveable and immovable properties and other information.
   

A person already charged with corruption, or convicted in a case, will not enjoy the benefit of the provision, according to the draft.
   The commission will have the authority to summon any persons believed or found to be involved in corruption on the basis of such disclosures. It will also have the authority to confiscate their ill-gotten wealth.
   

The commission will not generally sentence anyone after disclosure of his/her corruption to any prison term. But violation of the commission’s directives will constitute an offence punishable with imprisonment for a maximum period of five years.
   

Persons disclosing their corruption will be debarred from national or local elections, holding any public office or executive positions in any collective bargaining agencies, associations or banks or financial institutions for five years.
   

The ordinance makes a provision for giving information about others involved in corruption, and the commission can launch an investigation on the basis of the information.
   

The government launched a crackdown on serious crimes and corruption in February 2007 and detained more than 200 high-profile suspects, mostly politicians from the two major parties — the Awami and League Bangladesh Nationalist Party.