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Wednesday, February 13, 2013

[] Editor Mahmudur Rahman: a citizen deprived of justice

Editor Mahmudur Rahman: a citizen deprived of justice, basic human and constitutional rights
Barrister Nazir Ahmed
Mr Mahmudur Rahman is a man of principle, integrity and honesty.His bravery and uncompromising stance in the matter of truth have reached to such a stage that his name has now become a symbol of brave journalism in Bangladesh.He has become a role model for brave and honest young journalists in Bangladesh.Achieving such a status has not been easy for Mr Rahman.He had to undergo and tolerate incomparable threats, torture and harassment.It can now safely be said that no other journalists in the history of 42 years' independent Bangladesh have ever suffered such harassment and inhumane and degrading treatment that Mr Rahman has gone through.He was physically attacked at least three times, both at home and abroad.He was tortured in the remand days after days, weeks after weeks.His self written book named "From Jail to Jail" gives us a horrific picture of the inhumane torture and degrading treatment that he had suffered and received while he was in demand and jail.��
Mr Rahman suffered a lot in the lower judiciary of Bangladesh.More than fifty false and fabricated cases were filed against him.Almost all of those who filed cases against Mr Rahman did not have locus standi.A report, for example, could potentially be defamatory for a person like Sheikh Hasina, but how can a worker of Chhatra League of a remote thana of Kuri Gram have a locus standi to file a case against the reporter or editor?Furthermore, dozens of cases [in some cases, few dozen!] were filed for the same and similar matter.For example, a case was filed against Mr Rahman in Dhaka, on what authority/grounds, cases on the same and similar matter could be filed in different remote distracts of Bangladesh?The courts have surprisingly taken cognizance of those cases and issued summons [in some cases, warrants of arrest have been issued] against Mr Rahman.Taking cognizance of similar cases more than once is direct violation Article 35(2) of the Constitution which says: "No person shall be prosecuted and punished for the same offence more than once."Judicial process and justice delivery system must make sense and must not be made a joke.If those cases were filed in a developed country where there was rule of law, those cases would not have been entertained by the court.Instead, those who filed duplicate cases in the same and similar matter or file cases without proper locus standi would have been penalised for harassing, filing vexatious proceedings and wasting court's valuable time.
Not only in the lower courts, Mr Rahman has also been a victim of injustice in the apex judiciary of Bangladesh.�� When Mr Rahman was in most vulnerable position (while he was taken in prison for laughable and flimsy grounds), the apex court, instead of protecting his constitutional and inherent human rights, surprisingly started contempt proceedings against him in 2010 and sentenced him going beyond their legal boundary. Mr Rahman suffered injustice in the apex judiciary in following five ways:
Firstly:Mr Rahman was not given enough and adequate time to defend himself.The Attorney General's Office in few days got more than five hours to put their case against Mr Rahman, whereas Mr Rahman was only given 30-35 minutes to defend himself!Article 27 of the Constitution says "All citizens are equal before law and are entitled to equal protection of law."Was it the sign and example of equality before law and equality of protection?This was, no doubt, a partial and discriminatory approach taken by the apex Judiciary, which is against Article 28 of the Constitution ensuring non-discrimination.
Secondly: One of the established universal principles of law is that no one can be a Judge of his own case/matter.The subject matter/central person of the true report entitled "Chamber Judge means stay for the government" [based on which the contempt proceedings were instigated against Mr Rahman] was the then Chamber Judge.Therefore, he was disqualified to sit as a Judge in the hearing of contempt proceedings.Yet, he himself sited as a Judge of the six members penal in the Appellate Division of the Supreme Court.This was clear violation of legal norms and principle of biasness.By sitting as a Judge he has also violated Section 6(a) of the Code of Conduct for the Judges of the Supreme Court of Bangladesh, which says "The Judge shall disqualify himself or herself in a proceeding in which the Judge's impartiality might reasonably be questioned."
Thirdly: the maximum limit of the sentence for contempt case is six month imprisonment.The apex court has crossed their boundary and legal limit to punish Mr Rahman.No existing law allowed them to do what they had done.They have, therefore, violated Article 35(1) of the Constitution which, inter alia, says: "No person shall subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence."It appeared from the conduct of the Judges that they heard and punished Mr Rahman with anger and ill motives, whereas each and every Judge are oath bond to "faithfully discharge the duties of their office according to law."They are also oath bound to "do right to all manner of people according to law, without fear or favour, affection or ill will" [Third Schedule (Article 148) of the Constitution].Have the Judges of the then apex court maintained their oath?
Fourthly: the highest court of the land [the Appellate Division of the Supreme Court of Bangladesh] acted as the first instance court in the contempt proceedings instigated against Mr Rahman.As a result, Mr Rahman was deprived of any appeal rights.Furthermore, the apex court gave its judgement after Mr Rahman had served the sentence of imprisonment.As a result, he did not even get a change of applying for the judgement to be reviewed.���
Fifthly: on observing and analysing the contempt hearing and proceedings, it appeared that the Judges did not have proper judicial mind in hearing the contempt proceedings against Mr Rahman.They used offensive, objectionable and disrespectful words against Mr Rahman.For example, in relation to his qualification and profession, they commented with anger and ill motives, 'this (ai)' 'that (sai)', 'chance editor,' 'path finder' etc. These suggest that the Judges violated 3(3) of the Code of Conduct for the Judges of the Supreme Court of Bangladesh which, inter alia, says: "A Judge should be patient, dignified, respectful and courteous to litigants...."One of the Judges declared as "Truth is not a defence."It looked strange and surprising.�� In a newspaper's reporting, if truth is not a defence, what else could be?It is worth mentioning that in the apex court of Bangladesh the truth might not be a defence, but certainly in the hereafter when all human beings would be accountable to their almighty God, the truth and nothing but the truth would only be the defence!Mr Rahman obtained Engineering degree (BEng) and Masters Degree (MBA) from Bangladesh University of Engineering and Technology (BUET) and Institute of Business Administration (IBA), University of Dhaka respectively, the two leading and most prestigious universities of Bangladesh.He then obtained postgraduate diploma from Japan.In spite of having these shining qualifications, the learned Judges neglected him and his qualification and career.
Apart from the above injustices, Mr Rahman was harassed and tortured by the current government.He was arrested on false, flimsy and fabricated cases.After arresting he was taken into remand, kept in remand weeks after weeks and tortured inhumanely violating clear guidelines of the Supreme Court in relation to the remand.Why did the government do it?The reason was that Mr Rahman's popular daily published an allegation of corruption with appropriate proof and evidence which indicated that the government's high ups and family member of the government's high ups might have been involved.That's all.The government diverted all government/state machineries to harass Mr Rahman and take revenge against him.�����
Mr Rahman and his popular daily have recently played a brave and historical role in publishing the scandalous Skype conversation.People have right to know.So, the publication of the Skype conversation was of public interest.The former Chairman of the International Crimes Tribunal (ICT) Justice Nizamul Haque Nasim and Dr Ahmed Ziauddin, through their own actions, have made the whole judicial process of the ICT funny and laughable. They brought disrespect and disrepute on the apex judiciary of Bangladesh.Furthermore, they interfered with the course of justice and conspired to commit [judicial] murders of nearly a dozen of people. One does not have to be an expert to realise what disaster would have happened if those information were not leaked and published.Considering all these, Mr Rahman should have been appreciated for the brave role he played in exposing immorality, illegality and unconstitutionality.Instead of appreciating, the government has been trying to harass and torture him for putting the government in apparent embarrassing position, albeit for honest and brave journalism.Mr Rahman clearly said that he neither solicited for the information nor did he pay for the information.He received the information from a credible foreign source.The government has not yet set up any Inquiry Commission or Committee to make enquiry/investigation with a view to find out as to who copied and hacked Skype conversation.Yet Mr Rahman has been blamed for no apparent reason.A false sedition case was filed against him without following due procedure.He has been compelled to be stranded in his office for nearly two months.A High Court Judge, against whom Mr Rahman lodged more than 20 specific allegations/complainants to the President to refer the matter to the Supreme Judicial Council and which was then duly acknowledged, being overactive and over ambitious, issued rule against Mr Rahman and his newspaper.
Mr Rahman recently went to the High Court for anticipatory bail on sedition case/charge.Bail does not mean acquittal or discharge.Having heard few hours and after looking at the face of Attorney General, a Division Bench of the High Court observed that the matter was complex and advised Mr Rahman's counsel to go on to another Bench!Some legitimate questions could be raised: are bail matters so complex that a High Court's Division Bench cannot deal with?If bail matters are too complex to be dealt with by the High Court Judges, how can they be entrusted to deal with other complex legal or constitutional matters?If the matters were really complex, why did they hear it for more than two hours?Was there any pressure from the government and the Attorney General?If so and if, because of these, they diverted and avoided the matter, do they deserve to be in the High Court?By avoiding and referring, have the Judges not denied Mr Rahman to invoke Article 44 to enforce his fundamental rights guaranteed by the Constitution?��������
Finally, brave and honest journalist Mr Mahmudur Rahman has received grave injustice.He has been harassed and tortured.More than fifty cases have been hanging on the shoulders of Mr Rahman.He has been denied his fundamental and constitutional rights.He has been compelled to be stranded at his office for nearly two months.His freedom, liberty and human rights are at stake.Yet, Mr Rahman has not compromised with oppressors.We, as conscious citizens, should raise our voice against such injustice.
Barrister Nazir Ahmed: Legal expert, analyst, writer and columnist

**This was presented as a Key Note Paper at a Video/Tele conference with Editor Mahmudur Rahman where more than hundred professionals from diverse backgrounds attended.


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