Justice Shamsuddin Chowdhury Manik

It was learnt from various print and electronic media reports on August 28 that pro-BNP lawyers resorted to a despicable ruckus following a High Court’s directive to Bangladesh Telecommunication Regulatory Commission (BTRC) to remove statements of absconding BNP leader Tarique Rahman’s statements from social media. Two learned judges of the High Court bench were forced to leave the courtroom in the face of pro-BNP lawyers’ unruly behaviour that includes throwing of file and papers at the judges.

Apart from the 2011 incident, pro-BNP-Jamaat lawyers have been constantly resorting to such villainy in the Supreme Court premises and even inside the court.

According to the latest news report, BNP-Jamaat lawyers kept the court room occupied for the entire day due to which no work could be done in that court for the rest of the day. As a result, many justice seekers were deprived of getting justice. Ironically, it is the BNP-Jamaat lawyers who often trigger a storm in a teacup or complain to their foreign masters about democracy, independence of the judiciary and rule of law.

The case has been filed seeking an order to stop broadcasting of Tarique Zia’s speech on social media as well as traditional media, who is a fugitive and sentenced to life for murder. This case has become necessary as the statement of this absconding accused has been being circulated in various media for the last couple of years. Dissemination of the statement of an absconding accused is not only illegal, but also a punishable offence.

According to the definition given in the world’s leading Black’s Law Dictionary, “Outlaw is 'a person who is not entitled to the benefits and protections provided by law, a habitual criminal, especially a fugitive.” It is clear from the Black’s Law Dictionary definition that fugitive convicts cannot enjoy any of the protections or benefits guaranteed by the law. This provision is common in almost all countries of the world, due to which a representative or a lawyer cannot appear before any court or authorities while he is on the run. Simply put, an outlaw is an invisible person in the eyes of the law. As an invisible person, his speech cannot be aired or published.

No one is a party to this case except Tarique Zia and some state officials. As Tarique Zia is absconding, no one can appear in court on his behalf. Despite this, some BNP lawyers appeared in court unfairly and illegally to speak for Tarique Zia only to disrupt the court proceedings. As they are not the advocates of any party in the respective case, the court cannot give them an opportunity to speak.

Moreover, according to Article 39/A of our Constitution the right to freedom of expression has been given to such a person who has a visible entity; it is certainly not for a fugitive or an invisible person. To give a fugitive this liberty is to help him to exist as an absconding convict. The right conferred by Article 39 cannot be exercised for inciting crime or contempt of court. Both of these prohibitions apply to an absconding convict, because his right to exercise freedom of speech means helping him continue to remain at large and disrespect the court. There is a court order for him to surrender.     Apart from that only the citizens of Bangladesh can enjoy the rights given in Article 39. Competent authorities have informed long ago that Tarique Zia, a convict who is absconding abroad, has been deprived of Bangladeshi citizenship.

According to Section 52/A of the Penal Code, it is a capital offense to assist a fugitive. The accomplice could also be jailed for life for helping Tarique Zia remain a fugitive. According to the relevant section of the Penal Code, “Giving shelter means providing accommodation, food, drink, money, clothing, arms, transportation, or in any other way not specifically mentioned in this section.”

Therefore, the definition of the word ‘giving shelter’ is very broad, that means ‘acts which are not specifically mentioned in the said section’ can also be included in the definition of ‘giving shelter’. In that sense the publishers of Tarique Zia’s speech are also guilty under Section 52/A of the Penal Code. To create confusion in the public mind, pro-BNP lawyers told the reporters that they have petitioned the Chief Justice that they have no confidence in this bench. This is so ridiculous that no lawyer can say such nonsense. Such an application to the Chief Justice can be made only by a person who is a party to the case concerned. No alien can make such an application. It was learnt that a lawyer had made a plea of affiliation of one of his unspecified clients. The application was rejected by the concerned court on very logical and legal grounds.

The subject matter of this case is not something that can be said public interest litigation. There is only one issue here— as Tarique Rahman is a fugitive, whether his speech can be aired or not. So, there can be no interest of another person in this matter, which is called locus standi in law. Such type of application means deliberate wastage of valuable court time, for which these lawyers can be brought to book.

Moreover, an application has to be made through a legal process to the Chief Justice. After being rejected in plea of affiliation, they could have appealed in the Appellate Division, but they did not do it because they, most probably, knew that the Division would express anger for such a meritless petition. So they later demanded no confidence on the concerned court for creating a smokescreen. The Court has not passed any order for which no confidence can be expressed. By rejecting a completely meritless petition, the Court followed the dictates of law. The patience shown by the court during this case is unprecedented. In 2011, when they created chaotic situation on my bench, I immediately called the police and handed them over in order to protect the dignity, independence and absolute authority of the court. Tolerating such masochism would have not only undermined the independence of the judiciary, but also undermined the rule of law, the sovereignty of the Constitution and democracy. So there was no option but to take legal action against these hooligans. They have not only committed contempt of court, but have committed more serious crimes. To let them go would have been to condone lawlessness. The Bar Council has to fulfil the responsibilities assigned to them. Remember, if the dignity and authority of the court is destroyed, nothing will be left; even the lawyers who are doing hooliganism will also loss everything.

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The writer is former Justice

of the Appellate Division of

the Supreme Court