“Let’s throw away the constitution” -- this is how a leading jurist of the country voiced his concern over the state’s current attitude towards the rule of law in the country, at a roundtable on militancy.
Let alone the jurist Shahdeen Malik, almost all of the discussants ranging from security analysts to rights activists who spoke there, underlined the urgency of upholding people’s fundamental rights by ensuring the rule of law, irrespective of circumstances, with an observation that absence of the rule of law, basic rights and truly democratic polity, create grounds for militancy.
Echoing other discussants, security analyst ANM Muniruzzaman called on the home minister who was present as chief guest, to not kill the militants in crossfire. “You should not kill all militants in shooting. You must not break the rule of law.”
The discussants, either knowingly or otherwise, did not, however, raise the issue of politicisation of the trial process or anti-terrorism drives which, one may point out, is a primary threat towards establishing order in our society.
Shahdeen Malik has raised a pertinent question as to what would be the difference between ‘us’ and ‘militants-and-war-criminals’ if we don’t give a damn about the rule of law like the ‘militants and war criminals’.
There is a common quote in the criminal justice system that it is better that ten guilty persons go free than that one innocent person be convicted.
The question is why this notion is accepted as a norm in the justice system. May I humbly argue, it is not only for ensuring rights of even criminals but, more importantly for upholding the rights of the innocent. It is perhaps feared, lest punishment of a single innocent creates deep grievances in his heart, paving the way for him to be the lone-wolf terrorist in the society.
Needless to say, when you have a politically motivated target behind any effort, you will not get desired outcomes.
You need to ensure justice, not wild justice. You will have to establish the rule of law, not the law of the jungle, in order to make sure that society is made and remains civilised, for which the system of law was introduced and being practiced in all societies of all times down the history of human civilisation.
You have to be honest, you have to be impartial. These are the lessons of history and that’s why a saying of Martin Luther King, who throughout his life struggled to ensure equality, “injustice anywhere is a threat to justice everywhere,” has been the epitome of the justice system worldwide.
Shahdeen Malik referred to the Universal Declaration of Human Rights adopted back in 1948 which stipulates that no circumstance can be taken as an excuse to take away people’s fundamental rights.
This declaration was not adopted, for sure, out of blinkered parochial views; rather taken after well-thought-out deliberations of experts from across the nations, creeds, and religions with an aim to ensure rights for human persons of all sections.
So, thinking that upholding the values of the declaration as well as upholding the constitution we made will not bring about required benefits towards combating terrorism or any other social ills and vices is nothing but foolhardiness or arrant ignorance, or an excuse to find ways to gain benefits for those in power.
Even for the sake of argument, if we assume that we don’t require upholding the constitution or laws in certain cases, the question arises, naturally, that human civilisation has failed to so far find a set of apposite laws to deal with those cases. Are the things so? Not at all, for sure.
A parochial approach towards ensuring justice will never serve the purpose as suggested by economist Amartya Sen in his book “The Idea of Justice”.
The history of law is the history of human civilisation. It is said that how far a society is civilised is mirrored in the application and usage of laws in that particular society.
The legal system evolved from the need to tame wild justice that was tearing apart early civilisation.
In reference to the government’s response to the rise of militancy, Shahdeen Malik termed them “high-handed ones”.
He went further on saying, “We have forgotten law. We have stamped out law by taking high-handed measures. Applying our short-sighted thinking, we are throwing the constitution into the dustbin. If we drop the constitution, then we should do it openly with declaration. There is no need to do so furtively.”
So, when a jurist like Shahdeen Malik who has earned rare respect from rival sides of political divides, says that we have stamped out the law, we’ve thrown away the constitution, the mother of laws, it makes us worried whether we are de-civilising ourselves and our society.
Abu Taib Ahmed is a senior journalist @Prothom Alo English. He can be contacted at taibahmed@yahoo.com