Politics of bail and the government's role

A few years ago I was granted anticipatory bail by the court. The case had been filed under the notorious Digital Security Act. In this country, it is almost inevitable that the lower courts reject the bail appeals in almost all such cases and the accused has to spend a few months in prison before being proven guilty.

That is why, upon the advice of well-wisher, I had approached the High Court with all the due documents and got anticipatory bail. I breathed a sigh of relief only to learn a few days later that the state prosecution had placed an objection with the chamber judge of the Appellate Division of the Supreme Court, against this bail.

I turned up in court on the scheduled date to find that the attorney general himself was there, to cancel the bail against someone as nondescript as me! I was fortunate, however, that the chamber judge upheld my bail order.

Not everyone is lucky I had been. In cases against political opponents, this rarely happens. In many cases the chamber judge suspends the bail granted by the High Court and sends it to the regular bench of the Appellate Division. And that is what happened in the case of BNP's two top ranking leaders Mirza Fakhrul Islam Alamgir and Mirza Abbas a few days ago.

The two BNP leaders were not even named in the statement of the case in which they were arrested. Even then their bail appeal in lower courts was rejected several times. The High Court then granted them six months' bail.

We are aware that the Supreme Court has two divisions, the High Court Division and the Appellate Division. That means the High Court itself is an inseparable part of the Supreme Court. By appealing against the mere bail order of this highest court, the state prosecution has delayed by a few days at least the possibility of Mirza Fakhrul and Mirza Abbas' release.

If bail is not granted, they will have to remain in jail for an indefinite period even though their names don't appear in the case statement.

Those who understand the law and the judicial system should not find this tendency of the government to cancel bail, to be normal. We are aware that there is hardly any instance where the defendant goes to the Appellate Division if not granted bail by the High Court.

But when it comes to political cases, it has become a regular matter in recent times for the government (or state prosecution) to file appeal, if the High Court grants bail to the accused. The question is, what logic is there behind this? Where do they get such confidence to stand up against a bail order issued by the High Court?

There have long been allegations of interventions in the independence of the court and the lower courts not granting bail. But now the state prosecution is seen even making an effort to cancel bail in the highest court.

II

Bail does not free anyone of any charges. It is an opportunity to remain free and to take part in the trial process in that free state. In the criminal law drawn up during British times in our country, receiving bail in less serious cases is a matter of people's rights. It does not even bar granting bail in serious cases. In fact, it has directives to give due consideration to bail for the young, for women and for the ailing. Also, there are many precedents of bail being granted by the court if there is no possibility of the accused fleeing or disrupting the trial process or if the charges are apparently not well established. In countries with developed judicial systems, there is hardly any scope not to grant bail because that would be a sort of pre-trial punishment.

In the lower courts of our country, we see two trends regarding bail appeals in political cases. It has become a norm to reject bail appeals in cases against the opposition party or against those with differing views. On the other hand, it has become quite normal to grant bail immediately to persons of the ruling party even if the case is a serious one.

There is ample space for the question as to whether bail is granted on judicial considerations and due to government intervention. When the lower court rejects the appeal for bail, those with the ability turn to the High Court as the only place to get bail. Even after being given bail there, if the state prosecution approaches the Appellate Division against the bail, the defendant incurs more expenses and undergoes further suffering and harassment. Our constitution does not indicate that our Supreme Court was established to give such scope for suffering.

III

Our constitution places the High Court in high regard. Only in three types of situations has the right been given to appeal to the Appellate Division against a High Court verdict. These are verdicts pertaining to interpretation of the constitution, death sentence or life term imprisonment, and contempt of the High Court. In any other instance, the scope to appeal in the Appellate Division is only given of the Appellate Division finds the relevant writ justified. It is obvious that the authors of our constitution found it only justifiable to appeal in the Appellate Division against a High Court verdict in these three very important cases or cases of similar magnitude.

A bail order by the High Court is very minor in comparison to these instances. This order neither sentences anyone nor exempts anyone from punishment. If the state prosecution does not accept the High Court orders in such a minor matter, where does the honour of the High Court lie? The Appellate Division has only one tenth of the number of judges in comparison to the High Court. As it is there is a log jam of cases in the Appellate Division due to huge numbers of appeals against High Court verdicts. In such a situation, what is so urgent to appeal against bail granted in false cases and cases filed for harassment?

Let's go back to the case against Mirza Fakhrul, as an example. Over the last one decade, around 100 cases have been filed against him. He has stayed over 300 days in jail in all and was granted bail in many of the cases. There have been no allegations against him, even by the government, of trying to flee after getting bail or disrupting the trial or threatening the complainants in any way. Not only that, but his name isn't even in the case statement in the last instance. Two of the persons whose names were on the statement received bail immediately. But the lower court has repeatedly rejected Mirza Fakhrul's (and Mirza Abbas's) bail appeals. Serajul Islam Choudhury, Wahiduddin Mahmud, Abul Kasem Fazlul Haque and other eminent personalities respected by all, regardless of party or political leaning, have issued a statement, angered by incarceration of this elderly ailing politician.

Taking everything into consideration, the High Court finally granted him bail. Yet even after that, the attorney general's office went to the Appellate Division to appeal against this order. Can this be seen as anything else by a reflection of the government's twisted politics?

IV

According to the constitution, the attorney general's office is a constitutional institution. The attorney general and the law officials under him are law officials of the highest level of state. But there is scope for the process of their appointment and dismissal to be entirely a reflection of the government's wishes and so under various governments, they have been appointed and used in accordance to the ruling party's interests.

And we see one manifestation of this in the desperate efforts by the attorney general's office against bail for those with differing views and of the political opposition. Such efforts in political cases do not bode well for democracy, nor for the independent identity of the court.

* Asif Nazrul is a professor of law at Dhaka University

* This column appeared in the print and online editions of Prothom Alo and has been rewritten in English by Ayesha Kabir