Court for justice, not for administration

Mizanur Rahman Khan | Update:

 If governance is riddled with problems, there is hardly much that the judiciary or other state organisations can do. The High Court has recently been issuing directives concerning public interest issues and the people have responded positively.

It is the responsibility of the executive to deal with the administrative issues. The parliament is supposed to make the executive accountable. However, political actors in Bangladesh are probably forgetting the meaning of joint accountability of the cabinet.

The judiciary exists for justice. It is not there to assist the functioning of the administration.

The concept of public interest litigation (PIL) has gained popularity in many countries. Public interest litigations have become popular in this subcontinent including India due to the administrative failures. There may be some exceptions. It is generally acknowledged that PIL is not frequently used in developed democracies.

Back in the eighties, PIL was recognised in the Supreme Court of Bangladesh over an environment-related case. Afterwards, similar public interest litigations gradually gained currency. However, some fear that PIL may be misused.

Of course we have some achievements in certain cases of public interest. But it is also proved that the rule of law never goes far in the country where the executive is run by depraved politics.

Political actors may pretend to respect judicial activism. Under pressure, they talk about the independence of judiciary and so on, but react sharply if compelled to do what they are not willing to do. Dysfunctional circumstances emerge when the government, the parliament and politics are not ready to accept the rule of law.

The judiciary was separated from the executive in the Masdar Hossain case. But evidence indicates the judiciary is gradually losing its spirit although the separation took place during the government of 1/11. The executive is indirectly taking away many powers of the judiciary. The lower courts were established as per the constitution, but issues like the status of judges, mobile courts or contempt of court, were not settled as the executive does not want any such settlement.

The verdict relating to the status of judges has been stalled while the hearing is slow on the rule challenging legality of the mobile court.

The contempt of court act says bureaucrats cannot be produced before the court if it is not possible for them to abide by the orders of the High Court. A judgment has been passed annulling the contempt of court act. But the full verdict has not been given even in the last three years.

The recent issues widely discussed in the media, include compensation for road accident victims, prevention of food adulteration and activating ACC. Bangladesh Bank’s circular backing the defaulters was also stayed by the HC, and it was widely discussed.

People are harrassed in many ways due to the failure of the administration. Concerned organisations are controlled by laws. Every organisation has laws, human resources and budgets. Despite having all this, they lack the ability to function. They have become dysfunctional. Judicial activism cannot be meaningful if there is a lack of political will.

Default loans are a burden to our economy as our politicians had no will to stop this. It is linked to patronising corruption. The HC had stayed the list of Bangladesh Bank before the list of 300 persons and organisations was published on 14 June. The influential persons mainly compelled the government to issue a circular so that the defaulters can reschedule their classified loans by making a down payment of only 2 per cent.

Communications minister Obaidul Quader told the parliament that 25,000 people were killed in road accidents in 10 years. As per the law in India, the claims tribunal gives 50,000 rupees to the family of a deceased and 25,000 rupees to a person injured in a road crash. This amount of money has been fixed by the law. Former minister and transport leader Shahjahan Khan wanted to give Tk 30,000 to a family of the deceased. As per that estimate, the families of the deceased are due to receive Tk 750 million (Tk 75 crore). In some indexes of development, we have crossed India. If the value of an Indian citizen is 50,000 rupees, the cost of a Bangladeshi should be the similar.

According to a Prothom Alo report, 25,000 people were killed in road accidents between 2015 and June 2018. Some 62,000 people were injured during the period. The road accidents caused losses of around Tk 400 billion (Tk 40,000 crore) annually, which is around 2 per cent to 3 per cent of the Gross Domestic Product (GDP). However, the parliament recently disclosed that some 25,000 people were killed in the last one decade. Had we formulated a law like that of India, the families of those, who died in road accidents in three and half years, would have received Tk 1.50 billion (Tk 150 crore) and the injured Tk 1.56 billion (Tk 156 crore).

The government has not provided any compensation, and it also abolished the ineffective law in this regard. In the new law, the government has kept a provision to form a trustee board, cancelling the claims tribunal which was in the law of 1983. As the rule is not yet framed, the trustee board is yet to be functional. Since 1988, the HC ordered significant compensation in 10 cases. Except in two to three cases, most of the compensation was not realised.

Now-a-days we say a probe commission has to be formed to investigate how many probe bodies were formed and how many reports were not published. It is time to make a list as to how many orders of the High Court were rejected by the government. Those who defy the orders of the High Court feel ‘embarrassed’ if they are summoned. For this they added a provision in the contempt of court act that cases will not be filed if the orders are not complied.

Some 52 adulterated food items were recently banned, but adulteration has not reduced.

The HC issued a number of orders including banning motorcycles on the footpath, freeing footpaths from illegal grabbers, conserving the historical site of Suhrawardy Udyan and banning hydraulic horns. Moreover, the HC ordered to stop mixing chemicals in fruits. It also ordered disqualification of river grabbers from contesting in the polls and from availing bank loans. But it has already been proved that the implementation of these orders is very difficult if the administration does not want to implement these.

*Mizanur Rahman Khan is joint editor at Prothom Alo. This piece, originally published in Prothom Alo print edition, has been rewritten in English by Rabiul Islam.

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