Parole politics and legal questions
It looks like the hapless BNP has now stepped into a trap of parole politics. There is no prevailing law of the land for the approval and management of parole. It all lies in the hands of the home ministry and is subject to changing polices. And so the ruling party leaders and ministers can make sweeping statements at their own sweet will about the parole of an ailing politician over 70 years of age. Having been in power for 12 consecutive years, they think nothing of making jokes and snide remarks about the issue. Given such circumstances, it looks like BNP is falling into the snare of parole politics, just as it did about political movements and elections.
Parole is nothing new in politics. There have been two grounds for granting parole in Bangladesh. One instance was humanitarian and the other was political. BNP chief Khaleda Zia was granted parole in the past on humanitarian grounds. During the rule of the Fakhruddin Ahmed-led caretaker government when she was incarcerated along with the present prime minister, side by side in the same building, she had been released on parole when her mother passed away. And those who had been released on parole politically are the present prime minister and Khaleda Zia’s elder son Tarique Rahman. The caretaker government at the time granted them parole as part of a condition to create an environment conducive to Awami League and BNP participating in the December 2008 elections. Those who have an inkling of politics behind the scenes, are aware that no lofty speeches had to be delivered to get this parole, it was a result of political pressure. In post-independence politics there are instances of parole being granted for medical treatment. For instance, JSD leader ASM Abdur Rab had been released on parole to go to Germany on treatment.
Ironically, while the son was granted parole so easily for treatment, it is proving to be much more difficult to grant the mother the same. The government was under pressure at the time to release the son on parole, but the present government is free from any such pressure. Then the parole had been settled behind the scenes, but at present, even open negotiations are yielding no result. From the looks of it, as a politician Khaleda Zia does not seem to have any fear of facing death in prison. It is the others within her party who are all flustered and making a mess of things.
When the ruling party leaders say she must apply for parole only after admitting her guilt, it is easy to judge whether the matter is humanitarian or political. The question is, what are the legal provisions regarding parole? Who has the authority to grant parole? Is it up to the government or the court? Strange though it may seem, there are no specific laws in this regard based on which the government and the opposition BNP can sort out their differences on the issue.
There are specific mentions of parole in the 2010 law drawn up for the Border Guard Bangladesh and in the 2016 Coast Guard act, but those only apply to members of those forces. As there are no specific laws related to parole, possible interpretations can be found in two other laws, The Probation of Offenders Ordinance 1960 and The Prisons Act 1894. The government’s latest update on its parole policy was made on 1 June 2016. The past references in this update are on 3 March 2010 and 22 September 2007. But there is no mention on the basis of what law has this policy been framed.
The government’s latest parole-related policy states that if a close relative of the prisoner dies, then parole will be granted for a specified time. The district magistrate will be considered as the authority to grant parole. However, this directive also mentions that outside of a close relative’s death, the prisoner may also be released for a specified time on parole upon court order or in accordance to a special decision by the government. The time for the parole period will be determined by the question of security and distance, and the prisoner will be constantly under police watch. Another significant point of this rule is that while the parole period will not be more than 12 hours, the government has the right to extend or shorten this period. Though it is the home ministry’s jurisdiction to fix the time span of the parole, there are no conditions where the prisoner has to admit guilt. So when the ministers maintain that parole may be granted if guilt is admitted, then it is quite natural for their opponents to castigate them for such statements.
If the probation ordinance is to be followed, only the court has the authority to impose conditions, not the government. When the verdict of the case under this law is declared, the trial court or, when an appeal if filed, the Supreme Court can release the convicted person on certain conditions. While free, the convicted person must adhere to those conditions and a probation officer ensures that these conditions are carried out. Other than in the case of someone sentenced to death, any woman has the right to be released conditionally under this law. It is clear that due to the political nature of the case, this was not feasible by the trial court. But Khaleda Zia should still have the scope to appeal for this in Supreme Court. The decision to grant probation is solely in the hands of the judge, not the government. BNP has long been bringing about allegations concerning the independence of the judiciary, particularly with regard to the cancellation of Khaleda Zia’s bail, so their wavering confidence in the court is not surprising.
It is also true that the probation act has not been commonly applied by the court in Bangladesh. The matter has been discussed by former Supreme Court judge Imman Ali in ‘Development and Use of the Probation System in Bangladesh’, a publication of the Bangladesh Legal Aid Trust (BLAST) and Penal Reform International (PRI). Justice Imman Ali observes that probation is rarely granted in the courts probably because of the propensity of the judges to impose punishment.
The Prisons Act, about 125 years old, provides the government, in at least three instances, the authority to shorten the sentence of a convict or grant advance release. It would not be unjustified to feel that the ministers may interpret this law in their own ways. With power in the hands of the government, that is only expected. It is also not surprising for this law to be used politically. In Article 59 sections 5, 7 and 9 of the Prisons Act, the government is given full authority regarding the assessment of behaviour and shortening sentences, defining the circumstances and regulating the conditions under which prisoners in danger of death may be released, and confinement of prisoners to certain classes in prison. Undoubtedly many hardened criminals have been released by the government, armed with this authority.
It is not clear how certain quarters within BNP even imagine that the ruling party will be sympathetic towards its political opposition when it comes to granting parole, given the government agenda and attitude. The party stepped into an open trap when it took up any anti-government movement and made things worse by the unrest during the election. It is evident that they do not have a clue as to when to participate in the elections and when not to so. When the ruling quarters needed to made the election seem participatory, BNP enthusiastically rushed forward to give the by-elections and the local government elections legitimacy despite receiving no leeway whatsoever. And now it seems that the party is once again stepping into a trap, this time over the parole issue.
* Kamal Ahmed is a senior journalist. This column appeared in the print edition of Prothom Alo and has been rewritten in English by Ayesha Kabir.