I am no longer a young man and can no longer rush off to this meeting or that rally. But when it comes to programmes pertaining to victims of enforced disappearance, crossfire or the Digital Security Act, I make an effort to attend. I attended a gathering of victims of the Digital Security Act (DSA) around four months ago. Like in other instances, after hearing the statements made on that day too, I was repeatedly assailed by certain questions.
Most of the victims were arrested under this law because they had criticised the prime minister, ministers or Awami League leaders. Their bail petitions were repeatedly rejected. Some were granted bail after appealing seven or eight times. A couple of the cases were disposed of, but only after they spent months in jail before proven innocent.
They asked why they had to languish in jail though they had not committed any wrongdoing. For many of them, their studies, careers and sense of security had been shattered for life. How will this be compensated? Where can they go to for recompense?
After being arrested under the DSA, most of them had to seek bail through the costly judicial process of the High Court. The question is, if the High Court feels they are eligible for bail, why wasn’t bail granted earlier? There can be one answer to this. That is, the government can punish the judge of the magistrate courts through transfers, holding up promotions, turning down leave applications or inquiries aimed to harass them. The High Court judges have no such fear and so they can be more independent in their judgements and rulings.
Not only in the case of the DSA, but in the past we have seen the High Court Division of the Supreme Court granting bail, or even release, to persons arrested under various repressive laws like the Special Powers Act. Just a few years ago, when such orders were passed by the High Court, these were final. The state prosecution would not approach the Appellate Division of the Supreme Court to overthrow such rulings. And even if they did go, the Appellate Division would not entertain such appeals.
We see deviations from this too in present times. There are many incidents nowadays where bail orders or other rulings issued by the High Court in favour of dissenters, are held up in the Appellate Division. The state attorney general’s office approaches the Appellate Division against the bail order of the High Court, the inseparable organ on the Supreme Court. Based on these appeals, the High Court’s bail order is being stayed by the Appellate Division. This has happened repeatedly in the case of Khadijatul Kubra (Khadija), the Jagannath University student recently arrested under the DSA.
Without even being proven guilty, Khadija has so far spent the last eleven months in jail. A couple of months ago when the Appellate Division stayed her bail hearing, we saw her mother’s distress in the media. She lamented that like the roza Eid, her daughter would have to spend qurbani Eid behind bars too. In the hearing after qurbani Eid, the Appellate Division decided that her bail hearing would be held after another four months! Even then there is no guarantee that she will be granted bail.
II
Bail does not mean clearing one of charges. It is a conditional release before guilt is proven, a chance to attend the trial process accordingly. Not granting bail means punishing someone before trial. That is why in developed judicial systems, no one other than serial killers or grim terrorists is refused bail. In our laws too, nowhere is it written that bail cannot be granted to anyone. In this case, according to the criminal code drawn up during the British rule, bail in cases of less importance is a person’s right. The law does not even prohibit bail in serious cases either. In fact, it instructs that special consideration be given to the bail petitions of young persons, women and ailing persons. Under all of these considerations, Khadija should have been granted bail long ago.
When Khadija was arrested, she was only 17. Under the Children Act 2013, Section 4 and 40, she should have been tried at the juvenile court. As a young person, a woman and a kidney patient, she should have got bail anyway. There are even questions over the plausibility of the allegations brought against her. We have learnt from her lawyers that she did not make any seditious comments against the state. She was conducting a programme where someone residing overseas answered one of her questions, based on which she was arrested.
The Digital Security Act is one of the most repressive laws in the history of Bangladesh. Under this law, any dissenting voice can be misinterpreted and the accused persons sent to jail for years on end
We cannot comprehend on what consideration the High Court has once again stayed her bail petition. We know that one of the most important maxims of justice is, simply carrying out justice is not enough, it must be made evident to the people. It has become difficult to understand why an unwell student had to stay month after month in jail before trial, despite getting bail from the High Court.
III
The drafters of our constitution had said with pride that justice and human rights has been ensured by this constitution, there is no scope for black laws in it. They said that there was no need to fear that the people’s elected representatives in the future would enact any such law. They said, if any such law was enacted, the there is scope for this to be rescinded by the Supreme Court and they believed the Supreme Court would do this.
The Digital Security Act is one of the most repressive laws in the history of Bangladesh. Under this law, any dissenting voice can be misinterpreted and the accused persons sent to jail for years on end. Under this law, even an eight-year old can be tried in court for adults. The case to repeal the law has been pending in court for years. Meanwhile, various quarters at home and abroad have criticised the law, following which even ministers of the government have admitted to weakness in the DSA and its misuse.
It is under such a law that violates human rights, that a university student languishes in jail for months. The administration of her university is least bothered. The human rights organisations and women organisations of this country are not that active about this either. But more painful than all this are the orders issued by the Supreme Court to stay her bail hearing.
We have seen the Supreme Court of this country at various times playing a role in favour of human rights. We recall that with pride. That is why we have the hope that at the end of the day, the Supreme Court is there to mete out justice. We have this hope for Khadija and anyone arrested under the black laws. In face of the boundless power of the state and the fearsome black laws, Khadija is a helpless young student. If the Supreme Court wants, it can pass her bail petition within a matter of just 24 hours.
* Asif Nazrul is a professor of law at the University of Dhaka
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir