Another step towards establishing rule of law

The apex court affirming the judgment of the High Court Division once again guarded and protected the rights of our citizens against arbitrary actions and established the rule of law as a paramount principle

Aristotle in his book ‘The Politics’ says where laws do not rule, there is no Constitution. In a landmark judgment the Supreme Court on Thursday (16.03.2017) upheld the judgment of the High Court Division which earlier declared that extraction of money from different companies and persons by armed forces controlled taskforce during 2007-08 military-backed caretaker regime illegal and directed Bangladesh Bank to refund the money within 90 days. The judgment is first one of this nature in our judicial history since the incident itself was first ever to take place in Bangladesh.  By this revolutionary decision our apex court headed by Chief Justice Surendra Kumar Sinha once again upheld the spirit of the constitution and principle of the rule of law and more so increased people’s trust and confidence in our judiciary.
This judgment will have great positive impact in establishing rule of law and guaranteeing civil liberties in Bangladesh. It reminds all of us once again especially the law enforcing agencies including the armed forces that no one is above the law nor should they defy the law for whichever reason  or circumstances and they must also adhere to the principle of rule of law and should always act in accordance with law without going beyond any legal sanction. The apex court affirming the    judgment of the High Court Division once again guarded and protected the rights of our citizens against arbitrary actions and established the rule of law as paramount principle as envisaged in the preamble of our constitution. The apex court undertook its solemn duty to protect constitution and constitutional rights of the citizens without any exception and interruption.
Our forces were put on notice earlier by the Supreme Court in many instances not to cross their lawful limits and authority when they chose to exercise authority. This historic judgment has not only established rule of law but also offered a great deal of comfort to the citizens of this country especially to the business community. They now at least can rest assured that in any circumstance they are able to seek refuge to our court. The apex court has by this monumental judgment upheld public trust and confidence put on our judiciary. Facts leading to the instant case require us to remind ourselves to the principle of ‘rule of law’. Aristotle in ‘Politics’ stated that “The rule of law is preferable to that of any individual”. As viewed similarly by professor A.V. Dicey ‘Rule of Law’ is something opposed to rule of men. It is rather a procedural device by which those with power act under the authority of law. The essence of the doctrine of ‘rule of law’ is that every person irrespective of position and office be subject to the law. In the Fifth Amendment case court held similar view that “Bangladesh is a sovereign democratic republic, governed by the government of laws and not of the men”. It was further observed that “rule of law means supremacy of law..…It means that there cannot be any divergence of approach in dispensing justice… above all, it implies the notion of liberty.” In Anwar Hussain Chowdhury Vs Bangladesh and others case preamble of our constitution was held to be an integral part of our constitution. Justice M.H . Rahman observed that one of the fundamental aims of our society is to secure the ‘rule of law’ for all citizens. Rule of law requires that the power of the state should not be exercised against individual citizen except in accordance with rules explicitly set out in books available to all and government as well as the individual connected with government must act according to the rules set out until they are changed. Our constitution guarantees the rights of its citizen against arbitrary exercise of power by government entities. If so exercised arbitrarily the constitution itself gives remedy for such arbitrariness. Constitution never gives indulgence to such activities. However, disregarding our constitutional emphasis on the doctrine of rule of law, state functionaries often nullify/breach principle of rule of law by their actions. One of the most notorious examples of such breach is the above money extraction case where state agency wanted to punish individuals for their so called corruption/wrongdoing in a manner neither approved nor outlined in ordinary law of the land and naturally goes beyond the very lawful authority.
As framer of our constitution with their due diligence foreseen such circumstances may arise when executive exercise their powers, they have put this doctrine in the constitution to limit executive forces from exercising their power arbitrarily to safeguard rights of individual and liberties.  Armed forces led task force took around Taka 600+ crore from different business houses and persons under coercion during 1/11 regime in the name of income tax and deposited the said money into Bangladesh Bank suspense account. The businessmen from whom money were extracted have been constantly saying that they were compelled to deposit the said amount under coercion and filed writ petition later on before the High Court Division when it was practicable after the 1/11 regime was over. Writ petitioners argued that they have never paid such amount as income tax and challenged legal authority of such agency to collect such money in the name of revenues. Article 83 of the constitution of Bangladesh states “No tax shall be levied or collected except by or under the authority of an Act of Parliament”.  Article 83, 84 and 85 of the constitution of Bangladesh unequivocally outlined the manner of collecting tax and other revenues. No act for the time being in force authorizes or empowers the taskforce led by armed forces to collect and deposit taxes on behalf of the government by using force upon the citizen. This incident reminded us of the time of Edward III when men were arbitrarily imprisoned without following the due process of law which continued until law was enacted by the Westminster Parliament debarring such arbitrary action in 1954. Parliament enacted that “no men, of what estate or condition that he be, should be out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of law.
The High Court Division in its historic judgment held that ‘certain agencies were not authorized by the constitution or law to collect revenue by directing the petitioners to deposit a certain amount of money. If a person evades tax and duty, there is clear provision not only to recover the same but to impose penalty. Duty or tax can be adjusted in advance but the same has to be done in accordance with law.”  Justice Naima Haider in her landmark judgment went further on to say that “it is essential jurisprudence of our legal system that emergency situation and proclamation of emergency situation under the constitution or any other situation whatsoever does not give the president of republic or the government itself or any other governmental authority, be it law enforcing agency or DGFI, any extraordinary power to interfere in the life, property and private business and affairs of any individual or any other person including any incorporated body without positive sanction of valid piece of statutory law, especially when extraction of money involved.”  It was clear message of the judgment that “No circumstances can extend the authority of Government or another governmental agency beyond the limits sets out in article 83 of the constitution”. The Fifth Amendment case clearly in similar contention emphasized that “all functionaries of the republic and all services of the republic, namely, civil service, defence services and all other services, owe its existence to the constitution and must obey its edicts.” This judgment gives us hope and yet marks a historic move forward towards establishing rule of law and justice in our country.
 
The writer, Barrister at Law, Hon’ble Society of Gray’s Inn, England, is Advocate, Supreme Court of Bangladesh. Email: [email protected]

Another step towards establishing rule of law

The apex court affirming the judgment of the High Court Division once again guarded and protected the rights of our citizens against arbitrary actions and established the rule of law as a paramount principle

Aristotle in his book The Politics says where laws do not rule, there is no Constitution. In a landmark judgment the Supreme Court on Thursday (16.03.2017) upheld the judgment of the High Court Division which earlier declared that extraction of money from different companies and persons by armed forces controlled taskforce during 2007-08 military-backed caretaker regime illegal and directed Bangladesh Bank to refund the money within 90 days. The judgment is first one of this nature in our judicial history since the incident itself was first ever to take place in Bangladesh. By this revolutionary decision our apex court headed by Chief Justice Surendra Kumar Sinha once again upheld the spirit of the constitution and principle of the rule of law and more so increased peoples trust and confidence in our judiciary. This judgment will have great positive impact in establishing rule of law and guaranteeing civil liberties in Bangladesh. It reminds all of us once again especially the law enforcing agencies including the armed forces that no one is above the law nor should they defy the law for whichever reason or circumstances and they must also adhere to the principle of rule of law and should always act in accordance with law without going beyond any legal sanction. The apex court affirming the judgment of the High Court Division once again guarded and protected the rights of our citizens against arbitrary actions and established the rule of law as paramount principle as envisaged in the preamble of our constitution. The apex court undertook its solemn duty to protect constitution and constitutional rights of the citizens without any exception and interruption. Our forces were put on notice earlier by the Supreme Court in many instances not to cross their lawful limits and authority when they chose to exercise authority. This historic judgment has not only established rule of law but also offered a great deal of comfort to the citizens of this country especially to the business community. They now at least can rest assured that in any circumstance they are able to seek refuge to our court. The apex court has by this monumental judgment upheld public trust and confidence put on our judiciary. Facts leading to the instant case require us to remind ourselves to the principle of rule of law. Aristotle in Politics stated that The rule of law is preferable to that of any individual. As viewed similarly by professor A.V. Dicey Rule of Law is something opposed to rule of men. It is rather a procedural device by which those with power act under the authority of law. The essence of the doctrine of rule of law is that every person irrespective of position and office be subject to the law. In the Fifth Amendment case court held similar view that Bangladesh is a sovereign democratic republic, governed by the government of laws and not of the men. It was further observed that rule of law means supremacy of law..It means that there cannot be any divergence of approach in dispensing justice above all, it implies the notion of liberty. In Anwar Hussain Chowdhury Vs Bangladesh and others case preamble of our constitution was held to be an integral part of our constitution. Justice M.H . Rahman observed that one of the fundamental aims of our society is to secure the rule of law for all citizens. Rule of law requires that the power of the state should not be exercised against individual citizen except in accordance with rules explicitly set out in books available to all and government as well as the individual connected with government must act according to the rules set out until they are changed. Our constitution guarantees the rights of its citizen against arbitrary exercise of power by government entities. If so exercised arbitrarily the constitution itself gives remedy for such arbitrariness. Constitution never gives indulgence to such activities. However, disregarding our constitutional emphasis on the doctrine of rule of law, state functionaries often nullify/breach principle of rule of law by their actions. One of the most notorious examples of such breach is the above money extraction case where state agency wanted to punish individuals for their so called corruption/wrongdoing in a manner neither approved nor outlined in ordinary law of the land and naturally goes beyond the very lawful authority. As framer of our constitution with their due diligence foreseen such circumstances may arise when executive exercise their powers, they have put this doctrine in the constitution to limit executive forces from exercising their power arbitrarily to safeguard rights of individual and liberties. Armed forces led task force took around Taka 600+ crore from different business houses and persons under coercion during 1/11 regime in the name of income tax and deposited the said money into Bangladesh Bank suspense account. The businessmen from whom money were extracted have been constantly saying that they were compelled to deposit the said amount under coercion and filed writ petition later on before the High Court Division when it was practicable after the 1/11 regime was over. Writ petitioners argued that they have never paid such amount as income tax and challenged legal authority of such agency to collect such money in the name of revenues. Article 83 of the constitution of Bangladesh states No tax shall be levied or collected except by or under the authority of an Act of Parliament. Article 83, 84 and 85 of the constitution of Bangladesh unequivocally outlined the manner of collecting tax and other revenues. No act for the time being in force authorizes or empowers the taskforce led by armed forces to collect and deposit taxes on behalf of the government by using force upon the citizen. This incident reminded us of the time of Edward III when men were arbitrarily imprisoned without following the due process of law which continued until law was enacted by the Westminster Parliament debarring such arbitrary action in 1954. Parliament enacted that no men, of what estate or condition that he be, should be out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of law. The High Court Division in its historic judgment held that certain agencies were not authorized by the constitution or law to collect revenue by directing the petitioners to deposit a certain amount of money. If a person evades tax and duty, there is clear provision not only to recover the same but to impose penalty. Duty or tax can be adjusted in advance but the same has to be done in accordance with law. Justice Naima Haider in her landmark judgment went further on to say that it is essential jurisprudence of our legal system that emergency situation and proclamation of emergency situation under the constitution or any other situation whatsoever does not give the president of republic or the government itself or any other governmental authority, be it law enforcing agency or DGFI, any extraordinary power to interfere in the life, property and private business and affairs of any individual or any other person including any incorporated body without positive sanction of valid piece of statutory law, especially when extraction of money involved. It was clear message of the judgment that No circumstances can extend the authority of Government or another governmental agency beyond the limits sets out in article 83 of the constitution. The Fifth Amendment case clearly in similar contention emphasized that all functionaries of the republic and all services of the republic, namely, civil service, defence services and all other services, owe its existence to the constitution and must obey its edicts. This judgment gives us hope and yet marks a historic move forward towards establishing rule of law and justice in our country. The writer, Barrister at Law, Honble Society of Grays Inn, England, is Advocate, Supreme Court of Bangladesh. Email: [email protected]