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The power to protect citizens

  • Published at 10:57 pm February 21st, 2020
Photo: Rajib Dhar/Dhaka Tribune

How to defend the constitution of our nation

Human nature being a universal constant across countries and cultures, an overwhelming majority of individuals is unlikely to give up any power they have over their fellow beings unless there are incentives for it. 

Or, more precisely, substantive disincentives against it.

In a nutshell, that was my perspective after reading the observations this month of the Supreme Court’s appellate bench regarding thewillful, continuing, and deliberate disregard shown by the executive branch to the court’s 2016 judgment on the protocols for law enforcement agencies. 

The power inherited by police from the colonial era -- enormously strengthened, in a twist of sour irony, during the past five decades of independent Bangladesh -- to arrest, detain, torture, maim, and “disappear” citizens on whim is a sad fact of life in the country. 

That laws, judgments, and rules exist to ameliorate such diabolical activity by the state has made very little substantive difference. In fact, for a government which has little public accountability to fear at the routine showpiece ballot box exercises, the symbiotic relationship with an equally unaccountable police becomes a necessity for survival. 

The police, being smart and only human, have thus only pressured the government more and more every year to be absolved of even the minimal constraints of the law when dealing brutally with hapless citizens.

This human instinct to cause injury to another for one’s own benefit of stature and power is hardly a uniquely Bangladeshi trait. 

In an otherwise very advanced country with long traditions of rule of law like the US, municipal police forces often get away with misconduct by virtue of having their powerful labour unions lean on politicians, and sympathetic (elected) judges inventing doctrines like “qualified immunity” to prevent the prosecution of many rogue policemen. 

Nonetheless, prosecutions and civil suits against unprofessional law enforcers do regularly happen in the US, and in many jurisdictions, independently elected prosecutors have started going after the bad apples in the law enforcement community. 

In places like the UK and Canada, autonomous civilian oversight bodies take a much dimmer view of police misconduct than in the US. 

In other words, in civilized societies, there may not be the perfect disincentive for police brutality, but there are some practical safeguards, be these oversight commissions, civil lawsuits, free elections, and what not. Nothing of that sort exists in Bangladesh, as the learned chief justice and his brethren found out, certainly to their dismay, earlier this month. 

In fact, one justice quite bluntly asked the hapless attorney general, what prevented him (the justice) or his family members from being picked up randomly under Section 54?

Not surprisingly, the regime’s chief lawyer had no answer.

But the Supreme Court does. That is, only if it wishes to respond on behalf of the republic’s constitution whose sole philosophical guardian it is. 

The power to punish those who flout its solemn judgments is inherent in the authority of a civilized court of law; in fact, even in Bangladesh’s own checkered history of judicial independence, one remembers a past Supreme Court making the powerful secretaries to the government stand in the dock (as opposed to the more respectable sitting position these kings of the Secretariat were used to) as it lectured them during the famous Masdar Ali case. 

Those chastened secretaries did respond with the remorse and alacrity in doing what they were asked to, again a testament to the inherent nature of the human being. 

That the central holding of that seminal case has since been ignored by the government only proves the importance of continuing vigilance of the judiciary over an executive that no longer has any other constraints left at the ballot box or the printing presses.

There is an ancient Bengali proverb -- “Chore shune na dhormo kahini,” which roughly translates to “the rogue rarely pays heed to the lessons of righteousness.” 

I suspect that, given the universality of certain human failings, similar gems of wisdom exist in most languages of the planet. 

As such, deference to the excuses of known contemnors should be tempered with the duty to uphold that fragile document known as the constitution of Bangladesh which, at least theoretically, makes the fundamental rights of citizens a cornerstone of public policy. 

Those public servants who continue to provide excuses for their underlings repeatedly violating those rights should rightly face substantive punishment -- from public chastisement to imprisonment -- from a Supreme Court that is serious about defending that constitution. 

It is now plain, that nothing else can deter an unchecked executive from continuing to erode the God-given rights of citizens. 

Esam Sohail is a college administrator and writes from Kansas, USA. He can be reached at [email protected]