Interim govt defrauded people by forming Tac
States HC in full text of its recently released judgement; ACC now free to go after the amnesty-seekers
The immediate past caretaker government defrauded the people by forming the now-defunct Truth and Accountability Commission (Tac), the High Court observed in its judgment that declared the commission illegal.
It said the Voluntary Disclosure of Information Ordinance 2008, by which Tac was constituted, was formulated by misinterpreting and violating numerous articles of the country's constitution.
The ordinance was enacted "by deception, tantamount to fraud", and it encroached upon the existing system of criminal justice, the existing courts, the constitution, and the people, in the name of an alternative system of justice, the court observed.
The full text of the HC judgment was released on June 22 this year, over a year and a half into the announcement of the verdict on November 13, 2008.
"The High Court observation means the then caretaker government defrauded the criminal justice system by promulgating the voluntary disclosure ordinance," Anti-corruption Commission (ACC) counsel Khurshid Alam Khan told The Daily Star recently.
The recent ACC move for reopening cases against 297 graft suspects, pardoned by Tac, got a shot in the arm following the release of the judgment's full text, as there is now no bar on such reopening, said legal experts.
"The ordinance is liable to be declared to have been made without lawful authority and is of no legal effect and ultra-vires of the constitution and all acts or deeds or exoneration made or proceeding taken under the said ordinance is also liable to be declared to have been done and made without lawful authority and is of no legal effect," the judgment said.
"The ordinance is repealed in such a way as if no such act ever existed in the country," said Md Asaduzzaman, one of the five lawyers for the petitioners who had challenged the formation of Tac.
Law Minister Shafique Ahmed told The Daily Star recently that the government has not yet taken any decision regarding the fate of those persons who had confessed to Tac that they had committed corruption.
"The Truth Commission received money from the corruptionists on behalf of the state. As the government is the real owner of the ill-gotten money, it will not be refunded to those who surrendered the money," he added.
Former law adviser to the immediate past caretaker government Hassan Arif declined to comment on the matter after he could finally be reached through repeated attempts.
"Aggrieved individuals may go to court against the verdict while the government has the chance to file a delayed appeal against it," said Attorney General Mahbubey Alam.
"The court was convinced by the arguments presented by the lawyers of the petitioners, but not by the arguments of the government lawyers," said former attorney general Salahuddin Ahmed, who represented the government.
"Tac is one of the many illegal activities the illegal caretaker government carried out during its tenure. People involved in formulating the ordinance should be brought to justice," said Adilur Rahman Khan, a Supreme Court lawyer who is also one of the petitioners against the formation of Tac, and also the secretary of human rights organisation Odhikar.
On August 25, 2008 Foreign Minister Dipu Moni who was Awami League's women affairs secretary back then, SC lawyer Adilur Rahman Khan, Ubinig Executive Director Farida Akhter, and Odhikar Director Nasiruddin Elan filed the petition as a public interest litigation challenging the legality of the ordinance that had allowed Tac to be formed.
After assuming power on January 11, 2007 the caretaker government launched a massive drive against corruption reconstituting the ACC, and formed the army-led National Coordination Committee on Corruption and Serious Crime (NCC), which is also defunct now.
The ACC served notices against over 300 graft suspects many of whom were of high profile, and filed over 200 cases against those influential suspects in 2007 and early 2008.
The idea of Tac emerged at the end of 2007 as an alternative way for dealing with the cases, by allowing the offenders opportunities to admit their culpabilities and be instantly penalised monetarily, instead of prolonged legal process and convictions by courts.
Several sources in the immediate past caretaker government said it was the NCC that conceived the idea of forming Tac after realising that it would take a long time to put all graft suspects behind bars, which would not be possible before the general elections held in December, 2008.
Tac began its journey on August 3, 2008 with a five-month tenure and got dissolved in January, 2009.
The ordinance, that formed the commission, destroyed the constitution's basic concept, the HC judgment said.
The court observed that the ordinance also destroyed the essential limb of the judiciary, namely the Supreme Court (SC), by setting up a rival commission parallel to the High Court Division, in the name of speedy trial of criminals.
Tac was given the authority to call upon the judiciary for assistance if necessary, it could stop trials and ask for records from trial courts before framing charges against any person.
"The supervisory power of the Supreme Court has been encroached and disregarded and the Administration of Criminal Justice are not functioning in accordance with law and procedure due to interference of the Truth Commission," the judgment said.
Tac was also given the authority of punishment like seizures, confiscations, forfeitures, removals, and attachments of properties, which is directly inconsistent with the constitution, the HC said.
Commenting on the activities of Tac, the court said, "It has occasioned deception and fraud by invoking a misnomer, misleading nomenclature, namely 'The Truth and Accountability Commission'."
The definition of commission ensures taking of oath from an offender, examination of evidence and deposition of witnesses, but Tac awarded clemency solely based on the offenders' statement, the HC added.
"It does not adhere to the ingredients of a 'commission' and it acts far in excess of a commission by assuming powers of determination that affects the fundamental rights of the individuals and is contrary to so many provisions of the constitution," the judgment went on.
Even scope was not given to test the validity of the ordinance as it was enacted for five months on June 8, 2008 at a time when the election was announced to be held in December the same year, the judgment added.
According to the current tradition, an ordinance is required to be placed before a parliament within 30 days of the House's formation, but the Voluntary Disclosure of Information Ordinance, 2008 ceased to exist even before the current parliament was formed.
The ordinance was in violation of the equality clause of the constitution as it gave "suitable atmosphere" and "special privilege" of exoneration to a class of offenders, the judgment said.
The very enactment of the ordinance was also in violation of the constitution because that was a policy decision, and a caretaker government is not allowed to take any policy decision, the HC concluded.
It said the Voluntary Disclosure of Information Ordinance 2008, by which Tac was constituted, was formulated by misinterpreting and violating numerous articles of the country's constitution.
The ordinance was enacted "by deception, tantamount to fraud", and it encroached upon the existing system of criminal justice, the existing courts, the constitution, and the people, in the name of an alternative system of justice, the court observed.
The full text of the HC judgment was released on June 22 this year, over a year and a half into the announcement of the verdict on November 13, 2008.
"The High Court observation means the then caretaker government defrauded the criminal justice system by promulgating the voluntary disclosure ordinance," Anti-corruption Commission (ACC) counsel Khurshid Alam Khan told The Daily Star recently.
The recent ACC move for reopening cases against 297 graft suspects, pardoned by Tac, got a shot in the arm following the release of the judgment's full text, as there is now no bar on such reopening, said legal experts.
"The ordinance is liable to be declared to have been made without lawful authority and is of no legal effect and ultra-vires of the constitution and all acts or deeds or exoneration made or proceeding taken under the said ordinance is also liable to be declared to have been done and made without lawful authority and is of no legal effect," the judgment said.
"The ordinance is repealed in such a way as if no such act ever existed in the country," said Md Asaduzzaman, one of the five lawyers for the petitioners who had challenged the formation of Tac.
Law Minister Shafique Ahmed told The Daily Star recently that the government has not yet taken any decision regarding the fate of those persons who had confessed to Tac that they had committed corruption.
"The Truth Commission received money from the corruptionists on behalf of the state. As the government is the real owner of the ill-gotten money, it will not be refunded to those who surrendered the money," he added.
Former law adviser to the immediate past caretaker government Hassan Arif declined to comment on the matter after he could finally be reached through repeated attempts.
"Aggrieved individuals may go to court against the verdict while the government has the chance to file a delayed appeal against it," said Attorney General Mahbubey Alam.
"The court was convinced by the arguments presented by the lawyers of the petitioners, but not by the arguments of the government lawyers," said former attorney general Salahuddin Ahmed, who represented the government.
"Tac is one of the many illegal activities the illegal caretaker government carried out during its tenure. People involved in formulating the ordinance should be brought to justice," said Adilur Rahman Khan, a Supreme Court lawyer who is also one of the petitioners against the formation of Tac, and also the secretary of human rights organisation Odhikar.
On August 25, 2008 Foreign Minister Dipu Moni who was Awami League's women affairs secretary back then, SC lawyer Adilur Rahman Khan, Ubinig Executive Director Farida Akhter, and Odhikar Director Nasiruddin Elan filed the petition as a public interest litigation challenging the legality of the ordinance that had allowed Tac to be formed.
After assuming power on January 11, 2007 the caretaker government launched a massive drive against corruption reconstituting the ACC, and formed the army-led National Coordination Committee on Corruption and Serious Crime (NCC), which is also defunct now.
The ACC served notices against over 300 graft suspects many of whom were of high profile, and filed over 200 cases against those influential suspects in 2007 and early 2008.
The idea of Tac emerged at the end of 2007 as an alternative way for dealing with the cases, by allowing the offenders opportunities to admit their culpabilities and be instantly penalised monetarily, instead of prolonged legal process and convictions by courts.
Several sources in the immediate past caretaker government said it was the NCC that conceived the idea of forming Tac after realising that it would take a long time to put all graft suspects behind bars, which would not be possible before the general elections held in December, 2008.
Tac began its journey on August 3, 2008 with a five-month tenure and got dissolved in January, 2009.
The ordinance, that formed the commission, destroyed the constitution's basic concept, the HC judgment said.
The court observed that the ordinance also destroyed the essential limb of the judiciary, namely the Supreme Court (SC), by setting up a rival commission parallel to the High Court Division, in the name of speedy trial of criminals.
Tac was given the authority to call upon the judiciary for assistance if necessary, it could stop trials and ask for records from trial courts before framing charges against any person.
"The supervisory power of the Supreme Court has been encroached and disregarded and the Administration of Criminal Justice are not functioning in accordance with law and procedure due to interference of the Truth Commission," the judgment said.
Tac was also given the authority of punishment like seizures, confiscations, forfeitures, removals, and attachments of properties, which is directly inconsistent with the constitution, the HC said.
Commenting on the activities of Tac, the court said, "It has occasioned deception and fraud by invoking a misnomer, misleading nomenclature, namely 'The Truth and Accountability Commission'."
The definition of commission ensures taking of oath from an offender, examination of evidence and deposition of witnesses, but Tac awarded clemency solely based on the offenders' statement, the HC added.
"It does not adhere to the ingredients of a 'commission' and it acts far in excess of a commission by assuming powers of determination that affects the fundamental rights of the individuals and is contrary to so many provisions of the constitution," the judgment went on.
Even scope was not given to test the validity of the ordinance as it was enacted for five months on June 8, 2008 at a time when the election was announced to be held in December the same year, the judgment added.
According to the current tradition, an ordinance is required to be placed before a parliament within 30 days of the House's formation, but the Voluntary Disclosure of Information Ordinance, 2008 ceased to exist even before the current parliament was formed.
The ordinance was in violation of the equality clause of the constitution as it gave "suitable atmosphere" and "special privilege" of exoneration to a class of offenders, the judgment said.
The very enactment of the ordinance was also in violation of the constitution because that was a policy decision, and a caretaker government is not allowed to take any policy decision, the HC concluded.
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