Indemnity Ordinance

The 'Joint Drive Indemnity Ordinance, 2003' promulgated by the government, apparently to consign some questions raised by the anti-crime drive to oblivion, has not been endorsed by jurists and lawyers for obvious reasons. We, for our part, believe that it was eminently avoidable. For, in this paper, we have said for the umpteenth time that the government needed to spell not a priori the provisions of law under which the army had been called out for the anti-crime drive. As far as we can remember even section 132 of the CrPC concerning 'aid to civil power' was not formally cited as the basis for it.

Instead the government decided to push through the ordinance, thus setting a dangerous precedent. It amounts to post-facto justification of the actions through indemnification of the individuals deployed on a special mission. It would perhaps not be an exaggeration to say what we have now is a law that seeks to legalise violation of law itself.

The volley of questions and queries that sound like a logical sequel to the promulgation of the ordinance, could also be avoided if the issue was placed before the Parliament during its sessions in November last year. Article 46 of the Constitution says that the Parliament may make provisions for indemnifying any person engaged in maintenance or restoration of order in any area in the country. The spirit of the Constitution is that the interpretation of the circumstances prevailing in the country is a matter of collective responsibility to be performed by lawmakers in the Parliament. But a sidestepping of the supreme legislative body took place for some inexplicable reasons.

What is indeed a matter of greater worry is that the fundamental rights of citizens, as guaranteed by the Constitution, are at stake when retrospective effect is being given to indemnify actions of a questionable nature. The government should not have been oblivious of the fact that the constitutional rights of the citizens must always take precedence.

Finally, the government, which showed great sensitivity to the issues concerning the country's image abroad in the past, has to now make a careful assessment of how the international community might view the ordinance and its implications, let alone the flak it has drawn on account of the custodial deaths. Let's not forget, Bangladesh is a signatory to a wide range of international covenants on human rights like the convention against torture and that which has brought about the International Criminal Court. So, the country can ill-afford to enact laws or promulgate ordinances that are inconsistent with its international obligations.