How far can the rights of the aggrieved extend?
Prime Minister Sheikh Hasina did a commendable job when she asked the administration and her party leaders to inquire into the curious case of Gazi Tariq Salman, the now-famed Upazila Nirbahi Officer (UNO) of Barguna. Soon after her reaction was made public, both the administration and Awami League leaders acted promptly, which ultimately led to the withdrawal of the defamation case (filed under section 501 of the Penal Code, 1860) and temporary suspension of the plaintiff, Obaidullah Saju, from the party. Had there been no media reports on this, Tariq Salman would have landed behind bars and his promising career would have met an unfortunate end.
Even after being the highest-ranking officer in the Upazila, Tariq Salman became the victim of a vicious plot. Nowadays, the practice of accusing someone of defaming Bangabandhu or his next of kin or a leader of the ruling party has become quite popular among a section of people. The only difference is that this time defamation charges were brought against a promising and dedicated public official.
Tariq Salman was lucky to have the case against him withdrawn. What would happen if a similar case was filed against an ordinary citizen? Would things move this fast—starting from the withdrawal of the case to the formation of a high-powered investigation committee? One is reminded of the case against Shyamal Kanti Bhakta. Although this was not a defamation case, it showed how an ordinary citizen can be harassed using legal channels and to what extent he can be humiliated.
In the recent past, we have seen a sharp rise in such cases seeking punishment for alleged defamation of Bangabandhu or his family members or leaders of the ruling party. This bizarre trend can hardly be found in any other country in the world. Section 198 of the Code of Criminal Procedure, 1898 prevents defamation cases from being filed by a third person to which he or she is not a party or is not affected directly. It reads: "No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI (defamation) of the Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence."
However, this provision seems to have no impact on the third parties who are bent on using legal channels to harass their opponents or individuals with a different opinion, and to contain the spirit of the freedom of press in Bangladesh. There are ample examples of filing defamation and compensation cases against journalists by the ruling party activists on behalf of their leaders for publishing investigative reports or for making a comment or simply for posting a Facebook status. In all these cases, the plaintiffs were neither direct party nor had they suffered any loss.
Now let us take a look at the Constitution to find out what level of authority it has granted to the aggrieved. According to Article 102 of Part VI (Judiciary), "The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution." The constitution has listed 23 fundamental rights none of which matches with the merit of these cases including the much-talked-about case against Tariq Salman. Rather, these cases are in clear violation of some fundamental rights including Articles 27 (Equality before law), 31 (Right to protection of law) and 32 (Protection of life and personal liberty). Above all, this trend is against the spirit of Article 39 that guarantees freedom of thought and conscience, and of speech.
I do not know of any defamation or compensation cases that have been proved to be true, or any verdict that has been awarded in favour of the plaintiff. Proceedings of a number of cases have been stayed by the High Court Division. What was done with a public officer in Barguna was a crime in the guise of the law. A politician played foul, a faulty verdict was given, and police acted outside the law, as the senior secretary of the ministry of public administration was so right to say. The Administrative Service Association requested taking appropriate measures against the people involved in this heinous act. Surprisingly, the cabinet division was all along aware of the entire episode as the answer to the show-cause notice was forwarded to the division for necessary actions.
It was only after the prime minister's reaction that things started to change. He was first served a show cause, and then came the case. Was there any co-relation between the two? Only an impartial and neutral investigation will reveal the truth. This bizarre case has different aspects. First, it exposed how party leaders try to influence the local administration. Second, how unethically Bangabandhu's name is being used for personal and political gains. Third, the divisional and district-level high-ups in local administrations care little to stand by the truth when it involves a political leader from the ruling party. And finally, it proved that only an intervention by the prime minister or someone close to her can really bring about a desired change.
Tariq Salman was lucky to have drawn the attention of the prime minister. Are we all as lucky? Certainly, we are not. It is not humanly possible for her to give directions on all matters like this. All we can hope for is that things will work properly and our fundamental rights will not be affected by someone's personal vendetta. The law ministry, to this end, can draw a line on the rights of the aggrieved.
Meer Ahsan Habib is a development professional.
E-mail: meer.riyadh@gmail.com