Zahidul Islam Biswas
Backlog of cases appears to be a common predicament of the judiciaries worldwide. Countries from both developed and developing world have been facing this problem more or less alike. However, this difficulty for Bangladesh judiciary seems going from bad to worse every year. According to latest annual report on the judiciary, still the Appellate Division of the Supreme Court has 8,997 cases pending, the High Court 2,62,349 cases and the judicial magistracy 6,02,173 cases as of December 31, 2007 although the disposal rate of cases has increased.
It is a matter of hope that the judiciary after being formally independent on November 1, 2007, has shown its efficiency to a good extent. After the separation of the judiciary from the executive and with the introduction of judicial magistracy, the rate of disposal of criminal cases in the courts of magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by the judicial magistrates in November 2007.
According to the said report, 5,63,344 cases were pending with the judicial magistracy as of November 1, 2007 and 34,131 cases were filed in November 2007, while the magistrates disposed of 33,104 cases. On December 1, 2007, the judicial magistracy had 5,64,371 cases pending and 87,789 cases were filed in December 2007, while 49,987 cases were disposed of. On an average, 137 cases were disposed of by each of the 242 judicial magistrates in November, in a month after the judiciary became independent of the executive.
However, while there are a huge number of cases pending and the rate of filing cases is greater than the rate of disposal indicating increase of caseload every year, it is certain that judiciary will have to bear the huge backlog of cases on its shoulder for an uncertain period of time unless special steps are taken to heal the cancer of the judiciary.
Understandably, this problem is not just a setback of the judiciary, but it is a great predicament of any nation. Backlog of cases obstructs the 'access to justice' which is considered to be the 'most basic human rights', as 'access to justice' does mean not only the presence of justice mechanisms like courts, tribunals etc. but also the ability of those mechanisms to deliver affordable and timely justice to the citizens. Backlog of cases does not only delay the disposal of cases and impose huge expense on the justice seeker but also perpetuates tensions among litigants.
For this reason fighting against this judicial handicap is getting more and more importance globally day by day. Bangladesh realizing the gravity of the problem started tackling the problem long ago. First attempt to tackle the backlog of cases was to establish a number of tribunals to deal with disputes from some specified areas. The underlying assumption for establishing various tribunals was that in the existing adversarial judicial system the formal trial procedure takes a longer period of time. This is because of their strict following of Code of Civil Procedure or Code of Criminal Procedure. By contrast, the tribunal as a special justice mechanism following suitable speedy procedure for dealing with some disputes of specific areas could be better equipped to deliver timely and inexpensive justice. But it seems that the history of tribunal does not confirm this assumption. Bangladesh's special tribunals have failed to contribute in improving the caseload situation of Bangladesh judiciary.
The next attempt, that was taken more than a decade ago, was to introduce ADR (Alternative Dispute Resolution) mechanisms, which includes mediation and conciliation, among others. In Bangladesh's adversarial judicial system, trial procedure is dominantly controlled by the lawyers of the both sides of litigation, where the judges play minimal role to control the trial. Lawyers takes repeated time to make them well prepared for dealing with the case, or for sometimes to frustrate the aim of the case itself by delaying its progress. ADR is introduced against this backdrop. One example of that is introducing mediation in the family courts of the country. It is claimed that the ADR programme in family courts is a great success, and following that success scope for ADR is created in all other civil courts by amending the Code of Civil Procedure. The previous government was even planning to introduce ADR in criminal courts also.
It is mentionable that there are serious arguments against ADR; however, I am not going to rehearse that discussion here. Simply put my argument is that given the nature of disputes and cases, all these cannot be sent to be resolved through ADR mechanisms. Moreover, Moreover, if Bangladesh's social structures, power practice and litigants' mind are taken into account, how much ADR can contribute in other critical civil and criminal cases is uncertain. Moreover, sociologists such as Laura Nader have argued that even the American ADR models, which are often cited in India and Bangladesh now, actually divest the poor of justice. Similarly Galanter has argued that the informalism introduced by Lok Adalats is a debased form of informalism since it bypasses law rather than ensure that good law is available to all. Hence, the demand for strengthening the formal courts of law than relying on ADR finds persuasion in these arguments.
However, the point to discuss here is that all the times there were some attempts of legislative changes to deal with the backlog of cases. Time to time, various special laws and procedures have been made, and both Code of Civil Procedure and Code of Criminal Procedure have been overhauled to respond the need of speedy justice. But evidently Bangladesh judiciary has failed to deal with its enormous backlog of pending cases, denying its citizens right to justice.
Understandably, all these abovementioned attempts were made considering only some aspects of the backlog of cases. In other words, these attempts were piecemeal ones to tackle the judicial malaise. Consequently success was also piecemeal, not comprehensive or overwhelming. It otherwise reveals that for an overwhelming development of the 'caseload situation' there is a need for a comprehensive approach to analyse the entire situation and take comprehensive actions that will weightily take into consideration the administrative and financial aspects, among others, of the judiciary.
Generally, the state of court administration is considered a great contributing factor in the backlog of cases. In the case of Bangladesh, we see the judge-population ratio is one of the lowest in the world. I don't have exact data in my hand this moment, but I guess the ratio is not more than 12/13 judges per million population. Comparing to developed world's judiciary, the ratio may evoke disbelief among many of us. A paper shows that even twelve years ago the numbers of judges for per million people were 41 judges in Australia, 75 in Canada, 51 in England and 107 in the USA.
In developed country's judiciary, along with judge- population ratio, another aspect which is taken equally importantly or more importantly is the ratio of case management staff number of cases. Court administration cannot succeed without the unstinted support of the Court staff and its Registry. In fact, they are the backbone of the system and the administrative burden really falls on them. Though there is no data as to this ratio in Bangladesh, undoubtedly it is also one of the lowest in the world.
While the unjustified shortage of court staff is contributing mismanagement of trial, proceedings and records, the ancient or traditional management technology have been worsening the situation. Most of the case management work - for example maintaining case files, keeping records of document and evidence, writing warrant, summons, notice, order, judgment etc is done manually, following century old format. Many developed courtiers, like USA, Australia, United Kingdom, Canada, who had faced same type of case management problem due to shortage of staff have been gradually overcoming this by introducing 'e-management' of cases. Their experiences show that by using modern information technologies like computer data base and internet etc. these case management problems can be overcome to a great extent even with the existing 'insufficient' number of staff. Hopefully, 'modern technology has been introduced in the management of court and cases that will help in bringing transparency to the judiciary', as the immediate past chief justice of Bangladesh recently said at the launch of the 2007 annual report of the judiciary.
Along with all these comes the role of law enforcing agencies, i.e., the police department. Criminal justice system is very much dependent on police and thana administration. Corruption in the Bangladesh police administration contributes heavily in the malaise of Bangladesh legal system. Without taking care of this department, nothing good can be expected overnight from the present independent judiciary.
No doubt, for improving court administration, the number of judges and management staff and infrastructure development is must, for which huge financial investment is necessary. In Bangladesh, the expenditure on judiciary in terms of GNP is again one of the lowest which is not more than 0.5 percent I guess. On the contrary it is 4 per cent on the average in other developed countries. Considering this trivial financial care of the judiciary, the poor administration of justice in Bangladesh is not inconsistent.
While this is a general discussion on the causes underlying the backlog of cases Bangladesh judiciary, the concerned experts are expected to reveal more causes. The point here is that for getting rid of the backlog of cases all these expressed and hidden causes have to be taken into account.
Now Bangladesh Judiciary is separate from executive. This separation is a result of a long struggle. It is now the responsibility of the judiciary to reap the benefits of being independent and to stand by the justice hungry people of the country. However, after separation of judiciary form executive, the judiciary is theoretically independent; practically it is still dependent upon the other partners in government, i.e., the executive and legislative branches of government, specifically in cases of legislative changes, police cooperation, allocation of national budget for judiciary etc.
In such a position judiciary must make a clear vision of how much time and in which way it wants to overcome the suffocating backlog of cases. Then it has to convey its vision to other partners of the government and convince them so that they cooperate to fulfil that vision. And at the same time judiciary must update the common citizens on this vision for upholding their confidence in judiciary. But, above all, the judiciary must be cautious that it does not sacrifice access to 'justice' for the sake of 'access' to justice.
The writer, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. He can be reached at: zahid_biswas@hotmail.com.
First published in The Daily Star, Section: Law & our Rights, Issue no. 74, June 28, 2008.
Also available at: http://www.thedailystar.net/law/2008/06/04/index.htm
***
India for DNA test in child maintenance suits
Zahidul Islam Biswas 
Since the discovery of DNA in 1984, DNA test has emerged as a powerful tool for determining human identity and relationship for various purposes. DNA (deoxyribonucleic acid), found in nucleus of a cell in human body, can be collected from the sample of saliva, hair, blood, semen, sweat etc. DNA test can reveal existence of relations among persons and determine the nature of their relationships. Before the advent of DNA test, test of human identity was largely completed by blood typing. Analysis of DNA has now replaced blood and it has been accepted as the most accurate method currently available for identification.
Britain started the use of DNA test in legal cases first in 1987. Later on, most of the developed countries began to use this modern technology based method in both civil and criminal justice system because of its effective role in identification. This method gains more and more importance with scientific development in latter years. Today DNA can be deduced from number of evidences in the crime scene, such as, a person's used hat, collar of shirt, pillow, blanket, bed sheet etc. By DNA test, it is now possible to obtain information on person's gender, age, ethnic background etc.
India also started to avail the benefit of DNA test in its criminal justice system long ago. Now Delhi High Court introduced the use of DNA test in civil justice system. By an order on 14 May 2008, Delhi High Court set legal precedent for the use of DNA test for determining paternity in case of child maintenance suit. The order came when the court faced with claims by a man that he didn't father a child for whom his estranged wife was seeking maintenance. The fact of the suit is as follows:
Ravindar and Sonam (name changed) tied knot in September 2000. A year later, Anup was born. Alleging Sonam of having illicit relations Ravindar walked out of the marriage only to be slapped with a case of harassment for dowry in 2007 and a case of maintenance a year later. Sonam demanded maintenance for Anup.
In the hearing of the suit in the lower court, Ravindar claimed that Sonam had illicit relations with her brother-in-law and this child was born out of that affair. Wondering why he should be held liable for maintenance when he wasn't the biological father, he also claimed that he didn't have physical relations with his wife ten months before Anup was born and therefore suspected her of committing adultery. Hence, he pressed for a DNA test for determining paternity of the child.
Ravinder's plea before the magistrate was dismissed after the lower court held that holding of a DNA test will not have any effect on the merits of the case as maintenance petition doesn't differentiate between a legitimate child and an illegitimate one. Then he moved to the High Court.
Delhi High Court quashed the lower court's decision and accepted Ravindar demand for DNA test. Justice Vipin Sanghi, while ordering for DNA test, observed that 'The parentage of the child can only be determined by a DNA test. The liability to pay maintenance under section 125 CrPC can be avoided by the petitioner with respect to this child only if it is established that he is not the biological son of the petitioner'.
Usually, law acknowledges a person as a biological father of a child if there is a birth certificate naming that person as the father of the child, or if there is any signed statutory declaration acknowledging paternity (a legal document which says that he is the father of the child), or if the child was born while two persons were married or living together, or if the child was born within some specified time (like 44 weeks) after the relation had broken down etc. With this judicial precedent, all these evidences became weaker because now onward the DNA test will exclude all other evidences and it will be treated as exclusive evidence in the court of law in case of paternity dispute.
While this is legal consequence of the High Court decision, here are some social impacts of the decision. A group of Indian citizenry is discontent with the decision because they think that now some people will demand the use of DNA test in other cases to prove adultery or paternity fraud creating harassment and social tension. Importantly, all of these cases will psychologically affect the child in question. In Indian society where woman's single parenthood is yet to recognize, where a child without father's identity is treated as illegal and huge social stigma is attached with it, when a mother cannot be a legal guardian for admission in educational institutions and for many purposes, the children with such disputes will psychologically suffer a lot. Not because of their own fault but because of their parents, their social position, respect and security will be affected.
The other group says there is no problem with introducing DNA test result as evidence in child maintenance cases. Rather not allowing DNA test in such dispute will create double standard, as already in criminal justice system in rape and child born out of rape cases DNA test is allowed to determine the criminal's identity and child's paternity. Hence, there is no logic in denying the benefit of the same scientific test when a woman is alleged to commit adultery and the evidence is claimed to be present there for the world to see in the form of a child. If in such dispute DNA test is not allowed, it will be a harmful endeavor to hide the social truth of adultery in Indian society. Also there is no logic in preventing a child from uniting with its biological father in the name of preventing psychological effect on the child.
The writer is an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. He can be reached at: zahid.bangladesh@gmail.com
First published in The Daily Star, Section: Law & Our Rights, Issue No: 72, June 14 , 2008
Also available at: http://www.thedailystar.net/law/2008/06/02/index.htm
****
Whether HIV should be a valid ground for divorce
Zahidul Islam Biswas
AN Indian court holding that HIV is a valid ground for divorce caused a huge controversy recently. The Indian society seems still divided on the issue of how the HIV infected couple should be dealt with legally. The Indian government figures the number of people in India with HIV/AIDS at between two million and 3.1 million, while UN Aids estimates there were 5.7 million cases in 2006. Hence, this is a grave issue for India. Though I don't have any data near to hand this moment as to how many people are officially figured as AIDS patients in Bangladesh, certainly the number is increasing day by day. So, it is an equally important issue for Bangladesh. Hence, the aim of this article is to stimulate the public thought over the issue by describing an Indian example.
Although I am yet to collect the controversial judgment that I have mentioned above, from the different Indian national dailies I can summarise the fact that a couple from Kerala had married in October 2000 and moved to the capital. Five months after their marriage, the wife was found to be HIV positive in a medical test conducted during her pregnancy. Tests showed the husband hadn't contracted the dreaded virus. The husband could not accept it, and moved to the court for granting him a divorce order. Following a long way of court proceedings, judgment came out on 1st November 2007, creating huge controversy among citizenry. What exactly was the decision of the court of law?
In a single sentence the decision was that a person whose spouse is found to be HIV positive is justified in seeking a divorce. Delivering the judgment, additional district Judge Rajnish Bhatnagar said that a person cannot live 'happily' with a spouse who has AIDS or is HIV positive. The judge thus granted divorce to a man whose wife was HIV positive, saying her ailment had prevented him from leading a 'happy married life' as the disease is sexually communicable.
The district court also held the petitioner's wife guilty of not disclosing her HIV positive state before marriage. According to a Supreme Court ruling in 1998, people who are HIV-positive must inform future spouses.
The court also observed that sex is an integral part of marriage and in this particular case the husband was deprived of that enjoyment. The HIV status of the wife no doubt resulted in non-enjoyment of sexual intercourse between the parties and marriage without sex is an anathema.
However, reaction to the decision is mixed. While the majority of Indian general people seem to have welcomed the decision, AIDS activists have expressed dismay over the negative impact of the judgment. Though they have termed the decision to seek divorce as a matter of personal choice, they are concerned about the negative impact that the judgment might incur on society's perceptions of HIV positive people.
While commenting on it, Dushyant Meher, and AIDS activist and AIDS programme coordinator of Salaam Balak Trust, said that 'this is a conflict between the rights of an HIV positive person and a healthy person. In this case, the court has given precedence to the rights of the healthy person'. He added that it also needed to be understood that 'the woman too has a right to family life'.
Parenthetically, I would like to mention another comment by an AIDS activist Anjali Gopalan, who pointed out in almost all cases where the man is HIV positive and the woman is not, the woman never seeks divorce. In response to the comment, some newspaper readers opined that here is no problem with law or court. If any wife seeks divorce from HIV positive husband, it is expected that the court will in the same way grant the wife the divorce permission.
However, the central argument of the AIDS activists is that HIV/AIDS patients are particularly vulnerable members of our society. The vast majority of people of our society are still unknowledgeable about what AIDS is, and how it is transmitted. Majority of them think AIDS is just a sexually transmitted disease, which is just a result of undisciplined, unusual and irreligious sexual practices. But this is a fallacy.
Unfortunately, this misconception or fallacy is dominant in our society. Still the people with HIV/AIDS are tested without their consent, their confidentiality is breached and they are discriminated against in providing medical treatment, in provision of services like employment etc. In the like way, in the society they lose their respect; they are avoided, if not boycotted. When this is the scenario, the judgment treating HIV as a ground of divorce will, on the one hand, help decline their social position, on the other hand, weaken their psychological strength. According to these AIDS activists, we must understand that HID/AIDS is not a crime for which one should get punishment, but it is a dreadful disease for which one needs proper treatment and social support, and judiciary should be concerned about their human rights.
While this is the argument of the AIDS activists disagreeing with the judgment, the legal basis of the judgment is easily understandable. Almost all marriage laws - for example, personal laws of Muslim, Hindu, Christian, Persian, as well as Special Marriage Act - provide the 'venereal disease' or 'sexually transmitted disease' as a ground for divorce to either husband or wife.
But at the same time, it is also true that it is neither just a matter of law nor a personal affair between husband and wife; it relates public health, society, religion and morality as well. The issue gives birth to many questions, such as, does the HIV positive patient who was once divorced on this ground have right to remarry? Or does an AIDS patient have legal right to marry when the disease is likely to affect his/her spouse? Does she have right to give birth to children, when the baby is like to be affected? Should there be a provision of producing AIDS certificate while entering into a marriage contract? Is it practicable in the socio-economic conditions in Bangladesh? Should there be a mandatory provision that the Bangladeshi people employed in foreign countries shall undergo HIV test when they are getting married or reuniting their families at home? Is it morally correct to do so? Or will it violate their human rights or right to privacy? Should their individual human rights be protected, or should the overwhelming public health interest be prioritised?
It is therefore a grave public concern that warrants a huge public debate and adoption of a public policy. If the issue of separation or divorce on the ground of HIV/AIDS is yet to visit the court rooms in Bangladesh, certainly it will do it soon. So, we must think of it now so that we can adopt an all agreed prudent policy that will ensure human rights of the HIV patients as well as public health.
Published in The Daily Star, Bangladesh on 17th November 2007
****
Hartal, recent SC judgment and vulnerable public interest
Zahidul Islam Biswas
Most of the newspapers reported the Supreme Court judgment on hartal on December 02, 2007 as: the Appellate Division of the Supreme Court overturned the High Court verdict that had declared violence and coercion for or against hartal a criminal offence. Though the crude form of the summary of the judgment is this, this created some confusion among public. Seeing the title of the news reports, some people just asked, how could Supreme Court declare the destructive hartal legal? Thankfully, some news reports were articulate to present the real fact of the case that is as follows.
The High Court Division on February 15, 1999 issued suo moto rule seeking explanation as to why call for and enforcement of hartal would not be declared illegal and a criminal offence. After hearing the case, on May 13, 1999 the High Court bench delivered the verdict declaring hartal a political and constitutional right. But at the same time the court declared violence and coercion for or against hartal (general strikes) a criminal offence and ordered the law enforcers and courts to take legal action against any person who would force anybody in favour or against hartal. However, the verdict was appealed against, and after eight years of the appeal, the Appellate Division took up the appeal for hearing on November 21 and delivered the judgment on December 02, 2007. This judgment has two important aspects; one the one hand, it uphold the HCD decision that hartal is a political and constitutional right, one the other hand, it overturned its declaration that violence and coercion for or against hartal is a criminal offence. As per Supreme Court observation, for legal action against any person for any law and order infringement, provisions are already there in criminal laws, including the Code of Criminal Procedure and the Penal Code; hence there is no need to declare such infringements criminal offences.
This judgment is not at all unexpected to the people who are aware of the recent decisions of the Supreme Court on the similar issue. In 2000, in Khondoker Modarresh Elahi Vs The Govt of Bangladesh case (21(2001) BLD (HC) 352), the High Court Division observed that hartal, as a democratic right, should be observed as well as should be allowed to be observed peacefully without resorting to any illegal activities. Of course, on 10 June 2007, a High Court Division bench, following a public interest litigation, imposed a ban on the Awami League-led opposition combine's 'siege of Dhaka' on June 11. But the order was criticised and went unheeded. Maybe, this experience has restrained the Supreme Court to take a quite opposite decision declaring hartal illegal and hartalio destruction as special criminal offence, which many think would have been most welcome by the majority of the pubic. Or, maybe, the Supreme Court did not want to exceed the constitutional limit in the name of judicial activism. In India, the High Court of Kerala, in the case of Bharat Kumar Palicha and another Vs State of Kerala and others, AIR 1997 (Kerala) 291, held that the calling for and holding of bundh (hartal) by political party or organisation involves a threat expressed or implied to citizens not to carry on their activities or to practise their avocations on the day of bundh. It violates the fundamental rights of the citizens. The Supreme Court of India by its judgment reported in AIR 1998 (Supreme Court) 1984 upheld the judgment saying there was no right to call or impose bundh which interferes with the fundamental rights of freedoms of citizens, in addition to causing loss in many other ways. This public welcome judgment of the Supreme Court is still criticized by the Indian politicians as well as jurists as 'judicial over-activism'. However, this write-up is in no way to analysis the Supreme Court intent behind this judgment, rather to see the significance of this judgment in terms of securing public interest. Whatever be the normative character of a hartal, the actual character of hartal as we observe is that during hartal citizens are prevented from attending to their avocations and the traders are prevented from keeping open their shops or from carrying on their business activities. Also, the workers are prevented from attending to their duties in the factories and other manufacturing establishments leading to loss in production causing nations loss. And after every hartal, with our painful eyes and heartbreaking sighs, we are to see in the newspapers and televisions the pictures of wanton acts of vandalism like destruction of government and private properties, transport vehicles, private cars and three wheelers as well as rickshaws. Hence, to the citizenry hartal is another name of 'anxiety', 'insecurity', 'uncertainty', 'threat' etc.
Undoubtedly, this judgment of the Supreme Court will not bring any change in the status quo. It has very little to remove this clear public concern and secure the greater public interest. The Supreme Court in 2000 in Khondoker Modarresh Elahi judgment observed that calling for hartal, not accompanied by any threat, will be only an expression guaranteed as a fundamental right under the Constitution. And, therefore, any political organisation may call 'hartal' by calling upon the people in general or to a particular class or group of people to observe it. But the freedoms as enunciated in the constitutional provisions cannot be construed as a license for illegality or incitement to violence and crime. Hence, any attempt to enforce it or ensure that the hartal is observed makes the call illegal, resulting in interference with individual rights. At the same time, any kind of provocation, instigation, intervention and aggression by anti-hartal activists to foil the hartal is also unlawful. In other words, hartal, as a democratic right, should be observed as well as should be allowed to be observed peacefully without resorting to any illegal activities.
This observation and suggestion of the Supreme Court had little influence on the politicians. Bangladeshi people know how capriciously and whimsically political parties in 2000-2006 called for hartals and sieges, how they had stanched away citizens' fundamental human rights in the name of exercising a political right, how they made people guinea pigs of politics, and how they threatened the democracy and ultimately replaced the democratic and constitutional government with an unelected government.
In the like way, though there are legal provisions in the ordinary laws of the land, e.g. Code of Criminal Procedure or the Penal Code, these will help a little to save people's individual fundamental human rights and to get redress for the financial and other harms caused by hartals. Understandably, ordinary citizens from remote nooks and corners of the country will not be able to seek protection of their fundamental rights under writ petition. And for some practical reasons legal action under ordinary laws becomes impossible when the perpetrators of criminal activities during hartal are not traceable or recognisable. Again even if sometimes the culprits are recognisable, an ordinary citizen can not take legal action against them when the culprits are political goons backed by powerful politicians. When the thana police is not much helpful and lower judiciary is not independent and prompt (practically, though not theoretically), ordinary citizens cannot rely on these legal provisions. In absence of options for public interest litigation or representative case on behalf of the victims of hartal and in the absence of the vicarious or strict liability, that is, the leaders or callers of a hartal are liable for any type of harms caused by hartal irrespective of their actual participation in that destruction, perpetration or injury etc., the ordinary law is unable to safeguard larger public interest.
In fact, hartal as a political right is very much clashing with some other fundamental rights like right to liberty, movement, work, conduct business etc. These individual human rights and hartal as political right cannot coexist peacefully. It is an impossible situation that hartals are being peacefully observed and at the same time people are getting their rights protected. Either hartal or other individual rights have to do away with the other or others. Question is which right is to do away with which one? Certainly, this is not the judiciary to decide which right/s will get priority. Nor is it the politicians. Politicians of the country have lost all their right to decide this question. Hence, it is the public in general, which will decide whether they will allow hartal to exist as political right.
A UNDP special report on hartal revealed that hartal had cost Bangladesh 3/4 per cent of its GDP on an average every year between 1991 and 2000. No doubt, the cost of hartals in between 2001 and 2006 would have been similar or more, if it had been calculated. Hence, from public debate it moved to the Supreme Court. After a long waiting of eight years, the Supreme Court now gave its decision. I don't think the ordinary citizens are happy with this judgment.
A good portion of the citizenry thinks that hartal had outlived its purpose as soon as the democracy was restored in 1991. According to them, when there was a democracy, there was a live constitution, there were free media, right to free speech, and above all, there was a live parliament, there would have been no argument for hartal. In the above-mentioned conditions allowing hartals meant our parliament was dead and we could not claim our demands in a civilised way or we could not ventilate our grievances soberly or intellectually.
By the way, an UNDP conducted opinion poll on hartal that covered 3,000 respondents from different walks of life revealed that 55 per cent of the respondents perceived hartal as an ineffective political tool against 38 per cent who believed it was somewhat or very effective. Again, in The Daily Star, 17 December 2006 a report showed that 90 per cent of the public interviewed in the opinion poll opined that hartal should be stopped.
However, an inclusive and conclusive judgment from the public is yet to come. Legally, members of the parliament (MPs) are taken to be the representatives the common people, and their judgment is the people's judgment. But in practice, the MPs these days do not represent the desires of the mass of the people. Majority of the citizens thinks that they usually serve the interests of the political parties they belong to. Hence comes the question of referendum. Though constitutionally the issue of hartal might not suit the requirements needed for a referendum, but for practical reason, at least for asking people their opinion as to hartal, it should be done. After all, a destructive political right like hartal cannot be allowed to exist without clear peoples' mandate.
Published in The Daily Star, Bangladesh on 15th December 2007.
No comments:
Post a Comment