Bangladesh News

Legal experts and rights activists yesterday said dealing with corruptionists ‘leniently’ through setting up the Truth and Accountability Commission (TAC) might create an imbalance in the country’s justice system and damage the spirit of the ongoing anti-corruption campaign.

By giving some corrupt people an opportunity to avoid imprisonment by confessing before the commission and surrendering their ill-gotten wealth to the state exchequer, the government is breaking away from the existing legal system which has the provisions for both jailing and fining for the crime, some experts noted.

The prevailing situation in the country is not so grievous or warlike that it requires showing mercy to people engaged in crimes like corruption, they told The Daily Star yesterday while commenting on formation of TAC that received the final cabinet nod on Sunday.

The government said TAC will be formed to curb corruption and reduce the massive load of corruption cases through promulgation of the Voluntary Disclosure of Information Ordinance 2008.

Pointing out discrimination in allowing recourse to TAC, constitution expert Shahdeen Malik said, “Some corrupt persons going to prison after court trials and others going scot-free by presenting themselves before the commission will probably make the ordinance unconstitutional, if challenged in the Supreme Court.”

Terming the ordinance ‘wrong on several counts’, he said corruption will become a minor crime for which a corrupt person will not suffer imprisonment, in exchange for only a monetary fine.

“The new ordinance will also make corruption an administrative matter, not a crime, because it will be dealt with by a commission instead of a criminal court,” he said.

The provision for appointing retired chief justices or judges to the commission might affect the neutrality and impartiality of sitting judges because it opens up positions for them after retirement, Shahdeen Malik said adding, “Originally, article 99 of the constitution prohibited any appointment of judges after retirement.”

Like many others, he also thinks the government move might end up encouraging corruption instead of containing it, as corruptionists now know they can escape imprisonment by surrendering their ill-gotten wealth.

“We’ve heard there’ll be a provision for keeping their [corruptionists] identities secret.”

Prof Muzaffer Ahmad, chairman of Transparency International Bangladesh, also does not consider reducing only the load of corruption cases as enough ground for forming such a commission.

“If tried under the existing legal system, one faces both imprisonment and fine for corruption. When you are withholding one of the penalties, you’re violating the law. Such a violation under an unelected government will be more harmful.”

“It will create a precedence that might lead to a situation when we’ll not be able to contain corruption,” he added.

Pointing out that all corruption suspects will not have recourse to TAC, Prof Muzaffer said, “If that implicit discrimination weakens the purpose of the Anti-corruption Commission’s drive, we will revert back to the pre-1/11 days.”

Stressing the need for carefully avoiding any negation of the purpose of a greater social reform, he said those who will be in the commission will have to show utmost wisdom, care, and transparency while carrying out their duties.

Terming the move as unprecedented, Sultana Kamal, executive director of Ain O Shalish Kendra, said there are already laws and provisions under the Emergency Power Rules for trying people for corruption and for penalising them with both fines and imprisonment.

“Dealing with some people in a different way for corruption will create discrimination in the overall justice system,” noted the former adviser to a caretaker government.

Citing the example of the South African Truth and Reconciliation Commission which was set up to help deal with violence and human rights violations from all sides under an apartheid regime, she said, “The circumstances here are not appropriate for forming such a commission. It’ll raise many questions.”

Eminent lawyer M Zahir said, “There seems to be no criterion as to when and under what circumstances the commission will exonerate an accused.”

Since the commission will exercise quasi-judicial powers, it might end up exonerating persons who have committed offences under the anti-corruption laws and the penal code. Therefore, its orders will be subject to scrutiny by the Supreme Court.

“But a retired chief justice or a retired judge of the Appellate Division of the Supreme Court being the head of the commission, I’m confident the commission will exercise its duties impartially,” he added.