Attorney General Attacks Right to Represent Prisoners

BANGLADESH: Attorney General Attacks Family's Right to Represent Prisoners

On 18 April 2013, the Attorney General for Bangladesh Mr. Mahbubey Alam participated in the hearing of a writ petition before a High Court Division Bench of the Bangladesh Supreme Court. The writ was filed by Mrs. Firoza Mahmud, wife of Daily Amardesh's Interim Editor Mahmudur Rahman. Mrs. Mahmud had challenged the order of the Chief Metropolitan Magistrate's Court, Dhaka, for sending Mahmudur to police remand in violation of the jurisprudence of the Supreme Court.

The petitioner's counsel, Mr. A.J. Mohammad Ali, former Attorney General for Bangladesh submitted that the High Court Division, in its judgment, had passed a set of directives regarding sending Mahmudur to police remand. He alleged that the Magistrate’s Court did not abide by the directives of the High Court Division while entertaining the police application for taking Mahmudur in 'remand', and that the Magistrate's Court granted 13 days police remand in violation of the jurisprudence of the High Court Division.

A report published in the online edition of New Age, a Bangladesh daily newspaper, on 19 April 2013, cites the arguments of the Attorney General. According to the report, Attorney General Mahbubey Alam,

“leaded for summarily rejecting the writ petition saying that it was not maintainable as it was filed by Mahmudur Rahman’s wife who was not aggrieved. Mahbubey argued that the High Court had issued the 15 directives regarding remand, arrest and interrogation on a writ petition challenging the legality of arresting suspects under section 54 of CrPC (suspicion) and the judgment would not be applicable in the case of Mahmudur Rahman who was arrested on specific charges brought against him in three cases.”

When any person is detained, she or he is deprived of the possibility of making applications to Court, for bail or any other matter. The detainee is not at liberty to move out of jail / remand prison and appear before Court in order to make an application on her or his own behalf. A detainee is also not at liberty to meet with her or his lawyers and to give instructions for her or his release. She or he is also not able to gather all the information and documents needed to file such applications in Court. Besides being a prisoner, immobile, she or he does not have the resources to pay for lawyers or to pay for obtaining documents and other materials, or for any other matter linked to the filing of applications before Court.

Therefore, the prisoner has to depend on others at liberty to file applications before Court for bail or any other matter. Prisoners must either be aided by others or they will be deprived of the ability to bring to any matter before the notice of the Court. If a detainee is prevented from getting the help of outsiders for filing applications in Court for bail etc., the result would be that the person will fail to seek and avail any kind of relief or redress from the Court.

In a legal system based on the rule of law, no person can be deprived of the right to request the Court for relief. To create any kind of obstacle for a prisoner, preventing her or him from seeking relief from the Court and informing the Court about any relevant matter, amounts to reducing a human being to that of a slave. It snatches away from the detainee all the rights she or he has as a legal person. Slaves are the only category of human being not considered by law as legal persons. When a prisoner is deprived of the right to resort to Court, she or he is reduced to the state of being a 'non-person'.

It is also universally recognised that nearest kith and kin are most entitled to make an application for those whose liberty has been suppressed and are unable to come to Court directly. Amongst kith and kin, a wife or a husband, are the closest. The right of a wife or husband to approach a Court on behalf of their spouse, who is temporarily deprived of liberty, is a principle known to the whole world where the right to resort to a Court is recognised.

The deprivation of the liberty of an individual affects not only the detainee's own self but their family, especially their closest kith and kin. Depriving them of the right to seek relief on behalf of their detained family member, who is deprived of liberty, is an affront, to both the detainee and the family members. It is a direct assault on the very notion of the family itself.

It is strange that the Attorney General of Bangladesh is unaware of these basic principles that are respected under all legal systems where there is some respect for the rule of law. A person who could utter in Court that a prisoner's wife does not have the right to file a writ petition on his behalf is surely unfit to hold any legal position, let alone the post of Attorney General.

On the other hand, if the Attorney General knows of the gravity of the rights involved in the situation of the imprisonment of a family member, and deliberately tries to mislead the Court then isn’t this worse? An Attorney General's role is not to mislead the Court but to assist the Court to come to proper legal findings. If the Attorney General is a misleader, then he is undermining the whole legal structure.

It may be that today political affiliations and loyalties have become much more important than the law and legal obligations. The Attorney General may have become a mere pawn in the hands of powerful politicians and thus find himself unable to represent proper legal positions before the Court. Do political loyalties compel him to lie and mislead the Court?

The implications become more grave in this case, as the Attorney General could presumably know that the detainee in question, Mahmudur Rahman, is likely to have been tortured in custody. In circumstances where a person has suffered torture, the duty of the Attorney General is not to act as the victim’s enemy, but to act as the highest legal officer representing the true principles of law. If the Attorney General regards himself as an enemy of any citizen, he is not fit to hold this important role.

Political slavery has perhaps even led to the point where the rights of a prisoner to represent himself through his spouse are being challenged, not only by the regime in power, but also by the Attorney General, the highest legal officer in the country.

On 21 April 2013, the High Court Division Bench rejected the writ application made on behalf of Mahmudur Rahman. If the reasoning behind the Court’s rejection includes acceptance of the Attorney General’s argument that the wife of the petitioner has no locus standi to make bail application on behalf of her husband, then the decision would negate some basic principles on which the rights of prisoners are enshrined in common law.

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