With due respect for our High Court and Appellate Division judges, we humbly draw their kind attention to our front page picture of 14-year old Monir and urge them to read his story and that of the 8-year old Shumi. Our appeal is extraordinary and we beg the courts’ pardon. We have nowhere to turn to but to the custodians of our constitution of law and citizens’ rights. We also appeal because higher judiciary is the most trusted and revered organ of the state and the last refuge of helpless citizens.
Tragically there will not be any justice for Monir and Shumi and thousands like them. Police will draw up a huge list of randomly chosen suspects, arrest a few caught red-handed or obvious ones and for the rest, ‘transacions’ will take place, while the nation’s attention shifts to other violence and the coming election. Since Monir and Shumi are children of the poor, media will forget them, as we usually do with cases of the underprivileged class. And if the opposition comes to power, all the accusd will be released as victims of “politically motivated cases”.
In May 1999, our honourable High Court had declared hartal a constitutional right but termed criminal its forced enforcement. In 2007 the Appellate Division upheld the first part of the HC verdict but overturned the second part.
Our political parties interpreted this verdict as a carte blanche in doing whatever they pleased before and during hartals. The result is Monir and Shumi and dozens of others killed, burnt and maimed in the last few days. It will easily reach thousands if we count the hartal deaths over the last several years.
On Monir and Shumi, Mirza Fakhrul, acting secretary general of the BNP, said the government is responsible. Just one phrase – “government is responsible”. The logic is as simple as it is unconscionable — BNP and its allies have made a demand and till it is accepted they are free to burn the Monirs and the Shumis of Bangladesh. There is no need for any discipline, any cautionary word or any restrain for what their activists do, leave alone any accountability.
No remorse, not a single word of sympathy, no trace of concern for these young lives. We would like to ask just one question to Mirza Fakhrul, what message have you given to those who actually lit the fire that burnt Monir and Shumi? Haven’t you given them a green signal to repeat their heinous act? Is this the kind of politics you want or you can live with? Can you govern the country, if you come to power?
We can almost visualise angry BNP reaction saying, The Daily Star and this writer are behaving as if nobody ever died or was burnt in hartal violence before. They will at once bring out a plethora of examples of such incidents committed by the AL while in opposition. The truth is they are most likely to be right.
So, wrongs committed by one side will continue to be used to justify the wrongs committed by the other, and murderers will be replaced by other murderers. Only their identities will change.
The blame game will continue to be played and we will continue to destroy ourselves waiting to “vote” the same or the other party to rule us, most likely in the same vein.
We are certain our Lordships did not have this kind of hartals in mind when they declared it a “constitutional right”. We plead that they revisit the issue. The question our Lordships may wish to ask is what is the responsibility of our political parties while they enjoy their “constitutional right” of calling hartals? Every right in a civilized society has a commensurate responsibility. So what is the responsibility of our political parties while they enjoy their “constitutional right”? Just to say that “government is responsible”?
While our judiciary declared hartal a constitutional and political right, in neighbouring India, higher judiciary has held a dramatically different view.
It was Kerala High Court that first ruled, in a landmark judgment in 1997, that forced bandhs (comparable to our hartals) were illegal. The decision was upheld by the Supreme Court in 1998. Further to this judgment, the Indian Supreme Court in 2002 declared all forms of forced stoppage of public activities as illegal. In July 2004 Bombay High Court imposed on Shiv Sena and the BJP a fine of Rs 20 lakh each for organising the Bombay bandh (hartal) in 2003. In November the same year Kolkata High Court declared illegal and unconstitutional, the Bangla Bandh called by the Trinamool Congress and directed the party to withdraw the call and publish its withdrawal call in the media. In 2006 Kerala High Court asked the Election Commission to deregister the political parties calling bandhs. In June 2007, The Supreme Court took notice of the bandh called in Delhi that cost the city Rs 700 crore.
The petitioners in the landmark Kerala judgment were two private citizens and the various chambers of commerce in the state. It was contended that bandh should be declared “unconstitutional” as they violate articles 19 and 21 of the Indian constitution.
The Kerala High Court held that the calling of bandh by any association, organisation and political party and its enforcement is illegal and unconstitutional. The court took the view that organisations which call for such bandhs and enforce them are liable to compensate the government, the public and private citizens for the loss suffered by them due to the resulting destruction of private and public property. This judgment was appealed and the Supreme Court upheld the decision.
We cite the Indian judgements because in South Asia it is a common practice to learn from the judgements of each other’s higher courts. We also do so because of the prevelant practice of “persuasive authority” in South Asian judiciary.
Time has come for our judiciary to think in these lines. Why shouldn’t our judiciary come to the rescue of the public when our elected representatives refuse to do so?
Over the last 23 years, while we have had democratically elected governments in office and fully elected parliament in operation each successive opposition, instead of taking their legitimate and rightful place in the Sangsad, deliberately boycotted it and violated the rights of the citizens by imposing hartals, at a great cost to their personal liberty and to the national economy.
Today, we, the citizens, are at the mercy of activists of political parties who think nothing of killing, injuring on setting people on fire to enforce their hartals.
We now hear that political parties are “outsourcing” violent activities to local (mohalla) or area based hooligans who are paid on the basis of how many cars, buses and CNG autorickshaws they have been able to attack, damage or burn. It is said part payment is made in advance and the rest is paid after “proof” of performance which is usually pictured in their mobile phones. The ruling party and its allies have their own scheme of violence in the name of preventing hartal.
In addition to the rising violence during hartals, we have sadly noticed the rise of another phenomenon, which is pre-hartal violence.
This year a total of 17 people were killed and 681 injured so far only in pre-hartal violence. Besides, a total of 118 vehicles were burnt and 306 vandalised (source: Star reports). These refer to events on the eve of hartal, and not during hartals or other events.
What is the difference between hartal and pre-hartal violence? About hartals there is at least a pre-announced timing. It was declared that the currently running 60-hour hartal would start at 6:00am Monday and end at 6:00pm Wednesday. But on the day (Sunday) before the hartal, especially in the evening prior to it, we saw a spurt of violence in which both public and private properties were destroyed.
What is the rationale for this violence? Why should we, as citizens of a country under law, with clear and specific rights and obligation given to us by our constitution, suffer such mindless violence?
In view of the above and the court judgments delivered in neighbouring India, we make the following appeals to our higher judiciary:
1. To examine the issue of rights and obligations of political parties while they enjoy their “constitutional right” to call hartals;
2. To consider the rights of the citizens during the pre-hartal period when a political party has not called for hartals, and as such the question of the political parties’ enjoying “constitutional right” has not yet come to play;
3. To consider that political parties who call for hartals must ensure that pre-hartal violence does not occur, and if it does then leadership of the parties calling hartals must be held liable.
Hartals, as long as they are participated voluntarily, is a part of democracy. Moment they are coerced it is dictatorship. The two situations cannot be treated in the same manner. Today’s hartals are not only coerced but imposed in the most vicious and cruel manner as we see from the fate of Monir and Shumi.
Will the custodian of the constitution and of all human, civic and polical rights still not come to our rescue when the most perverse and inhuman violation of our rights are taking place?
P.S. The only time any of our political parties ever took any responsibility for the crimes committed during hartal was on 5th December, 2012 when Jamaat-e-Islami party, after an attack on a US Embassy car, stated “We accept the responsibility for this unfortunate incident. We condemn it. We offer our apology to the US Embassy and to the victims and we will provide compensation.”
We are happy that the US Embassy got an apology and compensation. We would have been happier if our own people — killed, maimed, injured, burnt, and whose properties got vandalised — received similar sensible consideration.
Source: The Daily Star