Rule of law for Kajol indeed

A journalist, Shafiqul Islam Kajol, disappears on March 10 following the filing of a case under Digital Security Act (DSA) by Saifuzzaman Shikhor. Video footage shows evidence of some people surrounding his motorbike as he is about to leave his office in Hatirpool in the evening. Two police stations – Chawk Bazar where he lives and New Market where his office is – refuse the family's plea to file a case of disappearance. On instructions from high-ups, Chawk Bazar Police Station finally accepts it. He stays untraced for 53 days during which police do nothing except saying that they are looking into the case. A citizen of the country, a journalist, a family man, a father, a husband, a taxpayer - nothing moved the police to investigate what became of him.

Then much to our relief and elation of the family, through a sudden early morning phone call, at 2:48am on Sunday, May 3, courtesy the Benapole Police station, Kajol told his son, Monorom Polok, that he is alive and that Polok should come to Benapole to bring him home.

Kajol was "discovered" by a BGB patrol very near the India-Bangladesh border who, after initial questioning, handed him over to the police. The Benapole police identified him, contacted his family and charged him with illegally entering Bangladesh under the Passport Act, a crime punishable by a Tk 500 fine or three months in jail.

The news of his sudden appearance went viral on the social and online media as journalists and concerned citizens followed developments every step of the way, anxiously waiting for Kajol to be released and reunited with the family. What remained, everyone thought, was the simple formality of a court appearance and obtaining a routine bail.

Much to the shock and disbelief of all concerned, Kajol was brought to the court, his hands tied behind his back with handcuffs. No regard was paid to his dignity of person. Police had no reason to enchain him in handcuffs which are usually used while handling terrorists or people accused of crimes like murder, rape, criminal assault or some such violent crimes. None of this applies in the case of Kajol who has been missing for 53 days.

The story does not end there. Suffering the humiliation of being handcuffed, Kajol appears in court and obtains bail and is all set to be reunited with his son when the police arrest him again under section 54 of CrPC because there are some cases against him in Dhaka under the draconian and controversial Digital Security Act.

Kajol's nightmare started when the well-known daily Manab Zamin published a story on March 2, on the expelled Jubo Mahila League leader Shamima Nur Papia, saying that she has disclosed, under interrogation, many names of people who have helped her or benefitted from her notorious activities, without mentioning any names. But many people, including Kajol, shared this story on their Facebook pages inserting names of some people, including that of the ruling party MP, Saifuzzaman Shikhor, who, on March 9, filed cases under the Digital Security Act(DSA) against the editor and reporter of Manab Zamin and 30 others. Of the 32, Kajol's name was the first. On the day following the filing of the case, Kajol disappeared.

So what does immediate future hold for Kajol? According to Jashore Kotwali Police Station OC, Moniruzzaman, "He has been arrested under section 54 because he has three cases under DSA and he is being held in prison so that the relevant courts can process arrest warrants against him and take him to Dhaka. He has been sent to Jashore Central jail where he will be under quarantine for 14 days." It is clear from the above that section 54 was used to detain him while other arrest warrants were being prepared. This is in clear violation of the 14-year old ruling of the High Court Division, subsequently upheld by the Appellate Division in 2016, which lays down clear guideline under which section 54 is to be used, if at all. The way the Jashore Kotwali Police Station used section 54 was a clear violation of this Appellate Division guideline. And now, according to family sources, he is unable to file his bail petition because the court is closed for the pandemic.

Such is our rule of law that a photojournalist disappears for 53 days and not a finger is lifted to find him. Now that he has surfaced, suddenly our law enforcement bodies are on an overdrive to keep him in prison under different laws and denying him his fundamental rights. When the court grants him bail under one law, he is immediately detained under another. Not only that he is kept confined and denied freedom, he is humiliated in public with handcuffs and treated like a common criminal and under the guise of quarantine denied family visitation.

In addition to the duplicity of the law enforcers, Kajol is being made a victim of the complexity of our legal system. As the court is closed, he cannot avail of any immediate step to get legal relief.

So does dispensation of justice stay on hold when courts are closed? We vigorously assert that as long as the Constitution exists so does all the fundamental rights guaranteed by it. So what happens to protection of fundamental rights for individuals when courts are not functioning? Usually when violation of fundamental rights occur a citizen can and does go to higher courts to seek justice. Even during normal recess there are vacation benches to take care of urgent matters.

So, is Kajol to be denied his constitutional rights and rot in the jail just because courts are closed due to a virus? If we are to believe in that age old dictum that "justice delayed is justice denied" then whatever delay is caused by courts being closed amounts to "denial of justice" for those affected, like Kajol.

We appeal to the higher judiciary to kindly consider the case of fundamental rights guaranteed by the constitution. The notion of "complete justice" under Article 104 may be considered to find a way out in this situation. Here we would like to suggest that if courts are unable to function physically, newer methods of accessibility to courts and dispensation of justice may be considered. In this regard, the idea of virtual courts may be thought of as has been done in India. And why not, when the whole society is going digital so should the courts. In fact, when physical constraints are removed it may lead to a justice system closer to the people.

While the general issue is being considered we appeal to the office of the Chief Justice as to whether the case of Kajol can be brought to its cognisance and he be ensured his constitutionally guaranteed fundamental rights.

A parting note. Kajol, a photojournalist, was humiliated in public with handcuffs on the World Press Freedom Day. How ironic.