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Hartal, recent SC judgment and vulnerable public interest
Zahidul Islam
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Photo: Shahidul.wordpress |
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. 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.
The author is an advocate of the Supreme Court of Bangladesh, currently with the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.
