Tuesday, November 13, 2012

Detention habeas corpus: 'Rejected as not pressed'

The High Court today (Tues, 13 Nov) passed the following order in relation to the Habeas Corpus application relating to the alleged abduction of one of the International Crimes Tribunal defense witness: 'Rejected as not pressed'.

[Read here about the abduction; here about the ICT response; and here about what was argued in the High Court'

So what does the order mean, and what happened in court?

When the matter came up before the court, Justice Naima said, 'I am going to pass an order'. Apparently since she did not say that she was going to pass a 'rule',  to the defense lawyers in the court room sthis indicated that she was going to reject the application and not pass a rule.

Immediately, Barrister Rajjak got up and said, 'Since you are going to reject the application, I have two submissions. First that you allow me to take the application back from the court  and secondly, that you pass an order as 'rejected as not pressed.'

Justice Naima said that since the case has been argued before the court at some length and we are about to give an order, we cannot give the application back. However she then agreed to pass an order that the application was 'rejected, as not pressed'.

What does that mean? That means that the defense lawyers can, if they so wish, go to another court with the same or similar application - though they must inform the court about this court order. That is to say that they get a second bit of the cherry!.

Courts giving orders of this kind - either by allowing the petitioner to take the application back or by passing orders of 'rejected as not pressed' - which allow petitioners to argue the matter again before a court that they consider may be more favorable to their application is common practice in the High court of Bangladesh. Lawyer of all kinds do it, and courts allow them to do so. It is common practice, and Barrister Razzak just took advantage of it.

However it is extraordinary that the courts allow this practice. On Sunday over a period of more than an hour this court heard both the petitioner and the Attorney General. It was a full and proper hearing. So the court should give its order - whether it is favorable or not to the applicant. And Rajjak can appeal it before the appellate division, if the order goes against him.

No doubt Rajjak was thinking that it could take a long time before the matter was heard in the appellate division, and perhaps for his client what he did was the best thing as it gives an opportunity to argue the matter before another court which might deal with it more favorable. But this is not how the High Court should operate.

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