Pakistan Observer
10th August 1967
AROUND THE COURTS
Majority of Special Bench uphold Mujib’s detention
(By Our High Court Correspondent)
A Special Bench of the Dacca High Court by a majority of two to one Judges upheld the detention of Sheikh Mujibur Rahman, the Provincial Awami League chief, under the provisions of the Defence of Pakistan Rules on the charge of indulging in prejudicial activities.
Mr. Justice Baquer and Mr. Justice Abdul Hakim of the Bench held that the activities of Sheikh Mujib as placed by the State if considered as a whole, would show the subjective satisfaction of the detaining authority in passing the impugned order of detention of Sheikh Mujib.
Mr. Justice A.M. Abdulla of the Bench did not agree with the above view. According to him the impugned order of Sheikh Mujib’s detention was unwarranted under the fact and circumstances.
Mr. Justice Baquer while delivering the judgment (with whom Mr. Justice Abdul Hakim concurred) said that he has gone through the affidavit filed by the State in which the prejudicial activities of Sheikh Mujib were catalogued. The Judge also said that he has considered the reply of the detenu. The allegations of the State against Sheikh Mujib ranged from delivering prejudicial speeches in different meetings and creating hatred between the two Wings of Pakistan.
The detenu however, denied all the allegations. According to him, he was working for a stronger Pakistan on the basis of justice to all. He therefore, demanded complete provincial autonomy for both the Wings of Pakistan on the basis of Lahore Resolution of 1940 moved by the great leader of Bengal the Sher-e-Bangla A. K. Fazlul Huq. He denied having indulged in any prejudicial activity.
Mr. Justice Baquer held that reading as a whole the catalogued allegations against Sheikh Mujib, “We are not convinced of the innocence” of it.
Mr. Justice Abdulla in his separate judgment said that admittedly (which was not denied by the State) Mujib was a political leader and was first a member of Muslim League and fought for Pakistan. Now he was the President of the Provincial Awami League and in that capacity he formulated a “six-point programme mainly to remove disparity between the two Wings of Pakistan and to achieve complete provincial autonomy for both the Wings as he thought Pakistan could thereby be founded on a strong footing. The Judge said that a Bench of this High Court (consisting of Mr. Justice Baquer and Mr. Justice Abdul Hakim) earlier held that “six-point programme by itself was not prejudicial. On the basis of these facts the Judge said that it was obvious that when occasion arose. Sheikh Mujib in his capacity as the President of the East Pakistan Awami League would criticise the actions of the Government in the light of the “six-points”. But “we are to see if the criticisms were violent and exciting and if any unwanted incident occurred due to that” , the Judge observed.
Mr. Justice Abdulla further observed that the State could not place any material whatsoever to show that the activities of Sheikh Mujib were exciting. The expression “exciting’ used by the State in the files was only their presumptions.
Mr. Justice Baquer said that in considering a detention case it should not be lost sight of the fact that the law was not only retrospective but also prospective. So, the detaining authority could also consider the likelihood of the detenu’s indulging in prejudicial activities after his release.
His Lordship was referring to the contention made on behalf of the detenu that the last order of his detention was passed on May 29, 1967 though the last but one order of his detention expired on May 3, 1967 and, in between, he was detained without any authority.
It was also contended on behalf of the detenu in this connection that since he could not indulge in prejudicial activities during the interregnum (from May 3 to May 29), the last order had no basis. In this connection Mr. Justice Baquer considered the statement made on behalf of the State that since Sheikh Mujib was detained due to a conviction, the necessity of passing any detention order did not arise.
Mr. Justice Baquer held that the detention order might be passed prospectively to stop a person from acting in a prejudicial manner in future.
Mr. Justice Abdulla said that the detaining authority was the Deputy Commissioner of Dacca, and he must be satisfied personally as to the prejudicial activities of the detenu. In the present case a Section Officer of the Provincial Government came to depose. Neither he nor the Provincial Government was the detaining authority and the Deputy Commissioner of Dacca did not come before the Court to justify his actions, the Judge observed.
In the files produced before the Court the allegations against Sheikh Mujib of prejudicial activities located at different parts of the Province (and beyond Dacca). If these were also considered by the Deputy Commissioner, Dacca, before whom legitimately these facts could not come, the detenu at once deserved a release order he said.
The satisfaction must be subjective of the detaining authority and for this reason his Lordship dissented with the majority Judges of the Full Bench (that earlier held the detention of Sheikh Mujib as valid) to hold that the High Court had right to scrutinise the veracity of an order of detention, the Judge said. His Lordship said that the Supreme Court upheld his view and referred this case for re-hearing (as stated below).
Mr. Justice Abdulla said that while considering the prejudicial activities of the detenu, the facts that supported his innocence should also be considered together. His Lordship then referred to the speech first delivered by Sheikh Mujib condemning the Indian aggression which was broadcast from all stations of Radio Pakistan and in which he called upon all concerned to unite and fight.
His Lordship also said that while applying the Defence of Pakistan Rules to detain a man, it must be shown that his activities were related to the defence of Pakistan or the state of war.
To deal with other kinds of prejudicial activities, the Public Safety Act was inexistence and the Provincial Government was powerful to apply that law. In the present case the application of the Defence of Pakistan Rules was bad, the Judge said.
On a prayer made on behalf of the petitioner, the Court was pleased to certify that this was a fit case for appeal to the Supreme Court.
This judgement was delivered after the re-hearing of the habeas corpus petition filed by Rezaul Mallik.
A Full Bench of five judges of the High Court earlier heard the petition and by a majority held the detention of Sheikh Mujib as valid. The majority view was that the High Court could not question the subjective satisfaction of the detaining authority as to the grounds of detention.
On appeal the Supreme Court held that the High Court had right to verify the justification of a detention.
The relevant portion of the Supreme Court’s order which is the foundation of the re-hearing of the case is as follows:
“The majority (4 to 1 Judges of the High Court) decision has upheld the validity of the detention of Sk. Mujibur Rahman. The detention was under Rule 32 of the Defence of Pakistan Rules and although the order of detention itself disclosed no grounds, the High Court relying upon the affidavit filed on behalf of the Government of East Pakistan took the view that since the satisfaction of the detaining authority is a subjective satisfaction. It was the sole judge of the facts, namely as to whether a particular activity of a particular citizen will in any way directly or immediately affect the society or the defence of the State or not.
“The learned judges in majority were of the opinion that for a court to go beyond this question, would amount to satisfying its mind for that of the executive without being in possession of facts and also not being authorised to do so.
“This conclusion is contrary to the view taken by this court in its recent decision in the case of Malik Golam Jilani wherein it has been held that even the orders of the executive passed under the Defence of Pakistan Rules are not immune from judicial review. It is for the courts to be satisfied that reasonable grounds existed upon which the satisfaction of the detaining authority could be grounded and that such grounds were reasonable and within the ambit of the law authorising the detention.
“The High Court can and should consider and reach a conclusion as to whether, upon the evidence placed before it, justification existed for the satisfaction expressed by the Deputy Commissioner”.
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