Pakistan Observer
26th July 196
Sk. Mujib’s detention case Special Bench starts rehearing
(By Our High Court Correspondent)
The hearing of the habeas corpus petition filed by a Rahman challenging the validity of the latter’s detention started on Tuesday in the Dacca High Court.
A Special Bench of the Court consisting of Mr. Justice Baquer, Mr. Justice Abdulla and Mr. Justice Abdul Hakim heard Mr. A. Salam Khan on Tuesday who mostly read the documents and connected Judgments on behalf of the petitioner. This is the re-hearing of the habeas corpus petition filed by Rezaul Mallik after the Supreme Court has remanded the case.
A Full bench of five judges of the High Court earlier heard the petition and by a majority held the detention of the Sheikh 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 verity the justification of a detention.
The relevant portion of the Supreme Court’s order which is the foundation of the present re-hearing of the case and which would govern the future habeas corpus (detention under DPR) cases 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 of immediately affect the society or the defence of the state or not.
“The learned judge 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.”
The case started when Rezaul Malik a friend of Sheikh Mujibur Rahman, petitioned in the Dacca High Court to bring the latter to the Court and set him at liberty. According to the petitioner the detention of the Sheikh was void as there were no material whatsoever before the detaining authority against the Sheikh. He said that under the circumstances the detaining authority (the Deputy Commissioner of Dacca who passed the impugned order of detention of the Sheikh) was not validly satisfied as to the alleged prejudicial activities of the Sheikh.
He said that Sheikh Mujibur Rahman was a constitutional agitator and contributed largely towards the achievement of Pakistan.
The petitioner said that the detenu was now the President of East Pakistan Awami League. According to him the Awami League was fighting to ventilate the grievances of the people constitutionally. He said that the constitution Provided for the removal of disparity so that Pakistan could be founded on a strong footing. The Sheikh has recently launched a constitutional ‘sixpoint movement to ventilate the grievances of the people and to remove disparity between the two wings. While propagating the “six- point the Sheikh had to criticise some actions of the Government which was “Convention Muslim League Government.” The President of the Convention Muslim League Field Marshal Md. Ayub Khan who is also the head of the state openly declared, “movements must be crushed,” the petitioner said in paragraph 12 of his petition.
The petitioner said that his friend was arrested on May 8, 1966 from his Dhanmandi residence under the provisions of the Defence of Pakistan Rules, on the charge of prejudicial activities. The detention was a clear act of grudge and vengeance against the Sheikh, the petitioner added. He said that specific cases had already been started against the Sheikh on various allegations. Therefore detention of the Sheikh on any other allegations was not at all called for he added. He said that the detention order was vague and indefinite and did not disclose as to what were the Sheikh’s prejudicial activities.
The petitioner also said that the Defence of Pakistan Rules was ultra vires. He also said that detention under the DPR was bad in the presence of the East Pakistan Public Safety Ordinance which provided for detentions.
Mr. Salam Khan was still arguing when the court rose for the day.
Mr. Khan was assisted by Messrs. Serajul Huq, M. A. Rab and Aminul Huq.
Mr. Asrarul Husain, Advocat General with S. M. Abbas appeared for the State.
সূত্র: সংবাদপত্রে বঙ্গবন্ধু তৃতীয় খণ্ড: ষাটের দশক॥ দ্বিতীয় পর্ব