Rule of law caught in spat

The rule of law seems to have been caught in the ongoing war of words between Sheikh Fazle Noor Taposh, the incumbent mayor of Dhaka South City Corporation, and his predecessor Sayeed Khokon.

Filing of two defamation cases on Monday against Khokon by "well-wishers" of Taposh and acceptance by a Dhaka magistrate court are in contrast with the laws.

Both litigants and the magistrate overlooked Section 198 of the Code of Criminal Procedure that bars them from filing such cases and taking into cognisance the alleged offence: defaming Taposh by Khokon.

This provision allows only persons aggrieved by alleged defamatory remarks to file a case. Taposh himself could file the case if he felt aggrieved by the remarks made by Khokon about him.

So, from the legal point of view, there is no scope of filing a defamation case by a third party. In the two defamation cases, the "well-wishers" are the third party here. And they have no rights to feel defamed and seek remedy from the court.

Similarly, the magistrate was not authorised by the law to record the cases. He did not even examine the narrow exception criteria that could have allowed a third party, here the well-wishers, to file such a case.

The proviso clearly says: "Where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf."

None of the above criteria endorsed the actions of the "well-wishers" and the magistrate.

Another interesting thing here is one of the plaintiffs is a lawyer who along with others filed the case several hours after Taposh's warning of taking legal action against Khokon for his "defamatory" remarks about him.

A correspondent of The Business Standard contacted the lawyer after they had filed the cases, seeking to know whether he could file the defamation cases despite the legal bar. He said he was unaware of Section 198 of the CrPC.

This is not the first instance of such cases. Over the years such deviation of the legal provision has happened in regard to filing of defamation cases against opposition leaders by those who are linked to the party in power and acceptance of the cases by courts.

Download/Print

But the cases against Khokon appear to be unique. The litigants and accused belong to the ruling party camp. Khokon is a member of the ruling party's central working committee. Taposh had been a ruling party MP just before he was elected the mayor. One of the litigants is the law secretary of the Bangladesh Muktijoddha Prajanma League's central committee and a member of the Supreme Court unit of Bangabandhu Foundation.

This incident has an immensely significant meaning: anyone may fall victim regardless of their political affiliation if the rule of law remains weak.

Every such incident sets a bad precedent and paves the way for recurrence of new ones. All these together make the rule of law weaker, ultimately leaving a long lasting impact on the governance system. And less adherence to the principles of the rule of law is one of the reasons behind Bangladesh's poor performance every year on the global rule of law index.