Case No: Criminal Miscellaneous Case (Suo Motu Rule) No. 2737 of 2001
Judge: Md. Hamidul Haque,
Court: High Court Division,,
Advocate: Mr. Nizamul Hoque Nizam,,
Citation: 53 DLR (2001) 414
Case Year: 2001
Appellant: Faustina Pereira
Respondent: The State
Subject: Constitutional Law,
Delivery Date: 2001-05-22
High Court Division
(Criminal Revisional Jurisdiction)
Md. Hamidul Haque, J.
Nazmun Ara Sultana, J.
May 22, 2001
Constitution of Bangladesh, 1972
Jail Code (IX of 1894)
Rules 78, 570 to 578
Keeping of any prisoner in jail after he served out the sentence amounts to violation of Human Rights and Fundamental Rights guaranteed by the Constitution. ……… (7)
Nizamul Haque with Faustina Pereira Advocates- for the Petitioner.
M Faruque, Assistant Attorney General with Md. Fazlul Haque Choudhury, Assistant Attorney General -for the State.
Criminal Miscellaneous Case (Suo Motu Rule) No. 2737 of 2001.
Md. Hamidul Haque J.
1. This suo-motu Rule was issued on the basis of a letter addressed to Hon’ble Chief Justice by Dr. Faustina Pereira, Advocate of Supreme Court and also Coordinator of Advocacy Ain o Salish Kendra. The Hon’ble Chief Justice directed the Registrar to place the matter before this bench for taking appropriate action.
2. In the above letter the attention of Hon’ble Chief Justice was drawn to the fact that 29 prisoners of different countries were languishing in the jail for about 5(five) years even after serving out their sentence. The Rule as issued upon the relevant Ministry of the Government and we have heard the learned Deputy Attorney General and the learned Advocate on behalf of the petitioner Md. Nizamul Haque and also Dr. Faustina Pereira. Today we also heard Mr. Armand Roussclot, Regional Representative of International Organisation for Migration who also appeared before us and informed us about the activities of the Organisation after this Rule was issued.
3. We have received the Memo bearing No. 4288 dated 7-5-2001 from Md. Jahangir, Senior Jail Superintendent, Central Jail, Dhaka. This memo contains the report as to the steps taken by the jail authority for facilitating release of the prisoners in question. It appears that as regards the prisoners of India and Pakistan the authority contacted High Commissions of those two countries. It further appears from the memo that except the prisoner at Sl. No. 14, Miss Dibba Bharati, the Indian High Commission is verifying the fact whether the 13(thirteen) Indian Prisoners are actually citizens of India. It further appears that the Ministry of Home Affairs, also made contact with the Tanzanian Embassy regarding repatriation of 2(two) Tanzanian Prisoners. As regards 10(ten) prisoners of Myanmar, Government of Bangladesh has not yet taken any step and, as such, no contact was made with the Embassy of Myanmar regarding release of those 10 citizens of that country. Lastly, from the report we have found that one of the prisoners of Myanmar at Sl. No. 7, Md. Safi, died at Bangbandhu Sheikh Mujibur Rahman Medical University Hospital on 5-5-2001.
4. On perusal of list of the foreign prisoners who are now at Dhaka Central Jail we find that some of the prisoners served out their sentence in the middle of 1995. Some in 1996 and others in 1999. So, we find that some of the prisoners are in jail for a long time even after serving out their sentence. This pitiable fact was not brought to the notice of this court earlier by any authority and as such, no action could be taken. Even it was not known to this court that so many prisoners were languishing in jail after serving out their sentences Dr. Faustina Pereira, Coordinator, Advocacy Unit Ain o Salish Kendra deserves thanks for bringing this fact to the notice of the Hon’ble Chief Justice.
5. At the time of hearing however, we have learnt from the submission of learned Deputy Attorney General Mr. M Faruque that the Government of Bangladesh is also anxious to release these prisoners but due to some formalities the prisoners could not be released. As we have noticed earlier that some of the prisoners already are in jail for more than 6 years after serving out the sentences, it should have been proper for the jail authority and also Ministry of Home Affairs to take appropriate steps for their release at the earliest possible time. But it is unfortunate that no such steps were taken. We are afraid if timely steps are not taken in future more prisoners will meet the same fate. It is also learnt from the letter of the Inspector General of Prisons, Bangladesh dated 12-4-2001 that about 822 more foreign prisoners are waiting for release after serving out their sentence. The learned Advocate for the Ain o Salish Kendra, Md. Nizamul Haque, in this connection has invited our attention to rule 78 and rule 578 of the Jail Code and has submitted that keeping any prisoner in jail after serving out of the sentence is gross violation of Human Rights and Fundamental Rights as guaranteed under our Constitution. From Rule 78 we find that it is the first duty of the Superintendent of Jails to release time expired prisoners after observing all the rules regarding return of their private property grant of subsistence allowance for the return to their homes etc.
6. Rules 570 to 578 contain the detailed procedure for release of the prisoners and also contain formalities which are to be observed. Mr. M Faruque, learned Deputy Attorney General has submitted that as regards the prisoners if they are released immediately after serving out of sentence according to the above rules, in that case such prisoners may face more difficulties and may be arrested again as they would not be in a position to show any valid papers regarding their entry in this country.
7. We have considered the question raised above. To our knowledge there is no rule either in the Jail Code or any other law as to the release of foreign prisoners. The procedure, so long followed, is to contact with the respective embassies of such prisoners and to make arrangement for their repatriation through their embassies and we have learnt that the Government have already taken steps in this regard and contacted with the High Commission of India and Pakistan. But by this time more than five years has past. We agree with the submission of the learned Advocate for the Ain o Salish Kendra that keeping in jail any prisoner after serving out the sentences amounts to violation of the Human Rights and Fundamental Rights as guaranteed by the Constitution of the country. So, we are of the view that the Government should take steps for release of such prisoners at least 3 months prior to the date of their release so that such prisoners do not languish in jail for indefinite period for no fault of their own.
8. In the memo dated 7-5-2001 of the Senior Jail Superintendent, it is mentioned that Ministry of Foreign Affairs has not yet taken any decision regarding the return of Myanmar prisoners. We have no materials before us as to why the Ministry of Foreign Affairs is not taking such decision by this time though four of the prisoners served out the sentences in middle of 1995 and two in 1996 and three in 1998. It is unfortunate that the Jail Authority, Ministry of Home Affairs and Ministry of Foreign Affairs remained silent regarding all those ten prisoners for such a long time of 5/6 years. On receipt of the copy of the judgment and order the Ministry of Home Affairs and Ministry of Foreign Affairs shall take immediate steps in this regard.
9. We have learned from the learned Deputy Attorney General and also from the above memo that as regards two prisoners of Tanzania, no steps could be taken as that country has no Embassy in Bangladesh. We have confirmed that Tanzania has Embassy at New Delhi. We fail to understand why our Ministry of Home and Ministry of Foreign Affairs did not contact with the Tanzania Embassy at New Delhi regarding those two prisoners of Tanzania. The explanation that Tanzania has no Embassy in Bangladesh cannot be a ground for keeping those two prisoners for indefinite period in jail.
10. From our above discussion it is clear to us that so long the steps taken by the Government of Bangladesh to solve the problem of repatriation of foreign prisoners after expiry of their terms of their sentence of imprisonment were not at all sufficient, as keeping in jail custody any prisoner after expiry of his term of sentence is violation of Human Rights and Fundamental Rights. It was they duty of the Government to take steps in time for their release. It is natural that some time would be needed to complete formalities of their release because Embassies of the different countries require to be contacted but even if after a reasonable time such prisoners cannot be released with the help and assistance of the respective Embassy. Government should release such prisoners and under no circumstances the prisoners should be kept in jail. We have tried to confirm whether there is any centre for giving shelter to such prisoners but neither the learned Deputy Attorney General nor the learned Advocate for the other side could provide us any such information. Further, we also think that it is the duty of the Government to ensure their safely and security after their release and for the purpose, the Government may consider making contact with Human Rights bodies or any International body such as International Red Cross Society or United Nations Commission for Refugee Rehabilitation, the International Organisation for Migration, Government may also consider setting up of separate cell in the Ministry of Foreign Affairs with a representative of Ministry of Home Affairs and the office of the Inspector General of Prisons to facilitate the timely release of the foreign prisoners and their repatriation.
11. In the result, the Rule is made absolute. The Superintendent of Central Jail Dhaka is directed to release 28 prisoners mentioned in the Rule (except the prisoner Md. Safi who died on 5-5-2001) after receipt of the reply from the respective Embassies of the countries of those prisoners. If the Embassies fail to make any arrangement for the repatriation of the prisoners to their countries within one month, the Ministry of Home Affairs shall take necessary steps within one month next for the shelter of those prisoners on their release from the prison in the light of observations made in the judgment till their repatriation is finally arranged. The Superintendent of Central Jail Dhaka shall report about the release of the above prisoners within 3(three) months.
The Inspector General of Prisons is directed furnish full particulars of the remaining 822 fore prisoners and also to report within seven days as what steps have been taken by this time for the release.