Posted on 17 March 2008 by Incidental Blogger
Of Generals and Judges
‘The High Court giveth and the Appellate Division taketh away.’
This week, we observed how another decision of the High Court got over turned by the Appellate Division. We hear, a number of “rogue” benches in the High Court Division of the Supreme Court have become a constant source of embarrassment for the present Caretaker Government. In several recent high profile cases we have noted this cat and mouse game of control versus independence of the higher judiciary. This is how, critics say, the highest court of the country consistently upheld the Caretaker Government’s wishes in the end, in case after case. They quip - ‘the High Court (serving the Law) giveth and the Appellate Division (serving the Caretaker) taketh away.’ The interesting factor common to all these over turned decisions is that in each of them, “the Government always wins in the end.” Statistically, that is very odd.
A few more things happened in the last two-three weeks and it is necessary to keep a closer look at how the events unfold:
One
We have read in the newspaper that recently a number of High Court Judges received invitations for Tea at Bangabhaban, which we hear (also according to newspaper reports), was outside the standard protocol. Since this government came to power, a number of such tea parties have been hosted inviting all sorts of luminaries in Bangladesh’s political circles. These parties have already gained reputation as meetings for special advice (read: expert advice from fellow conspirators), appointments in important posts (read: the carrot approach), removal from important posts (read: the sword or khorog approach), pep talks, reprimands and rank pulling (read: the stick approach). The judges in question, however, en masse rejected the invitation (see Daily Inquilab, 5 March 2008). In the grapevines, there are whispers that the Caretaker Government is consulting two very senior lawyers in the country to explore possibilities of initiating Supreme Judicial Council proceedings (ie, procedure required to remove High Court judges) against these ‘rogue’ judges. What purpose such action(s) could possibly serve? Quite a few in fact, for example: purging the higher judiciary of the last of the independent judges whose guts have become too threatening for the government to tolerate; stripping this institution of the last vestiges of its independence and integrity; reminding who is in control; showing others the fate of the non-conformists; making the point that law does not matter, only power does. Or it may just be the case that government is trying to reform the upper judiciary, in a strictly bona fide manner. That is something time would tell.
[Update: Read latest news - Supreme Court judge Shah Abu Nayeem Mominur Rahman, who handed down verdicts in a series of high-profile cases, has been stripped of his writ powers]
Two
Prothom Alo (on 12th March) reported that President Iajuddin Ahmed may order the Supreme Judicial Council to investigate two High Court judges. Of course, in order to do that he will first need to form the Council under Art 96(3) of the Constitution. We still do not know who these judges are. The report quoting “responsbile sources inside the government” states that such initiatives will form part of the government’s “cleansing operation of the judiciary” (i.e., bichar bibhager shuddhi obhijan). Prothom Alo’s “sources” have disclosed that a number of High Court judges have already been asked to step down voluntarily, hence the invitation for tea. This is a matter of great concern. I believe, no one in the right mind would claim that our upper judiciary is ‘clean,’ or that there is no need for overhaul or reform. Considering all the controversial appointments in the benches over the last few years (which even include a High Court judge with forged LL.B. certificate), any responsible citizen would welcome reform in the judiciary expecting some form of “cleansing” initiatives. But the questions of the day are—does an unelected quasi-Military Caretaker Government has the authority or legitimacy to initiate such reforms? How bona fide are these initiatives? Why should we not see these as Musharraf-type encroachments in our highest juicial institution masqueraded as “cleansing moves”?
Would anyone in the government address these concerns and assure us please?
Three
Recently, the Chief Adviser announced in one of his media appearances that a new law on Contempt of Court is underway which is aimed at preventing criticisms of judges’ decisions including matters that are sub-judice. It is too early to comment but we can safely guess what this new law is going to be about. Rumour says, severe punishments are going to be introduced for criticising operations or decisions of the courts. Both long-term imprisonment and huge amount of fine are on the table as proposals.
We do not know whether or not this law would succeed in effectively curbing criticisms of the government or its justice system. But it will definitely equip the government with one more draconian instrument to restrict free speech, open discussions and critical debates. With a law like this in the hands of our police or DGFI, who knows what evils would befall us. Also in future, such laws will come handy to threaten and silence, with full legal sanction, critics like Dr Payam Akhavan or William Sloan. This would be heavy handedness at its legal crudest.
[Read the Editorial (6 March) and Barrister Amir-ul Islam' article (8 March) on this in Prothom Alo; also read this news article exemplifying how such rules of sub-judice and Contempt of Court were open to abuse by pro-Musharraf administration in Pakistan less than a year ago].
Few Cautionary Tales
We already know what happened with the Supreme Court judges in Pakistan. The story unfolding in Bangladesh feels like a déjà vu. Here are some links on Pakistan’s not too remote past. Let us read them carefully, learn from them and turn our watchful eyes on our own Supreme Court:
1. Read Prof Ali Khan’s (Washburn University School of Law) piece on removal of Pakistani Chief Justice and on General Musharraf’s role in it. The piece also reports how Mr Pirzada’s (a legendary legal figure in Pakistan) intellect was behind it all as Musharraf’s advisor.
2. Read Prof Ali Khan’s second piece on lawyers’-judges’ mutiny in Pakistan against the military establishment.
3. Read Pakistan Chief Justice Iftikhar Mohammad Choudhry’s open statement in self-defence rebutting the libels circulated by Musharraf and his regime.
4. Read two articles (here and here) by Dr Ayesha Siddiqa showing how Bangladesh is not that different from Pakistan and arguing why Bangladesh should learn from Pakistan’s mistakes.
5. On 3rd March, an FIR has been filed against General Musharraf jointly by High Court Bar President (Rawalpindi), District Bar Presdient (Islamabad) and District Bar Presdient (Rawalpindi). The allegations are - wrongful confinement, criminal trespass, criminal intimidation etc - punishable under Pakistan Penal Code 1860 - committed against the Chief Justice Iftikhar Mohammad Chaudhry and eight other Hon’ble Judges and their families. Apart from Musharraf, the FIR also implicates the Minister of Interior, Interior Secretary, Chief Commissioner of Islamad, Inspector General of Islamabad Police, SSP Islamabad, District Commissioner of Islamabad and others. Read the full text of the FIR here. Aitzaz Ahsan, President of Pakistan’s Supreme Court Bar Association, told the reporters that he too will file a criminal case against Musharraf soon. Read the news item here. This is indeed an interesting development and worth learning from. Who knows, in couple of months or years we too may reach the point when we will need FIR samples like this or legal advice on how to file cases against position abusing Army Chiefs and top administrative officials. I am saving a copy of the file on my computer.
Let’s keep an eye.
March 17th, 2008 at 3:17 pm
Ruhul Amin was appointed by this army govt and the Supreme Court has been acting like it is the agent of this FU & MU govt. Whatever comes into the Supreme Court, the govt always wins. What a joke of a legal system it is!
March 17th, 2008 at 8:21 pm
You know, Chief justice today Stripped writ power of High court judge Shah Abu Nayeem Mominur Rahman and Shahidul Islam!
It is their independent judiciary, which they presented to us.
March 17th, 2008 at 8:50 pm
CJ Ruhul Amin has always been a slave of the FUA-MUA government. If this is not Pakistan, what is?
March 18th, 2008 at 3:04 am
I think we are ignoring the fact that the judiciary as an institution was corrupted by the politicization of BNP and Awami League government. Just as they had destroyed every single institution of the country, judiciary was also not spared. There was rampant policization and corruption. If there is an attempt to remove some judges, I think we should salute it. It is a praiseworthy move to clean up the judiciary- which is at the heart of justice for our country.
March 18th, 2008 at 6:45 am
@Anon: How many times a day do you salute Parvez Mosharaf? Putting all the blame to BNP and Awamelig probably is the easiest way to go. You know what? I had a headache last night. So I chopped off my head. Easy solution.. right?
I am ashamed that there are still people out there who support this army govt after all these. What a disgrace for a nation.
March 18th, 2008 at 6:47 am
Anon if this government is doing the right thing, then it has to provide some transparency of its process. So far everything being done has been arbitrary. While I am in the same boat that everyone is politicized, I think this new 3rd status quo (not BNP, not AL but CG) is still considered something that will be dissolved, either because they will hold elections and bugger off or they will refuse and be ousted out. But if these judges are politicized then show us their judicial record and show us a political pattern or alignment based on their past performance and decisions, otherwise this is all a witch hunt.
March 18th, 2008 at 3:09 pm
DGFI has a sword over CJ Ruhul Amin’s head over a corruption charge. So he will dance to their tunes for as long as he needs to.
We need a revolt among the judges. This is going too far.
March 18th, 2008 at 4:32 pm
What the CJ & the Appelate division is doing is nothing but a mockery of the judicial process. This “Ruhul Amin” mockery is becoming increasingly naked over time. The irony is that the same CG that talks about reform in all sectors of society is now using the judiciary itself as their sword of cleansing.
When the High Court approves a writ against a government move, this is what happens. First the Appelate division starts delaying the hearing of the writ. After a couple of delays, it hears the case. The outcome of the hearing, lately, is pep talk– the CJ and his cohorts rejects the writ and rules FOR the government. Statistically it is amazing. This statistic alone questions the impartiality of the CJ. I hope I am wrong but if I am correct, it is a shame for our nation.
We want cleansing but we do not want cleansing one and corrupting the other, solely for the gain of a particular regime.
March 18th, 2008 at 6:02 pm
Moeen has lost control of DGFI. These guys are running amock and very desperate right now.
March 18th, 2008 at 7:10 pm
New Age editorial
Change in jurisdiction of a High Court bench
We are fully aware that the chief justice has the authority to constitute and reconstitute benches of the High Court Division of the Supreme Court, and also change their jurisdiction as and when he deems it fit. Hence, he has acted within his powers when changing the jurisdiction of the bench of Justice Shah Abu Nayeem Mominur Rahman and Justice Shahidul Islam from hearing writ petitions to hearing first civil appeals. We must, however, point out that the change in jurisdiction of a bench that has recently been in the news for several landmark rulings and opinions that include granting bail in cases that have been brought under the Emergency Powers Rules, e.g. to Bangladesh Nationalist Party chairperson Khaleda Zia in the GATCO case, and declaring illegal the Anti-Corruption Commission’s notice asking Awami League president Sheikh Hasina to submit her wealth statement has an ominous ring to it. Notably, the bench was set to hold the final hearing on a writ petition challenging the legality of the Election Commission’s decision to defer national elections beyond 90 days of the dissolution of the previous parliament when its jurisdiction was changed.
We must also point out that, in the past few months, on almost every occasion that a High Court bench granted bail to a suspect in a corruption case, the interim order was overturned by the Appellate Division. Here again, while we acknowledge that the Appellate Division has the power to overturn decisions and verdicts handed down by the High Court Division, there has been suspicion in the public mind as to whether there was any arm-twisting of the Appellate Division by powerful quarters behind the overturning of certain High Court orders, given the political nature of the cases in question. The denial of bail to certain individuals in cases that would be bailable under the ordinary laws of the land, especially after the High Court had deemed it fit to grant bail in those cases, has also contributed to raising eyebrows by many. Such a situation, if continues, may lead to an erosion of the people’s faith in the Supreme Court that symbolises for most people the last bastion of justice.
What has undoubtedly also fuelled speculation regarding the change in jurisdiction of the bench comprising Justices Nayeem and Shahidul is the reported tea party that the president, Iajuddin Ahmed, has recently insisted to host for senior judges, apparently to ask some of them to resign. It appears as though the ones who did not take the president up on his offer have now been gently pushed aside.
We would like to believe that the changing of jurisdiction was a routine activity of the chief justice. However, in case there is some truth to the growing public perception of this change being related in any way to political engineering by the powers that be, we take this opportunity to remind the current administration of the recent controversies with regard to President Pervez Musharraf’s ill-advised interference with the judiciary in Pakistan. Just as Musharraf’s attempt at controlling the higher judiciary did not bear positive results for him, so would it not for our government, if that is indeed its objective.
March 21st, 2008 at 9:15 pm
CJ Ruhul Amin will do what “Sir Dr Hossain” tells him to do. And Dr Hossain will tell him what Cantonment and State Dept wants… SHob i ek shutre gatha… these people are all spineless amlas, coming from historically reactionery semi-feudal class. dont expect them to suddenly disobey their masters in power. Like CJ said, Supreme Court will ensure the country follows a constitutional path, hence he is ensuring it this way. this is the path oporwala has bestowed upon us. My Lord, excuse my french, you have spent too much money to polish Army boots, you could have trained yourself in dhaka street, you did not require all those fancy degrees and black robs..
March 23rd, 2008 at 7:13 am
It seems from most of the respondants’ views that the Judiciary was working BETTER during the period of 1975 to 2006.If that is the case, CJ MUST be blamed for all these nuisance. But, if that’s not the case, I think, - CJ (along with FUA & MUA) deserves some time.
March 24th, 2008 at 7:25 pm
The “Hossains and Anams” of our society have shown their real colors. They are fundamentally against democracy because they can never win when there are votes involved. They always look for opportunities like these when the army or other extra constitutional forces come into play.
These people should go back to what they do best - sucking donor money in the name of “poverty alleviation” or “governance”.
Razakars of the 21st century.