Of Generals and Judges

Incidental Blogger

Incidental Blogger

‘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.


225 Responses to “Of Generals and Judges”

  1. Mizan

    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!

  2. Someone

    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.

  3. Boka Manush

    CJ Ruhul Amin has always been a slave of the FUA-MUA government. If this is not Pakistan, what is?

  4. Anon

    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.

  5. Mizan

    @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.

  6. Ashfaque

    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.

  7. Boka Manush

    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.

  8. Imran

    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.

  9. Tokai

    Moeen has lost control of DGFI. These guys are running amock and very desperate right now.

  10. Tokai

    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.

  11. boot polish

    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..

  12. Shams Rahman

    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.

  13. Boka Manush

    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.

  14. ADVOCATE SALAHUDDIN AHMED

    HOW CAN WE GET REMADIES FROM THE CORRUPTION OF CHIEF JUDICIAL MAGISTRATE NAMED FATAMA NAJIB AND ADDITIONAL CHIEF JUDICIAL MAGISTRATE NAMED MD.RAFIQUL ISLAM OF THE COMILLA JUDICIAL MAGISTRATE COURT???
    I AM AN ADVOCATE OF COMILLA JUDGE COURT.ONCE UPON A DAY ONE RELATIVE CAME TO ME FOR A BAIL MATTER. HE GAVE ME SOME DOCUMEN ON FEVIOUR OF THE ACCUSED.AT THE TIME OF BAIL HEARING I SUBMITTED THOSE DOCUMENTS IN THE COURT ON BEHALF OF ACCUSED. AFTER A FEW DAYS I BECAME TO KNOW THAT ONE OF THOSE DOCUMENTS WAS FALSE. AS A RESULT THE COURT SHOW CAUSE ME ABOUT THE FALSE DOCUMENT. ON THE FIXED DATE I REPLY THE SHOW CAUSE NOTICE. BUT THE JUDGE DID NOT TAKE ANY ACTION THOSE; WHO WERE EXECUTED THIS FALSE DOCUMENT.THOUGH ANY ADVOCATE HAS NO POWER TO INVESTIGATE ANY CLAIENT DOCUMENTS FOR DISCOVERING THE GENIUNITY.IT IS THE EXCLUSIVE JURISDICTION OF THE COURT.BUT HE FILED A CASE AGAINST ME IN THE COGNIZANCE COURT. AS A RESULT I VICTIMIZED & BECAME A ACCUSED OF A CR CASE NO 692/08, SECTION-466/471 OF THE BANGLADESH PENAL CODE. THE CASE WAS DISMISED ON 30/12/2008 U/S 247 Cr.P.C BY THE CHIEF JUDICIAL MAGISTRATE. THAN ON 05/03/2009 I WENT TO BAIL HEARING OF MY CLAIENT CASE.THAT TIME THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE OFFERED BY HIS CLARK TO GIVE HIM 25,000/- TAKA AS BRIBE MONEY.BUT I DENIED TO GIVE.AS A RESULT HE INFLUENCED OVER THE CHIEF JUDICIAL MAGISTRATE NAMED FATEMA NAJIB OF COMILLA TO REVIVE THE CR CASE WHICH DISMISSED IN EARLIER ON 30/12/2008. THOUGH THE CASE WHICH DISMISSED U/S 247 Cr.P.C CAN NOT REVIVE WITH OUT ANY ORDER OF HIGH COURT BY APPEAL OR REVISION IN 60 DAYS FROM THE DATE OF DISMISS. BUT AFTER 65 DAYS THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE BEGAN TO INFLUENCED OVER THE CHIEF JUDICIAL MAGISTRATE TO REVIVE THE CASE. BUT IN THE SECTION 369 OF Cr.P.C DIRECT AS NO JUDGE CAN CHANGE OR ALTER OR CANCEL ANY JUDGEMENT OR ORDER WHICH ALREADY PRONOUNCED & SINGED BY HIM/HER. MORE OVER THE COMPLINANT DID NOT AGGRIVE BY THE DIMISS ORDER OF 30/12/2008. THAN THE CHIEF JUDICIAL MAGISTRATE REVIVED THE CASE ON 03/05/2009 & ISSUED WARRENT AGAINST ME. FOR THAT I SUBMITTED APPLICATION TO THE COURT FOR CERTIFIED COPY OF THE CASE.BUT SHE REJECT MY APPLICATION.
    THEY ILLEGALY BEING AGGRIVED BY THE REFUSE OF GIVING BRIBE MONEY 25,000/- TAKA. THE CORRUPTION POINT IS AS FOLLOW:-(1) THE SECTION OF REVIVAL OF CASE REPELED IN 1992. NOW NO COURT CAN REVIVE ANY CASE WHICH WAS DISMISSED & ACQUITTAL THE ACCUSED WITH OUT FILEING WITH IN 60 DAYS APPEAL OR REVISION U/S-417/439 OF THE Cr.P.C TO THE SESSION JUDGE COURT OR HIGH COURT BY THE COMPLENANT .
    (2)IF ANY COURT DICLARED OR PASSED ANY JUDGEMENT OR ORDER & SHE/HE SINGED SUCH JUDGEMENT OR ORDER SHE/HE CAN NOT CHANGE OR ALTER HER/HIS JUDGEMENT OR ORDER ACCEPT THE CLARICAL ERROR.
    (3) THE COMPLINANT DID NOT AGGRIVED & DID NOT FILE ANY APPEAL OR REVISION IN THE UPPER COURT IN 60 DAYS EVEN NOT AT ALL , THE CHIEF JUDICIAL MAGISTRATE BEING INFLUENCED BY HER COLIK REVIVE THE CASE BY VIOLATING THE LAW OF SECTION 417/439/369 OF THE Cr.P.C.
    (4) WITHOUT ISSUEING ANY SUMMON OR NOTICE TO ME ABOUT THE REVIVAL OF THE CR 692/08 CASE WHICH WAS REJECTED ON 30/12/2008; DIRECTLY ISSUE WARRENT AGAINST ME.
    FOR THAT I VICTIMIZED BY THEM. I CAN NOT CONTINUE MY PROFESSIONAL DUTY. NOW I AM PASSING MY EVERY MOMENT WITH A SERIOUS MENTAL DEPRESION. AS A RESULT I & MY ALL OTHER FAMILLY MEMBERS ARE GOING TO DIE ON STARVATION. I THERE FORE PRAY ANF HOPE THAT YOUR HONOR WOULD BE KIND TO RESTITUTE MY FUNDAMENTAL & HUMAN RIGHTS.

  15. Adv Salahuddin Ahmed

    A story of Judicial Corruption of The court of Bangladesh at Comilla Judicial Magistrate Court:- In this story I described the corruption activities of two Judicial Magistrates corruptions. One of them is The Chief Judicial Magistrate Named FATAMA NAJIB & the another is The Additional Chief Judicial Magistrate Named Md. Rafiqul Islam. I discover their corruption from the 2 cases which were in their court. These 2 cases are GR-792-07 & another is CR-Case-No-692-08. In the above named cases the corruption activities of them is as following:-
    The corruption & injustice of the GR-Case-792-07:- The informant of this case is Advocate Salahuddin Ahmed of Comilla District Bar Association & the Accused Advocate Kamrul Hayat Khan former Secretary of Comilla Bar Association. In the period of police investigation of this case the accused played a role of violence with the HARTAL and ultimatum of stop the court duty. Hence the police submitted the police report as Final Report False according to the previous written ultimatum. Than I filed an NARAJI Application against the police report. But the chief judicial magistrate named FATAMA NAJIB involved with the accused party for deprives me from the legal justice. As a result she did not pass any order of hearing date of the case against the Naraji application. She passed an order on 27-01-2008 as “The case will hearing on next”. But with out passing any order of next date she rejected the Naraji application by writing a false statement on 28-01-08. After I became to know about this and I presented before the chief judicial magistrate and request to her for restrain the earlier order. She replies to me that she can’t do that because the section 369 of the code of criminal procedure 1898 is Barring to do such. More over she told me to go session judge court for revision. Than I collected a set of photo copy of all order sheet of the GR-792-07 cases.

    But after a few months I applied for certify copy the order sheet on 30-07-2009. When she became to know about my application she tempered the previous order sheet of 27-01-08 and overwrites on the word “the case” and substitutes the word “tomorrow.”

    More over she= never published any fixed date for hearing the case.

    On the other hand she altar her pervious attitudes and enjoyed ultra virus power in the CR-Case-No-692-08. In this case we can see over the order sheet that the case was closed on 30-12-2008 under section 247 of the code of criminal procedure 1898. After 65 day of closing the case the additional chief judicial magistrate of comilla named Md. Rafiqul Islam proposed for bribe money to give bail an accused by a bench Clark named HARADAN KARMAKAR. But I denied giving any bribe money for getting bail of an accused from his court. As a Result he communicated with the chief judicial magistrate in view of take revenge of denying his proposal of bribe money. Hence the CR-692/08 case revived with illegally, intentionally by their ultra virus power which was dismissed on 30/12/2008. Though they have no power or jurisdiction to revive any case which dismissed under section 247 of the code of criminal procedure 1898. If any party of such case being aggrieved; he can appeal in the session judge court under section 417 (2) of the code of criminal procedure 1898. If he aggrieves with the aforesaid appeal judgments; he can file revision in the High court 439 of the code of criminal procedure 1898. But if he does not file appeal under section 417(2) of the code of criminal procedure 1898; he will never can get any benefit of the section 439. If the aggrieved party does not file any appeal with in 60 day there is no court can admit any appeal application with out the order of Hon’ble High Court.

    But when I filed petition for true copy of that case she rejected my petition and decided to change the previous all order sheets of the 30/12/2008. When I became to know about her ill-motive I took image of all order sheets of the case by a mobile camera. Than I printed out from the mobile camera of those image of order sheets.

    After that I filed a criminal revision case in the session judge court of comilla as Criminal Revision case No-194/09 on 08/07/09 with those image order sheets of the CR-692/08 cases. On that date the session judge directed to the chief judicial magistrate and passed an order for issue certify copy of all the order sheets of the CR-692/08 case before 29/07/2009. But the chief judicial Magistrate dishonored the session judge’s order which passed on 08/07/2009. But the session judge did not take any action against the chief judicial magistrate for dishonoring the order of upper court.

    IS THE NATURE OF JUDICIAL SECTOR? IF THE JUDGE DOES NOT HONOUR THE LAW HOW DOES THE OTHER PUBLIC CAN HONOUR THE RULE OF LAW? IF YOU WANT TO BE RESPECTED BY OTHER YOU SHOULD RESPECT TO ANOTHER.

    salahuddin_ahmed3@hotmail.com

  16. Advocate Salahuddin Ahmed from Comilla

    I Humbly Request to The Hon’ble Chief Justice of the bangladesh suprime court for help the victimes of the chief judicial magistrate of comilla named Fatama Najib. I protest against her corruption activities. For that she organised a group for harres me. In view of her that decesion she influenced over some Advocate of Comilla Bar for recommended to Bangladesh Bar Council for cancell my Advocateship Sanad.I have been seeking remedy against her illegal activities for last 2 years, But No body took any protective action to stop her criminality.

Comments are closed.