‘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 12^{th 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.