Vol. 5 Num 789 Tue. August 15, 2006  

The Bangabandhu Murder Case
Legal limits of judges' embarrassment

AN independent and impartial judiciary is a cornerstone of any dignified civil society. Such a judiciary is neither an end in itself, nor has any intrinsic value. Rather it is a means to administer justice according to the rule of law. Judges are given considerable judicial power, the exercise of which affects the present and future lives of those appearing before the judiciary. This power is not unfettered but entails precise obligations. Judges need to exercise their judicial power judiciously and fairly for public good within the bounds of law.

No society wishes such power to be exercised with the questionable integrity and honesty of judges, who may not be able to administer justice without fear or favour, affection, or ill-will. This expectation explains why justice is not only to be done, but also manifestly seen to be done. Judges have a definite duty to live up to this community expectation to retain public confidence in the trustworthiness of the justice system.

Public confidence in the judiciary, however desirable, warrants certain minimum standards of judicial conduct to promote it. Judges must observe these standards both in and out of courts. They need to treat the judiciary as a symbol of public trust by being accountable to the law in courts and fostering a public perception of dispensing the natural course of justice. There is a growing public interest in these judicial standards and public scrutiny of judicial conducts, the consequence of which is the increased accountability for judges. This judicial accountability is thought to be a self-evident good and a means of attaining the end of public confidence in the judiciary.

The constitutionalism in Bangladesh is premised on an independent and competent judiciary, separate from the two other organs (executive and legislature) of the government based on the separation of powers and constitutional checks and balances. The role of the judiciary is central to justice, the rule of law, and good governance that Bangladesh is striving to achieve ever since its independence in 1971.

The judiciary of Bangladesh has recently been at the centre of controversies surrounding its independence, impartiality, transparency, and accountability. These controversies have steadily been eroding public confidence in the judiciary and its judges in administering justice. On the face of such a state of affairs, a former Chief Justice (Justice AFK Huq) has observed that the judiciary is losing the confidence of common people that it once enjoyed.

One of such controversies is the Bangabandhu Murder Case, which has become the victim of judicial parochialism and government inaction. A number of judges of the Supreme Court have expressed their inability to hear the case on the ground of their feeling of embarrassment. The second and final leave to appeal has not been heard in the Appellate Division since August 2001 for want of judges.

The expression of embarrassment by a judge to preclude him/herself from a trial in which his/her impartiality may be open to question is practiced in the best interest of justice and public confidence in the judiciary. Grounds such as the involvement of personal conflict of interests, common business interests, and relationship with the disputant parties may deter a judge from applying his/her judicial mind. This feeling of embarrassment is somewhat a nebulous and mental state of affair that is exceedingly difficult to regulate legally. As such, it is largely left to the discretion of the concerned judge who has such ground in a given case may preclude him/herself from hearing the case. The end in view is to display the personal fair-mindedness and integrity of judges in upholding the natural course of justice. Each and every feeling of embarrassment does not necessarily call for exclusion. There must be a causal link between the feeling of embarrassment and the application of judicial mind in a specific trial. Embarrassment that does not deject judicial mind should not be a cause of concern.

The disclosure of reasons for embarrassment can be very helpful for a competent authority, such as the chief justice or a body of senior judges, to determine whether a judge is actually and acutely embarrassed or apprehensive of distant and potential embarrassment as a consequence of his/her judgement. If the reason for embarrassment is not well founded, such embarrassment at subjective will of judges is likely to impair the performance of sacred judicial duty to provide fair and expeditious justice. Excessive preoccupation with judicial ethical obligation in the name of strict neutrality may frustrate the purpose of a judiciary in administering justice for all. Whilst judges are entitled to feel embarrassed in a given case, a mere expression of embarrassment is not enough. Their feeling of embarrassment must be justified objectively and applied judiciously only to facilitate the course of justice.

There appears to be no specific and explicit law in Bangladesh requiring judges to disclose their reasons for embarrassment. However, the requirement for the disclosure of reasons and its associated accountability may be deduced from the Constitution. Article 27 postulates that: "All citizens are equal before law and are entitled to equal protection of law." The oath of the judges under Article 148 of the Constitution requires them to swear in that they will "preserve, protect and defend the Constitution and the laws of Bangladesh" and "do the right to all manner of people according to law, without fear or favour, affection or ill-will." The Supreme Judicial Council, in exercise of its power under Article 96(4) of the Constitution, adopted a Code of Conduct for the Supreme Court judges, which is effective from May 7, 2000. Rule 12 of the Code provides that "in the event of any embarrassment to hear a case by a Judge, he shall inform the Chief Justice of such embarrassment so that the Chief Justice can take appropriate steps."

On the face of these provisions of the Constitution and the Code, one may argue with some measure of strength that the judges are not totally immune from disclosing the reasons of their embarrassment in a given trial. They cannot exonerate themselves from their official obligations in a manner that undermines the Constitution, denies equality and equal legal protection to all, deters the natural course of justice, and brings extra-judicial (viz fear, favour, affection, or ill-motive) consideration. It is in the best interest of judges that they must disclose their reasons of embarrassment so that the public and the profession know that their feeling of embarrassment is not arbitrary, but to promote the natural course of justice. Such a disclosure in turn maximises the stature of judges and reaffirms public confidence in the judiciary. The non-disclosure of reasons is fraught with the potential of generating public suspicion as to the bona fide of judges' embarrassment. It is also incompatible with the Constitution, the judicial Code of Conduct, and the spirit of judicial accountability.

The trial of the gruesome murder of Bangabandhu and his family members is a necessity of State, as all criminal offences in Bangladesh are statutorily recognised as offences against the State, not against the individual concerned. It is the sole responsibility of the government to facilitate all necessary logistics, including the appointment of adequate number of judges, to conclude all criminal proceedings. Any failure is squarely attributable to none else but the incumbent government. The government can overcome the current shortage of judges in the Bangabandhu murder trial through the existing constitutional arrangement.

The Constitution sets no limit on the number of judges to constitute the two Divisions of the Supreme Court. The President is entitled to appoint any number of judge as he deems necessary in each Division under Article 94(2) of the Constitution. Therefore the government could have appointed at least one more judge to the Appellate Division to resolve the impasse. Also Article 98 of the Constitution authorises the President to appoint ad hoc judge from the High Court Division to sit in the Appellate Division on a case-by-case basis.

There are instances of such appointments. Two ad hoc judges were appointed from the High Court Division to the Appellate Division for the speedy disposal of Bengal Water Wage Ltd v Rahimuddin Ahmed in 1981. Pursuant to this arrangement, the Chief Justice Mahmudul Amin Chowdhury requested the President in October 2001 to appoint a judge on ad hoc basis from the High Court Division, which went unheeded. The frustration of the Chief Justice with the government inaction in the Bangabandhu Murder Case was apparent when he remarked: "If you don't want to continue with the case, then do let us know, please. I don't get it why every government tries to pull the trigger resting the gun on the shoulder of the court."

The appeal petition has been in limbo in the Appellate Division since August 2001 for want of initially just a single judge and now 2 judges, regular or ad hoc, the appointment of whom involves nothing but the good will of the government. The hearing can resume even today if the government fulfills its duty to address the shortage of judges at the highest court of the country. The Law Minister has made it repeatedly clear that no new or ad hoc judge would be appointed for the Bangabandhu Murder Case. Seemingly the government has taken a partisan and political approach to this trial.

It is the constitutional and executive obligation of the government to appoint such number of judges that is necessary to ensure speedy and public trial by a competent court (Arts. 35 and 95 of the Constitution). It is also the constitutional responsibility of the Supreme Court to render justice by bringing the self-confessed murderers within the reach of the law expeditiously. But the Supreme Court has so far failed to finalize the appeal process in the Bangabandhu Murder Case, which the lower court had courageously dealt with. The embarrassed judges are obliged under their assumed oath to perform the judicial functions assigned to them without any fear or favour. They are entitled to maintain their political non-alignment and not to engage in activities that compromise their political indifference (rule 13 of the judicial Code of Conduct). Former Chief Justice Mostafa Kamal told the BBC Radio on 27 March 2002 that the case has repeatedly been stalled by judges' embarrassment. But "this is an important case which has political implications, and no judge wants to get involved in politics but ultimately the judges have to be bold enough to deal with the issue." The embarrassed judges failed to live up to the steadfastness of their judicious minds. Thus both the judiciary and the executive are collectively responsible for endlessly deferring the Bangabandhu Murder Case that has hamstrung the natural course of justice for the heinous crime of murder of an incumbent President.

The case is of paramount significance for ending the cycle of political killings with impunity and the legacy of blood and bullets as a means of assuming governmental power. This was a situation where there was a significant public demand for the professional handling of the case. The disclosure of reasons for embarrassment would have gone a long way in establishing transparency and dispelling doubts as to the honesty of the embarrassed judges in exercising their discretion in the interest of justice, not under the pressure or influence of the government. The consistent pattern of embarrassment of successive judges in a particular case is widely seen as a deliberate act on their part to avoid any political controversy and/or executive retaliation at the aftermath of the appeal decision. This political consideration under the cloak of embarrassment has created an uncertain situation, affording the government an opportunity to procrastinate, if not subvert, the normal process of justice indefinitely for political expediency. In so doing, the embarrassed judges have failed to display their professionalism and constitutional role by rising above their desire to exercise discretion secretly on petty technical grounds.

The embarrassment of judges in the Bangabandhu murder trial has solved nothing but caused a crisis in the due process of law. It has circumvented the constitutional guarantee of the protection of law for the both sides of the case. It has deprived the kith and kin of the victims of their right to receive remedial justice by punishing the murderers. The convict appellants are also entitled to a speedy trial, protection in respect of detention, trial, and punishment (Arts. 33 and 35 of the Constitution). The acquittal of some or all of them, as happened to 3 co-accused, through the final appeal verdict may not be ruled out altogether. Keeping them in jail-cells indefinitely with uncertainty and humiliation is a gross injustice to them in violation of their basic human rights under the Constitution.

Good governance calls for a balanced judiciary, which is both independent and accountable in exercising its judicial powers. The public appearance of judicial independence, impartiality, and transparency enhances public confidence in the judiciary. Judicial independence is not a privilege for judges, but "a safeguard of the freedom and rights of the citizen under the rule of law" (Guide to Judicial Conduct, The Australian Institute of Judicial Administration and The Council of Chief Justices of Australia, 2002, p 4). In Bangladesh, the successive failures of the Bangabandhu murder trial have become the subject-matter of public debates and media. The informed thinking of the people on the undue politicisation and polarisation of this judicial act has rendered the case a mass-oriented issue with increasing demand for justice. The Supreme Court and its judges are in positions of power to provide justice. In exercising its constitutional power on behalf of the people, the Supreme Court owes its accountability to the people, who are entitled to an institution in which they can be confident. Judges must be able to defend and explain the ways in which they exercise their judicial powers.

The profound inability of the Supreme Court in dispensing the natural course of justice in the Bangabandhu Murder Case has exposed the justice system to questionable public trust, the hallmark of honourable justice system. The immunity of the embarrassed judges and their culture of secrecy come from the sheer lack of judicial accountability. Judges are entitled to feel embarrassed under certain circumstances, but citizens are entitled to receive justice under all circumstances. Can the judges feel embarrassed at the expense of justice? Can a responsible and respectable judiciary allow convicted murderers to remain at large and unpunished for long 30 years? Both the Supreme Court and its embarrassed judges fail to discharge their judicial independence and accountability by both what they have done and what they have failed to do in the Bangabandhu murder trial. The repeated embarrassment of judges of the apex court with impunity in such a high profile murder case has become an embarrassment for the entire judiciary and albeit the government.

The author is a Professor of Law at Macquarie University, Sydney, Australia.