My Lord, we beg to differ
But we share CJ's vision for a better higher judiciary
Chief Justice (CJ) of Bangladesh Mohammad Ruhul Amin said in a speech on Saturday, "The Supreme Court played a role in the past at critical junctures of the nation. It is doing so at the present and will also do so in the future to pull the nation out of mire." We most humbly beg to differ. Yes, there are many grand examples of the Supreme Court serving the nation in times of crises. However, there are just as many examples of when it did not. May we suggest with all due respect your high office demands and deserves, that if the Supreme Court had played such a role in the recent past then we would not be where we are today. Why after 15 years of democracy, however flawed, we needed an emergency to bring about the reforms that the nation needs so badly, which regrettably are becoming increasingly doubtful?
Permit us to recall the writ petition challenging the legality of President Iajuddin Ahmed assuming the post of the chief adviser, clearly violating the constitution that specified the steps necessary to be taken before the president may assume that crucial post. Unquestionably the subject of the writ petition was one of the most important there could be before the higher courts. Not only as an interpretation of the constitution but also as a crucial matter facing the nation at that moment in time, the writ petition merited a hearing. The hearing on the writ petition was proceeding and the honourable judges of the High Court Bench had announced that they would pronounce their ruling the following day. But just when they were about to do so, a note from the then chief justice, hand carried by the attorney general, informed the judges concerned that the whole proceeding had been stayed. It is indeed very rare that a CJ stays a hearing while it is in progress. Rarer still is the staying of the case when the bench was about to pronounce its ruling on it. We all recall the chaos that the stay order led to, including the converging on the chief justice's chamber, vandalism, burning of cars on the court premises, and the arrest warrants against eminent lawyers. All of that left the judiciary tainted and the image of the CJ tarnished.
Tell us My Lord, was that an example of saving the nation from a crisis or throwing it into a deeper one. A proper judgment on that writ petition could have saved our democracy from entering the current emergency phase with its concomitant dangers.
Let us also recall the High Court judgment empowering the Election Commission to make it mandatory for every aspirant member of parliament to make an 8-point disclosure, including his or her sources of funds, past criminal records, etc. Hours before the expiration of the deadline for submission of nominations, moved by ruling party lawyers, the chamber judge of the Supreme Court stayed the High Court order. The chamber judge did so surreptitiously, hidden from the public, and without informing the party on whose petition the High Court had passed the judgment. The High Court order was welcomed by all sections of the people clearly representing a 'public good', and was a reflection of a long standing demand of all civic minded bodies. Such a disclosure would have ensured relatively honest people contesting parliamentary elections. It must have been clear to the learned judge of the Supreme Court that the 'stay order' would greatly impact on the composition of the next parliament. By allowing people of dubious backgrounds to contest and win elections, the chamber judge's action actually destroyed whatever chances we had of eliminating corrupt politicians and of getting a comparatively clean parliament. Would we be wrong to say that by staying the High Court order, the learned judge might have, without intending to do so, actually encouraged corrupt people to become members of the parliament (MPs), and by implication, encouraged corruption?
Then there is the now famous case of appointing 19 judges to the High Court, all at once. Reportedly it is the highest number of one-time appointment ever in the country. Several of the appointees were hardly known in judicial circles. Was there no role that the then chief justice could have played to protect the dignity of the higher judiciary? During their confirmation the chief justice reportedly recommended only 17, and did not recommend the other two. Yet all the 19 were appointed by the government and they were sworn in by the CJ himself. Could not he have taken a stand at that time, making it known that he would refuse to administer the oaths of the two he had not recommended? And if that would not work could he not have resigned setting an example of what would happen if a government tries to strong arm a chief justice. Unfortunately he did not do either of those. In fact a very few judges have ever taken the moral high ground of resigning when under pressure from a government. We recall here how Justice BA Siddiqui by refusing to administer the oath of office of the governor for Gen Tikka Khan in 1971 inspired the whole Bangalee nation of erstwhile Pakistan and took the judiciary's dignity sky high. A similar stand by the CJ concerned with the 19 appointments would definitely have made the government rethink the matter. But as former CJ Mahmudul Amin himself said, "Often we gave judgments thinking of the carrot, rather than the law." He said, "Judges are put under heavy pressure to pronounce desired verdicts. But that must be resisted". Taking the point further the present CJ said, "Those who work for carrots not only harm the nation but also themselves, and they must go." We totally agree.
On the other hand there is also a lot to be desired from the members of the Bar. There is no question that over the years our lawyers, including some senior ones, have become so politicised, and their partisanship took such acute forms that they have forgotten that upholding the law is their supreme task, and not party interests. Lawyers getting involved in politics have been a long tradition in the subcontinent. But that they will do so at the expense of justice is a very recent phenomenon. Undignified behaviours became acceptable if it served partisan ends. This resulted in bitterness among lawyers themselves, and between the Bar in general and the bench, resulting in an overall lowering of the status of the whole judicial system.
Having pointed out where the higher judiciary had let us down in the past, we want to reiterate that such experiences have in no way diminished our faith, hope and expectations from our higher courts. We honour, respect and believe in our High Court and Supreme Court judges. We also know very well that if we are to build a society under law, if we are to guarantee fundamental freedoms, and justice and dignity to our people, then we must build, protect and maintain the highest standards for our courts. We have absolutely no doubt in our minds that without an independent judiciary we cannot hope to make much progress with our democracy. Therefore we want to join our voice with that of the chief justice to say, let us all work together for a better higher judiciary. The judiciary is our last resort, and the higher judiciary is more so. We must do everything in our power to maintain the highest regards for, and show the highest respect to our courts, especially the higher ones. But they must also work hard to earn it. We feel that the arbitrariness with which the governments of the day usually appoint judges must stop. The chief justice must have a higher say in the process. In fact his objection to any appointment should be final.
How to ensure greater accountability in the higher judiciary is an aspect we want the present CJ to think seriously about. Judges should have some sort of criterion, with which their performances could be measured. In this regard international examples should be studied.
There is definitely a case to be made for greater media access with a 'watch dog' role to the judiciary. In that regard we need to amend the archaic contempt laws and defamation laws that govern the judiciary-media relations at the present. All over the world the media is allowed greater leeway in covering the judiciary. And such coverage, instead of harming the judiciary, have resulted in greater accountability and public support for the venerable institution. Yes, the media needs to learn and be more professional about covering the judiciary. That we will gladly do when the Damocles' sword of contempt of court is removed from over our head. In the end we would like to humbly say greater media focus has never harmed any institution but only helped them to become more accountable, transparent and efficient. We urge the CJ to consider our plea.
We conclude with our happy acceptance of the chief justice's firm commitment that the Supreme Court will rescue the nation from any future crisis. That crisis is most likely to be of democracy and fundamental freedoms, including the freedom of expression and that of the press. If our premonition turns to be false, then nothing like it. But if it does not then we look forward to the Supreme Court and to its present guardian, to bring us back to the path that has been a blessing to all nations --- namely democracies. And in that struggle we pledge our unqualified support.