Law alter views
Bangabandhu Murder case and the issue of "Embarrassment of the judges"
Sheikh Hafizur Rahman Karzon
Article 32 of the Constitution of Bangladesh clearly provides that no one shall be deprived of life or personal liberty save in accordance with law. Only state can deprive a person of his right to life or liberty in accordance with due process of law. When doing so state has to fulfil both substantive and procedural due process. Substantive due process means the law, by which a person will be deprived of his right to life or liberty, must be reasonable and specific. Procedural due process means the person whom the law seeks to deprive of his right to life or liberty must be given notice of the accusations brought against him and that person should be given an opportunity to defend himself by a competent lawyer of his choice.
When any person is accused of committing a murder, that person usually is prosecuted as per the provisions of the Penal Code, the Criminal Procedure Code, the Evidence Act etc. On completion of the trial if any person/persons are proved to have committed murder without any reasonable doubt, that person/persons are punished with capital punishment or life imprisonment or any other sentence. Judgement of the trial court requires confirmation by the High Court Division of the Supreme Court. There is compelling legal necessity that all sentences of death are automatically appealed to the High Court Division of the Supreme Court. If the convict prefers not to file any appeal or can not afford to file it, then the appeal is filed by the government. The trial Judge has to forward his/her judgement and sentence of death to the High Court Division.
Present condition of Bangabandhu murder case
District and Sessions Court of Dhaka pronounced its verdict on November 8, 1998 by which capital punishment was awarded to 15 convicts and 4 were acquitted. The judgement was sent to the High Court Division on November 11 for its confirmation. The then Chief Justice constituted a bench of High Court Division comprising Justice Amirul Kabir Chowdhury and Justice Abdul Aziz on March 30, 1999 to hear the death reference. Justice Amirul Kabir Chowdhury expressed his embarrassment on April 10, 1999 to hear the case. On April 24, 1999 Chief Justice assigned Justice M.M. Ruhul Amin and M.A. Matin to hear the case and they expressed their embarrassment in writing on the same date. This prompted the Chief Justice to constitute a new bench comprised of Justice Ruhul Amin and ABM Khairul Huq who finally heard the death reference and they gave split verdict on December 14, 2000. One of them upheld the judgement of the trial court while other confirmed death penalty of 10 and acquitted 5. On January 15, 2001, third bench of the High Court Division was constituted with Justice Fazlul Karim to dispose of the split verdict. Third judge gave death penalty to 12 convicts. Four of them filed a leave to appeal petition to the Appellate Division against the verdict of High Court Division. On August 16, 2001, Justice Kazi Golam Rabbani expressed his embarrassment to hear leave to appeal. From that time Bangabandhu murder case is pending.
Now there are seven judges in the Appellate Division of the Supreme Court, among whom two heard the case in the High Court Division. Three judges including Chief Justice J. R. Modassir felt embarrassed to hear the case. Justice M.A. Aziz has been appointed Chief Election Commissioner. Among the judges of the Appellate Division only Justice Tafazzal Islam can hear the leave to appeal. But as per rules a bench of three judges will be required to hear a leave to appeal. If the situation remains as it is, a bench of three judges cannot be constituted until March, 2007. The government needs to appoint ad hoc judges to dispose of the case finally.
Dilemma of judges
Very rarely did we hear of judge's embarrassment over hearing a case. However embarrassment of judges has become so frequent on the occasion of hearing death reference and leave to appeal (of Bangabandhu murder case) that people have started to feel embarrassed when they hear judges of the highest court are expressing their embarrassment one after another. Once the highest court of Bangladesh had six 'Embarrassed judges' out of seven.
The judges have the right to feel embarrassed for any justifiable ground. There is no written law regarding the embarrassment of judges. It is an undefined discretion and convention to be exercised judiciously. The cause behind the embarrassments is just to avoid being dragged into political controversy. On judges part, they have very valid reason and argument not to be involved in any political controversy. But the whole situation put the judges in a position of dilemma. They have to think of their security. At the same time they have to consider the legal, moral, social, and political implications of their embarrassment.
The moment a judge feels embarrassed, he makes himself controversial. Because the victim's family, the party and people demanding the punishment of the killers of Bangabandhu may consider this action as unbecoming of a judge. They may consider it as delaying and hindering the cause of justice. On the other hand, a judge hears a case the other side may considered it as not serving their purpose. This party though does not say directly that they do not want successful completion of the Bangabandhu murder case and they do not let the killers to be punished, but their activities amount to total obstruction of the case. Their malafide intention is clear from their protracted policy. Here lies the real dilemma of judges--whether to feel embarrassed or hear the case. Their embarrassment pleases one party and their hearing of the case pleases another party. Most of the judges have failed to come out of this dilemma. But their main concern should have been promotion of justice and commitment to their oath. If the judges hear the case beyond any political consideration or any apprehension or fear that appears to be more rational and consistent with their oath. That is also expected for proper dispensation of justice.
Implications of embarrassment
Justice seekers and the living members of Bangabandhu family can rightly consider that they have not been given due protection of equality before law. Because Bangabandhu murder case has become derailed due to the successive embarrassments of judges. Now they have to wait till March, 2007 for a three judges' bench for disposal of the leave to appeal.
Some might consider the successive embarrassments of judges as violative of their oath and their commitment to promote the cause of justice. An individual judge has right to feel embarrassed and if one or two judges felt embarrassed that would have been quite usual. But the way the judges felt embarrassed one after another that has given rise to all sorts of questions.
Final disposal of the Bangabandhu murder case has been delayed due to the embarrassment of the judges and government's inaction to resolve the stalemate. The government should immediately appoint ad hoc judges to dispose of the case. The judiciary should show boldness in relieving us from the agony of residing in a country where killers remained unpunished for long 30 years and enjoyed all the facilities of the state. The judges have the right to feel embarrassed, but at the same time a citizen possesses the right to get justice. Now the question is-- should the judges feel embarrassed at the cost of justice? Will it contribute positively to build a strong justice system?
The author teaches at Department of Law, University of Dhaka.