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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 23
June 9, 2007

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Higher judiciary should revisit the issue

TMA Samad

Mr. Chief Justice Ruhul Amin's recent candid remark has stirred the whole nation. He has told a hard truth that the damage done to the judiciary in the recent years will take more than 20 years to remedy.

According to Supreme Court sources, there are 68 confirmed judges in the High Court Division and seven in the Appellate Division including the chief justice.

Out of the 68, the appointments of 41 were confirmed during the regime of BNP-led 4 -party alliance government which had appointed 45 additional high court judges. After the authorities appoint an additional judge and the person serves for two years, the chief justice makes a recommendation for confirming his or her appointment based on performance. As a norm, the government always accepts the chief justice's recommendation.

When a judge's appointment is confirmed, he or she can't be removed unless the person voluntarily resigns or a supreme judicial council removes him/her. And that is why the chief justice said it will take 20 years to cleanse the judiciary.

There have been allegations of partisanship and nepotism in relation to most of the 41 confirmations. There are also allegations that some of the 41 judges had been active leaders of BNP. One additional judge happened to be a BNP law maker in the 6th parliament and there is at least one judge against whom there are specific allegations of corruption. The alliance government made the appointments in four installments. In addition they extended the retirement age of the judges allegedly to place a candidate of their choice as the chief of the caretaker government before the 9th parliament election. The move in turn also extended the tenure of controversial judges.

In the last installment of appointments in August, 2004, there were a leader of Islami Chhatra Shibir. Before ending the term in October 2006, the alliance government confirmed the appointments of judges it had appointed including that of Mr. Faisal Mahmud Faizee whose confirmation had not been recommended by the chief justice.

The Supreme Court Bar Association (SCBA) was always vocal and constantly protested against the appointments of judges on the basis of political affiliation instead of their merit. Under overwhelming pressure and evidence the alliance government through a supreme judicial council for the first time had to remove one of its appointed judges Syed Shahidur Rahman on grounds of corruption.

The SCBA's serious agitation demanding the removal of another judge Mr. Faisal Mahmud Faizee for tampering his LLB certificate from Chittagong University was utterly fought back by the alliance government since 2005. The agitation took a serious turn tarnishing the higher judiciary's image. Now under the present caretaker government the authorities formed another judicial council after Chittagong University had formally cancelled Mr. Faisal Mahmud Faizee's LLB certificate.

It is absolutely ridiculous that when such protests were raging former law minister Barrister Moudud Ahmed told the BBC in February 2003 that the government action had been taken in line of the constitution and the laws of the land.

Opposing opinions he held his ground till the last confirmations were made in 2006. It will be appropriate to mention that an institution is built over the years through the efforts and merits of many but it can be destroyed by a single person through whims and misdeeds. In our case it happened through a gentleman who is well known as Chanakya in Bangladesh politics.

In this connection it is pertinent to mention that while a writ petition was moved challenging the takeover of the president as head of the caretaker government and on the day of pronouncement of judgement a slip passed by the Attorney General adjourned the court resulting in violence in the High Court campus. It was a disgraceful and shameful event for the whole nation. And this happening bears the testimony of ill effect of politicisation of institutions.

In view of the facts and circumstances of the issue and foregoing narrative I intend to add the following:

What the chief justice has said reflects the conscience of the whole nation and as a conscious citizen with some patriotic feeling I also feel like others that the nation must be freed from these of such higher judiciary appointments. We have no reason to borne their expenses if they are inept, incompetent and controversial.

It is a matter of great concern and logical also to think that if the corrupt persons are convicted by the special tribunal and thereafter when they will go for appeal to the higher judiciary are likely to get some favour because these justices are the direct beneficiaries of the former BNP-led four-party alliance government and the offenders will try to influence them. Therefore, the removal process should immediately start now so as to ensure that within shortest possible time the desired result could be achieved. There is a maxim "Justice should not only be done; it must be seen to be done". We have absolute trust that the chief justice with his characteristic grit and determination will make his desired contribution in this respect unfailingly.

I think it would be relevant to quote the former chief justice Mostafa Kamal, "If a judge cannot understand law, cannot appreciate facts, cannot read or dictate judgments in the open court, it is not too difficult to prove that by reason of physical or mental incapacity he has ceased to be capable of properly performing the functions of his office."

"Painful though it may be I see no other way but to invoke the supreme judicial council if such case of incorrigible judges exists" -- he suggested another options by forming a "council of elders" where a group of retired chief justices would operate greats at the request of the chief justice to oversee the functioning of everyone holding constitutional posts.

At present, the constitution prescribes that a person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and has, for not less than 10 years, been an advocate of the Supreme Court, or has for not less than the same period, held judicial office; or has such other qualifications as may be prescribed by law for appointment as a judge. Our parliament has not enacted any law prescribing the other qualifications for appointment as a judge of the Supreme Court. In future, the criteria for selection of judges should be made and strictly followed so as to make sure that poor calibre person in no way can hold this most dignified position.

In neighbouring India and Pakistan a High Court judge requires at least five years for the elevation from High Court to Supreme Court. The absence of such probation in our constitution has given the opportunity to become an Appellate judge on political consideration within 2 years.

Former Supreme Court judge Mr Golam Rabbani's proposition for pro-people/people-friendly judicial system is a good concept wherein he has highlighted his experience and pros and cons of the judicial system particularly the ethical foundation of the advocates and the jury system.

In my opinion these propositions can be discussed holding a seminar or workshop and a consensus may be obtained and recommend for future guideline in disciplining the judicial system and uproot corruption.

In conclusion, I urge upon the honourable president, chief of the caretaker government, the chief justice and the law adviser to kindly find out a reasonable solution to resolve the burning issue in the greater interest of the public as well as the country.


TMA Samad is a former director of BARC (Dhaka).


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