An interesting news came out of Afghanistan today. A senior judge was covertly tape recorded while asking for bribe and proposing to marry a woman whose divorce case he was handling. The fallout of the news — whole world in focused on the judge, starting from Afghan president to the Anti corruption guru– every one promised to take action. And no one questioned how illegal it was to secretly tape record a senior sitting judge while he talks about his case. (more…)
December 13, 2012
December 4, 2012
The second term Sheikh Hasina Government has taken the country to a low of unbelievable proportion. Injustice, anarchy, suppression, hypocrisy — all have attained a level beyond the most skeptic’s wildest nightmarish imagination. Be it judiciary, be it defense forces, be it police forces, be it medical profession — all the government jobs are grabbed by political cadres and goons of the ruling party.
Let’s talk about assistant judge Javed Imam. This man was caught with a huge supply of illicit drugs when he was transporting those from a border district to capital city Dhaka. Definitely he and his handlers thought his position of a judge will ensure his protection and immunity from police checks. (more…)
December 29, 2011
The Government of Bangladesh has suggested that it is going to form at least another bench to expedite the trial of the men accused of committing crimes against humanity. There are certain things that the government can do to avoid much of the controversy that is dogging the current tribunal.
- Have at least two judges with district court experience: In the current tribunal, Justice Fazle Kabir was a district court judge before being elevated to the High Court. Zaheer Ahmed is also a retired district court judge. District courts are the trial courts of Bangladesh’s legal system, and the judges who rise up through that system have a far greater experience regarding the minutiae of handling a trial, like evidentiary and exculpatory issues. The transcripts of the direct and cross-examination of prosecution witnesses in the trial of Delwar Hossain Saydee has made this abundantly clear. Justices Zaheer and Kabir have been extremely active in deciding whether to sustain or overrule the objections by the prosecution and the defense teams, while the chairman, Justice Nizamul Huq has mostly been a silent spectator. The new tribunal should also have at least two judges with experience at the district court level, and unlike this the current tribunal, one of these two should be made the chairman of the tribunal.
- Have at least two judges with at least five years of appellate experience: Justice Fazle Kabir was appointed by the BNP government in 2003. So, he had seven years of experience in the High Court under his belt before being appointed to the war-crimes trial. Justice Nizamul Huq, on the other hand, was appointed in 2001, not confirmed in 2003 (along with Shamshuddin Chowdhury Manik, what a wise decision that was), and then again reappointed in 2009. This means that he had only heard appellate cases for 3 years (2001-2003, 2009-2010) before being appointed to the Tribunal, and even that with a six-year gap in between. For the new tribunal, the government would do well to appoint judges with at least five years of uninterrupted appellate experience.
- Avoid controversial judges: At first glance, this may seem to be an extremely subjective measure, but the government would be wise to do all it can to appoint people who are as uncontroversial as possible. Justice Fazle Kabir is controversial because he was the other judge with then-Justice Khairul Huq when he handed down his Fifth Amendment verdict and started our court on its festival of constitution-shredding. However, that is a matter of completely different magnitude from Justice Nizamul Huq, who took part in a mock-prosecution of these same men as a private citizen, and whose presence has irreversibly tainted the whole proceedings. For the new tribunals, Awami League should avoid individuals with direct participation with the 1992 mock trials, as well as those judges who were reappointed in 2009, and some of whom have been elevated to the Appellate Division.
If Awami League really wants to finish all the trial proceedings within the 2012 calendar year, then it has no choice but to constitute new tribunals. However, the absence of interlocutory appeals makes this process quite challenging, since different tribunals could potentially rule differently on the same issues, and the prosecution would be able to take advantage of forum-shopping. While the road ahead is certainly challenging for the government, if it chooses the members of the new tribunal with some foresight (which was very much missing was constituting the current tribunal), it may make its mission slightly easier.
November 22, 2011
In a few days, the International Crimes Tribunal will hold a hearing to decide whether an article written by David Bergman is in contempt of court. The editor and publisher of his employer, New Age, have also been made co-respondents to this order. It would be instructive to take a look at how Bergman has arrived at this situation, and why the Tribunal is devoting its precious time in deciding such ancilliary matter.
Bergman’s reporting, ever since this Tribunal was set up has been invaluable, for two reasons. He has provided a somewhat unbiased voice, reporting the details of the legal proceedings without the ideological goggles that hobble so many of our other reporters. Moreover, he has had at least some interaction with foreign judiciaries, and has been able to effectively compare and contrast the Tribunal against its international counterparts.
We should note, at the outset, that Bergman is British, which means that he has had some experience operating under draconian press laws. This has generally stood him in good stead. A lesser individual, perhaps an American, would have been reduced to hysterics and babbling incoherently about freedom of speech by now.
Last April, Bergman wrote a largely positive piece about the Tribunal. However, the Tribunal picked out two phrases used in the article, and took issue. One was “the tribunal showed itself to have lost its backbone” and the other was “return to being the rubberstamp?” What followed, in the Tribunal’s next proceeding, is best described in Bergman’s own words:
Judge AKM Zahir Ahmed then spoke. He said that an article had come to his attention, ‘International Criminal Tribunal: Growing Independence or a Return to be being a rubber stamp’ which was in part ‘contemptuous’. He said,’Journalists are allowed to express their views’ but cant be in contempt of court.
He then referred to various expressions that were used,’Who is he to say what does or does not have a backbone?’
Justice ATM Fazle Kabir then spoke, and asked whether ‘David Bergman was present in court.’ I put my hand up and he then asked me to stand up. He then said, ‘We have gone through this report. Your manner of reporting is very nice, no doubt … We know that you are of foreign origin and so we are warning you about your language.’
He then said that there were two words that were ‘very much contemptuous.’ He then referred to the use of the word, ‘Rubber stamp’. ‘We are very sorry about this but you can not use this words about our court. If you use these words in future then we will take action. According to the rules of this court in Bangladesh these words are absolutely contemptuous. In recognition of the fact that you are a foreigner, we will not take action against you.’
Yikes. Called out in open court. Not a fun experience.
However, it’s hard to see why hoping a court does not become a rubber stamp for the prosecution should be contempuous; here’s the same term being used regarding the Foreign Intelligence Surveillance Court, one of the US Government’s most sensitive organs, a justice of the United States Supreme Court, and by Julian Assange regarding the British Court ruling that allows his extradition to Sweden. Does that mean that the courts of United States and United Kingdom are less deserving of our respect? Or that they have a greater tolerance for criticism?
What about the Tribunal’s objection to being relegated with the fruit fly and spiders? If that is contempuous, what should we make of thisclaim by Steve Forbes, publisher of Forbes Magazine and a Republican presidential candidate in 1996, that “the United States Supreme Court has the backbone of an eclair?” Should the United States Supreme Court take lessons from the Tribunal in comport and dignity? Or am I guilty of comparing eclairs and chomchoms here?
Well, following this little showdown, Bergman managed to stay out of trouble for almost six months. Until, that is, the Tribunal got down to its actual business and took cognizance of the charges against (a fancy way of saying indicted) Delwar Hossain Saydee. Bergman again wrote a rather milquetoast article: reviewing the proceedings so far, and mapping out the road ahead.
Again, the Tribunal confused Bergman’s expression of some people’s fears about the Tribunal as Bergman’s own opinion, and whipped out its contempt of court order. Looking back, it’s only surprising that the Tribunal restrained itself for so long. Ever since then-Justice Khairul Huq used contempt of court to accomplish what Prime Minister Sheikh Hasina could not, this particular mean of stifling dissent is extremely popular with Bangladesh’s higher judiciary. In short, the feeling is “all the cool benches are doing it, why shouldn’t we?”
The contempt order was passed down on October 3. Bergman and New Age management submitted its replies on October 27, arguing that its report in contempt of court. The Tribunal will hear oral arguments and pass its order some time in the coming week.
In all likelihood, Bergman will get away with only a verbal warning, and maybe a token monetary fine. As noted, the Tribunal is entering a crucial phase here, and it will be unwise to distract attention from its legal work by handing down an unnecessarily harsh measure, especially on such a well-regarded individual. In the off-chance that the Tribunal does impose a more punitive penalty, it will be making its own functioning decidedly more complicated, and add to the miasma of controversies that is already swirling around it.
November 16, 2011
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The case is regarding Mohiuddin Khan Alamgir’s election to Parliament in the last parliamentary election. He is being represented by Barrister Rokonuddin Mahmud. Under a law enacted during the last military-caretaker government, a convicted person could not contest in the election, which Barrister Mahmud is trying to evade. This following exchange takes place between him and the judges hearing the case:
Court: What if we declared the entire military-caretaker government illegal?
Mahmud: (with some concern) That would make the last general election illegal as well.
Court: So what? It would give a nice jolt like the Fifth Amendment verdict.
Mahmud: We don’t want that, and we won’t be making that argument.
The Fifth Amendment verdict, along with the ones handed down by Chief Justice Khairul Huq, including the one cancelling the caretaker system (which has still not been written), did give Bangladesh quite a jolt. Who are the members of the bench wanting to make things even more exciting for our countrymen? The senior member is Justice Shamshuddin Chowdhury Manik, last seen throwing a tantrum in a Biman airplane and threatening to convene a court right there and then unless he was upgraded to Business Class despite having only a Economy Class ticket. The junior member is Justice Jahangir Hossain, who is a nephew of Zillur Rahman, the President of Bangladesh, and earlier used that piece of serendipity to grab the plum posting of Dhaka District Judge, superseding about two hundred judges with more experience. The normally supportive Mizanur Rahman Khan wrote a scathing article in Prothom Alo about Hossain’s shenanigans, which was titled: “The Judicial System is Collapsing.” Not that any of it mattered, Jahangir Hossain was duly elevated to the High Court, probably as Manik’s perfect foil.
Let us turn to another court appearance a few days before that. Three individuals who were accused in the sensational Lokman Hossain murder case, including the brother of the Rajiuddin Ahmed Raju, the current Telecommunications Minister, appear in front of another High Court bench, composed of Justices Syed Mohammed Dastagir Hossain and Gobindra Chandra Thakur. This following dialogue ensues, with Advocate Anisul Huq representing the defendants:
Court: It is an exception to see such a popular mayor being assassinated like this. Will our country run out of good men soon?
Huq: We wouldn’t have come to you, but the situation is bad. Please give us bail for thirty days.
Court: We have tried, but we cannot grant you bail. Our conscience will not allow it.
Where to begin here? First off, do Bangladesh’s judges remember their roles, or do they think that they are the heroes in some Bollywood movie? For the crime of murder, it does not matter if the victim is an elected official, or a popular leader, or an unknown person no one has heard of and no one mourns. The standard is the same, if that standard is met, then the defendants automatically get bail, otherwise not. And where does the judge’s conscience come into all this? In many areas of law, there is a considerable role for ambiguity and discretion. But obtaining a bail is not one of them. There is a straight-forward standard, and a person either deserves bail or does not. And none deserves to see play-acting in our highest courts.
A country can probably have stability if its generals don’t know how to make war, its scientists cannot innovate, or its bankers spend their days in profligate behavior. It cannot have stability if its jurists don’t understand law. Bangladesh’s immediate past Chief Justice Khairul Huq quoted salus republicae est suprema lex – the safety of the state is the highest law – in handing down two of his most controversial decisions, even though nothing could be further from the truth. The safety of the state may be ensured if political opponents are arrested and tortured, or if political dissidents are kidnapped and killed, but the law can never countenance such. Bangladesh may get the leaders we deserve, but its people deserve better judges than these.
September 30, 2011
About ten months into the current Awami League government’s tenure, Daily Star produced this sensational investigative report. In blaring headlines, it pinned the blame for the August 21 assassination attempt on Prime Minister Sheikh Hasina on Tarique Rahman (referred to as Hawa Bhaban bigwig in report), and some other BNP leaders. The assassination attempt was billed as a joint venture between BNP and an Islamic fundamentalist organization.
The timing of this report was extremely significant. Two years ago, it was quite common to hear predictions about BNP breaking apart or an end to the Zia-brand of politics. Rovian dreams of Awami League’s permanent majority was quite du jour. BNP was scheduled to have its annual party council at the end of 2009. A feasible connection between Tarique Rahman and a murder charge would not only put BNP’s leadership transition into question, it would have given the government a huge bargaining chip against the largest opposition party.
Julfikar Ali Manik claimed that a “highly privileged document” from “a top accused of the grenade carnage” was the source of this information. This document finally went public on April 7 2011, when Mufti Hannan was brought in front of a magistrate to give a confessional statement that mirrored exactly what the 2009 Daily Star report had claimed. Important to note, Hannan had already confessed to his own involvement in this crime back in 2007. This additional information was only to pave the way for Tarique Rahman and other BNP leaders to be also indicted for the same crime.
Fast forward to September 27, less than a week ago. Having involved everyone the government wanted to involve, the case starts. Mufti Hanna submits a document stating that his supposed confessions were extracted by torture. How does Daily Star cover the story?
It buries the retraction deep into the story. Which is funny, because the news that the government allegedly extracted a confession from a prisoner in its custody, only so that it can frame opposition politicians, ought to be big news. Amar Desh has reproduced the entire petition, including description of the torture. Eyebrows have been raised for less.
The next day, BNP, quiet understandably, held a press conference claiming vindication and pressing for the name of its leaders to be dropped from the charge-sheet. Again, in the headline, Daily Star made no reference to the alleged retraction. A casual reader glancing at the headline, as I did, would have probably thought it referred to some garden-variety claim made in some rally somewhere, and missed this entire back story.
In an incredible counterattack, to make sure the retraction of the confession was downplayed, Daily Star printed a competing news article claiming that Hannan’s legal petition had no standing. The next day, it got eminent jurist State Minister for Law Quamrul Islam to say the same thing.
Let us look at the legal claims that a confession given under Section 164 cannot be retracted. Section 164 (3) of Bangladesh’s Criminal Procedure Code states:
(3) A Magistrate shall, before recording any such confession, explain
to the person making it that he is not bound to make confession and that if he does
so it may be used as evidence against him and no magistrate shall record any such
confession unless, upon questioning the person making it, he has reason to believe
that it was made voluntarily; and, when he records any confession, he shall make a
memorandum at the foot of such record to the following effect :-
“I have explained to (name) that he is not bound to make a confession and that, if he
does so any confession he may this confession was voluntarily made. I was taken in
my presence and hearing, an was read over to the person making it and admitted by
him to be correct, and it contains a full and true account of the statement made by
(Signed) A. B.,
This makes abundantly clear that voluntariness is at the heart of any confession obtained through Section 164. The fact that confessions extracted through torture are illegal are no surprise; the courts of Bangladesh have been very exact in this regard. Our Supreme Court has explicitly held, in State Vs. Abul Hashem, 3 MLR (HCD) 30, that a magistrate cannot record a confession that is extracted through torture. And then, just to make sure, the magistrate has to affix his own signature at the end, verifying that the statement was not produced through torture.
What factors should a court look at to see whether there were any indication of torture or general police coercion? One very important factor is whether the confession is extracted after being in police custody, or whether there is any possibility that the witness may be taken back to remand right after his interaction with the magistrate. In State Vs. Farid Karim, 8 BLT(AD) 87, the fact that the accused was in police custody for unexplained two days before the police produced him for making confessional statement, was one of the important factors in the confessional statement being found involuntary.
Has Mufti Hanna been taken in custody, also called remand, often? According to a very desultory Google search, he has been remanded for 7 days on September 6, 2009, 5 days on September 12, 2009, 3 days on September 23, 2009, for 7 days on December 3, 2009, for 3 days on July 18, 2010, 2 days on August 22, 2010, and 5 days on December 27, 2010 . After making the statement, he was remanded for 1 day on April 26, 2011. That makes for 32 days of remand, and potential police torture, before and 1 day after making this confession statement. During the remand hearing held on August 22, 2010, Hannan tallied the number of days for which he had been in remand at 369 days over the past five years, and begged the magistrate not to grant any more remand. Remand, though, was granted.
Hanna was in police remand for half of September 2009. Presumably, it was this during this period that the document which became Julfikar Manik’s investigative piece was produced.
Even if this confession was made through torture, should we care if such confession statements cannot be retracted? Yes. There exists a plethora of judicial opinion, specifically State Vs. Lalu Miah and another, 39 DLR(AD) 11, which holds that any allegation of torture which forced the confessional statement, is to be treated the same as a petition for the withdrawal of the statement. Now that Hannan has claimed torture in police custody, the judge must decide whether his earlier confessional statement is credible. So the claim that there is no legal basis for withdrawing his confessional statement is without merit.
So why is this about the Daily Star’s coverage of this whole issue, rather than the much serious issue of torture of a prisoner in government custody, in a conspiracy to subvert the opposition political forces. There are two main reasons. The first is that we hear about these human rights violations through newspapers, and especially the Daily Star. If not for the Daily Star, Limon would be rotting in a jail cell or dead by now. So, when the newspaper itself decided to obfuscate the story and shift the focus to legal technicalities like getting permission from jail authorities instead of the much bigger and more serious allegation of torture in government custody, it renders hollow its supposed commitment to human rights and reinforces the suspicion that the news printed in Daily Star is slanted to serve a particular agenda.
Secondly, torture does not occur in a vacuum. No torture can flourish in a society unless it decides, as a whole, that certain individuals or classes of individuals are exempt from the protection of law. It very much seems like Daily Star has made such a finding for Mufti Hannan, which makes the paper, in general, and the relevant individuals, in particular, accomplices to torture. And the insidious thing is that the class of people who can be tortured tends to grow and metastasize at unbelievable speed. You may think that it only includes people with beards, and then suddenly, it also includes young university students out at night.
This saga is by no means over. While there is an aspect to it that has a purely partisan aspect, this incident also serves as a reflection of the values that we hold as a society. And those values are fraying fast.
September 14, 2011
It is always sad when a government with an overwhelming majority like the present Awami League government loses its way. Unfortunately, a host of recent developments all point to that direction. One theme that all these events have in common is that they represent attacks on free speech and political expression, something that should be sacrosanct in all democratic societies.
The most glaring demonstration of this trend has been evinced by the behavior of Prime Minister Sheikh Hasina, who, in her speech in the last session of Parliament, accused the members of parliament of her own parties of “arming her enemies”, by criticizing some members of her cabinet, specifically Communications Minister Syed Abul Hossain. Emboldened by this, Awami League General Secretary and LGRD Minister Syed Ashraful Islam accused the media of “creating the ground for Hasina’s death.” Of course, once the two most important leaders of the ruling party expressed their disdain of dissent in media so openly, other Awami League leaders wasted no time in springing into action. Supporters of Shipping Minister Shahjahan Khan, who has faced a lot of flak for suggesting the unqualified drivers be given long-distance driving permits, have seized bundles of newspapers, and set them to fire. A peaceful human chain organized by BNP to protest the crumbling state of infrastructure was attacked and broken up by Awami League activists. To cap it all, Hasina herself, in a cabinet meeting, instructed intelligence agencies to investigate the organizers of a peaceful rally held in the Shahid Minar on Eid Day.
Unfortunately, the government has made our judicial system an indispensable tool in its all-out war against free speech. Some of the developments are petty: like a sedition case being filed against a cleric for criticizing the government during the weekly sermon. Others are more serious, like Sheershanews editor Ekramul Haq being put in police remand (code for torture) multiple times for writing about corruption charges against certain members of the cabinet, specifically State Minister for Environment Hasan Mahmud. The use of the judiciary to achieve partisan ends only promises to heat up further after the High Court convenes on October 9th after its vacation. BNP acting Secretary General Mirza Fakhrul Islam Alamgir and Standing Committee member Moudud Ahmed have already been summoned to answer charges of contempt of court. If that goes well, the field is already being prepared to embroil Khaleda Zia in the same contempt charges.
Unfortunately, these tendencies were in full display during the passage of the Fifteenth Amendment to the Constitution of Bangladesh, which added Article 7A stating that both to “subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article” or to take any action that ”abets or instigates… approves, condones, supports or ratifies” this subversion is sedition, and is to be punishable by death. Just to put this matter into perspective, given that this blogpost is fairly critical of Article 7A of the Constitution, I have just committed sedition. If a reader reads this post and approves, she has also committed sedition. Moreover, if someone then forwards this link (I know, highly unlikely) to a friend by email, that’s sedition too.
We are all going to drown in a sea of sedition.
When finalizing this Amendment, Hasina said in the House that she had acted thus to ensure ““empowerment of people, and their democratic and voting rights.” Perhaps, she had in mind, the provision that said that several parts of the Constitution, including one which titled her father Sheikh Mujibur Rahman as Father of the Nation, could not be altered or amended in the future. Although, it seems like depriving future generations of the power to change the document that will affect their lives in such important ways is the express opposite of empowerment.
However, Hasina is not in good company. In the United States, home of the world’s most famous constitution, there has only been, in the country’s entire two hundred years plus history, only a single proposed amendment that sought to place any topic beyond any further debate or amendment, and it was the infamous Corwin Amendment. In this proposed amendment, in a last-ditch effort to avoid the Civil War, it was proposed that subject of slavery would not be open to any future amendments, effectively meaning that no future government could outlaw slavery. As we know, the Civil War was fought, and an alternative amendment, now known as the Thirteenth Amendment, was incorporated to outlaw slavery.
Hasina and her party love to glorify the role of Awami League in the 1971 War of Liberation. Unfortunately, it has been overwhelmingly documented by Dr. Badiul Alam Majumbad of SUJON (not a big fan of BNP), that the inspiration for this Fifteenth Amendment comes directly from the Pakistani Constitution. Around the world, there are have been two prominent laws passed in the last year that punish people for saying something. One was passed in Saudi Arabia, and it mandates jail sentences for anyone who criticizes the King of Saudi Arabia. The other was in Israel, which criminalized “calling for the boycott of Israel.”
This is not good company for Bangladesh to keep. As the current government finds itself increasingly unpopular, the risk remains that it will use these new laws to further crack down on dissent and opposing political parties. Which will be a sad ending for a government that held out so much promise.
August 26, 2011
Former Deputy Attorney General M U Ahmed died today under police custody in a city hospital. On August 11, 2011, at the order of high court judges Shamsuddin Chowdhury Manik and Gobinda Thakur, he was arrested and tortured by police until he suffered from a massive myocardial Infarction.
It is evident that everybody living in side Bangladesh is afraid of calling a spade a spade. An environment of fear, extreme fear has been created by these two thuggish judges in Bangladesh. Last in their list of atrocities in the murder of ex Deputy Attorney General Advocate M U Ahmed. This is plain simple muder commited at the beheast of two blindly partisan judges by a brutal murderous police force of Awami League government.
August 12, 2011
Suddenly ‘Bangali’ and ‘Bangla’ have become high demand hot objects.
Some people and some leaders of the Bangalis living on west part of the Bangali inhabited land, which is currently known as Indian state of west Bengal, do not want the west qualification before the name Bengal. This article describes the phenomenon objectively while this article clearly protrays the childlish shenanigan related to the name change campaign. Athough one main reason for the name change is West Bengal citizens wishes to see their state name mentioned early in the alphabetical list of Indian states instead of being at the fag end because of the unholy ‘W’ at the top of the state’s name — there was no lack of patrons behind this move. Starting from newly elected CM Mamata Banerjee to ‘Times of India’ newspaper empire; there has been great enthusiasm regarding this campaign.
However, with rising tide of Indian nationalistic fervour and ever increasing clout of Hindi in West Bengal, the Banglis belonging to east side of Bangali inhabited land, now called Bangla Desh, a sovereign state, may legitimately ask what kind of Bangla would flourish in the Indian state of Bangla. Will that be the Bangla narrated in Amar Shonar Bangla or like this one “Ami vi Bangali achhe”.
On the other hand in the east side of Bangla land, Bangladesh, Bangali is again the hot item. A recent constitutional amendment mandates everyone in the nation to be identified as Bangalis. Although it may not be the problem with nations majority ethnic group, the Bangalis, the indigenous people living in diferent corners of the country find the 15th amendment constitution stripping them of their ethnic identity.
In this video clip, Mr Shantu larma, an ethnic Chakma and a leader of Chittagong Hill Tract indigenous people, asks prime Minister how she would feel if someone forces her to be identified as an ethnic Chakma.
However, by this newly enacted amendment, one cannot even criticize this sort of constitutional provision. Thanks to this 15th amendment, PM hasina, with the help of partisan thuggish high court Judges Manik and Gabinda Thakur et el, can hand down capital punishment anyone objecting to any clause in the constitution.
A more interesting phenomenon regarding the Bangali nationalism debate is sudden change of heart of our left leaning progressive intellectuals about ‘Bangladeshi’ nationalism. These folks has always found it a religious ritual to come down hard upon late President Ziaur Rahman for replacing “bangali” nationalism of heavenly 72
constitution wth “Bangladeshi” nationalism. But now these folks are all for inclusion of ethic groups in our constitutional identity, which is only possible with Bangladeshi nationalism.
May 13, 2011
Chief Justice ABM Khairul Haque is going on retirement next week. His retirement will mark the end of, in fellow blogger tacitaerno’s words, a reign of constitutional terror.
With his retirement, Justice Mojammel Hossain will be the new chief justice. Justice Haque could become chief justice and now he is being followed by Justice Mojammel Hossain only because both of them have proven their utmost loyalty to current ruling party and it’s leader. Both of them superseded Justice Shah Nayeem to become chief justices.
Below is a video montage of comments of different sort of legal professionals on the state of Bangladesh judiciary.
Will start with comments of a leading Supreme Court Lawyer Barrister Sara Hossain,
May 12, 2011
The last BNP government passed the 14th Amendment on May 16, 2004. One of the provisions of the amendment was to raise the retirement age of our Supreme Court judges to sixty-seven from sixty-five. The move was commonly eviscerated as an attempt to influence the identity of the individual who would be the next Chief Adviser of the Caretaker Government when BNP left office. From Awami League’s own website:
On principles, nobody has got any reservation in enhancing the retirement age of the Supreme Court Judges…
This amendment has got direct bearing on formation of the next Care-Taker Govt. as per Article 58A of the Constitution…
Whatever may be the timing of holding the parliamentary election, it is now clear that the next Care-Taker Govt. would be Headed by the last retired Chief Justice of Bangladesh Justice K.M. Hasan. The burning question is whether it is at all possible to hold a peaceful, fair and impartial election by a Caretaker Govt. headed by Justice K. M. Hasan.
As the above makes clear, Awami League vehemently objected to the notion that the government was doing something to influence who would be the next Chief Adviser of Bangladesh. So vehement was Awami League’s opposition, that it launched the infamous logi-boith movement, that eventually led to two years of emergency rule. Supporters of Awami League went into intellectual paraoxysms to justify how influencing the identity of the chief adviser was such a grave sin that it would call the entire fairness of the election in question and no fair elections would be possible.
Awami League justified their decision to launch violent protests several times citing the persona of Chief Justice Hasan: “Awami League’s main demand is that Justice KM Hasan should not be made Chief Advisor of the caretaker government,” “the main bone of contention was the choice of the head of the caretaker authority to supervise the election,” “no blue print election under the BNP-Jamat alliance with Justice K M Hasan as the Chief Adviser of the Caretaker government,” “The AL does not want Justice K M Hasan to head the non-party administration.”
Writing on the tumultous day of October 28, 2006, Mahfuz Anam had this to say:
The fact that Awami League, the biggest opposition party, questions his neutrality has been known to us ever since he became the choice of caretaker chief. However, by itself, the AL’s claim did not cut much ice with us. Whatever partisan leanings there were back in the 80s, Justice Hasan’s subsequent role as a high court judge and later as the chief justice have revealed him to be a man of sufficient integrity and professionalism to be acceptable to all. Several lawyers and former judges that we have spoken to reinforce our view that he is sufficiently capable of carrying out his task as the chief of the caretaker government with fairness and competence. We also consider the controversy surrounding his latest visit to a mazar in Comilla to be highly exaggerated and blown out of proportion. Therefore, we repeat, by itself the argument of partisanship does not impress us…
However, it is the constitutional legitimacy of Justice Hasan’s position, in other words the way he became the choice to be the caretaker chief that, in our view, greatly weakens his moral authority to be the next caretaker chief…
The fact that he became the choice to be the caretaker chief because of a special constitutional amendment, in May 2004, extending the retirement age of judges from 65 to 67, naturally weakens his position.
There you have it. The decades of public service and unimpeachable behavior of a former chief justice of Bangladesh was not deemed strong enough to withstand the suspicion that he may become the chief advisor through the machinations of the government. The fact that a constitutional amendment (that, among other things, raised the number of women in our parliament, and also raised the retirement age of the Comptroller and Auditor General and members of the Public Service Commission) had the incidental effect of making him the next chief adviser was deemed sufficiently fatal to his prospects.
Fast forward to 2011. Chief Justice Khairul Haque’s reign of constitutional terror comes to an end on May 17. His replacement would normally be the next-senior justice, Justice Shah Abu Naim Monimur Rahman (appointed to the High Court by Chief Justice Habibur Rahman’s caretaker government, elevated to the Appellate Division by Fakhruddin Ahmed’s caretaker government). Instead, Awami League violates seniority and appoints Justice Muzammel Hossain as chief justice (our sincerest congratulations to him, and to Barrister Motahar). The sole motive of this violation of judicial seniority is to ensure that Chief Justice Khairul Huq becomes the next chief adviser of Bangladesh. Moreover, this violation in judicial seniority comes on the back of an earlier violation when Justice Khairul Haque was appointed chief justice by superseding two other justices senior to him. And an earlier move when the size of our Appellate Division was expanded from seven to eleven, all to expedite the promotion of Khairul Haque to the Appellate Division.
For all those who supported Awami League’s admittedly violent excesses during 2006, and its support of a de facto martial government on January 11, 2007, what should be done now? Or is it fine as long as Awami League is the beneficiary?
April 17, 2011
Indeed, a very bad precedent you are creating Dear prime Minister Hasina.
Removal of Chowdhury Alam was very important to ruling Awami League Government’s political strategy. Mr Chowdhury Alam, as elected representative from Dhaka’s city center area, was the key field level organizer of all the city center rallies/ programs of opposition of BNP. Awami League takes opposition activities very seriously. They simply don’t want opposition to exist or act in any form. Departure of Mr. Alam came as a big debacle for opposition BNP as Mr. Alam was their key figure in it’s efforts to organize street agitation in Dhaka.
It has been nearly a year Mr. Alam went missing. Nobody accounted for his whereabouts.
In this list of missing under the current regime, Chowdhury Alam definitely was not the only name. The list became long quickly within first two years of this regime.
Last name in this list is the son of an opposition political figure. A rightwing orthodox islamic political leader and a Madrassa principle, Mr Fazlul Haque Amini had been protesting, peacefully, against the new fuggy inheritance policy of the government. A nationwide strike was organized last week and rallies are taking place on regular interval. Government’s top leadership reflected the whole issue personally on Amini. Statements made by the the prime Minister as well as other senior ministers were clear indication of the level of discomfort this government is experiencing in Handling this Amini trouble.
So not sure how to handle Amini, as any direct crackdown on Amini led madrassa based politics may be perceived as attack on political Islam by rural Bangladeshis, this prime Minister seemed to have taken the Chowdhury Alam route. Like Chowdhury Alam, the news broke as an arrest of Fazlul Haque Amini’s son Abul Hasanat by plain clothed policemen. Multiple news outlets carried this news.
And exactly like Chowdhury Alam case, since his abduction, Mr Abul Hasnath remained unaccounted for. Except for denying that he was arrested, there has not been any statement from any corner of the government regarding this incident. There has not been any visible action by law enforcement agencies to solve the problem by rescuing the abducted person. Mr. Amini, the father of the victim, has been complaining that he is regularly been threatened from the mobile phone belonging to his son. Bangladesh law enforcement agencies has the capabilities to track the phone records and locate from where the calls are made. Using this system, they solve most of the crimes these days. The silence from government quarters about the abduction, Prime Minister Hasina’s continued verbal attack on Amini ( Her last statement about Amini was that Khaleda Zia let Amini loose on the government), absolute absence of any action by law enforcement men to rescue or at least trace the abducted — should be enough evidence to suspect government’s hand behind the abduction of Amini’s son.
The government must understand that denying the abduction does not let them off the hook. It is the responsibility of the government to protect the safety of it’s citizen. A man suddenly can be whisked away in broad daylight from mains street Dhaka and Government will not have any say in it — this cannot happen in a civilized society.
Abducted and missing opposition activists and their families have been the historical hallmark of all the fascist governments in history. We don’t want to believe that our country is heading the fascist way. But the series of events, starting from Dr Yunus saga to the abduction of the son of Fazlul Haque Amini force us to fear about impending fascism.
April 6, 2011
In 2003-04, when Petrobangla faced an arbitration case against Petroleum giant Cairns in the International Centre for Settlement of Investment Disputes (ICSID), the lawyers who were selected to represent Bangladesh and PetroBangla had no experience in international commercial arbitration. The second Khaleda Zia government made that selection based on the lawyers pro-BNP lebel. The result was expected, PetroBangla lost the winnable case and Bangladesh lost a substantial amount of money. The defeat was attributed to poor legal representation and lack of understanding between Petrobangla and its lawyers.
However, in early 90s Bangladesh government and petrobangla won an international arbitration against Canadian petroleum giant Scimitar. The lawyer representing Bangladesh Government was Dr Kamal Hossain and Associates.
So, when Bangladesh was again forced to go to the International Centre for Settlement of Investment Disputes (ICSID) in March, 2006 for another dispute involving Chevron, Dr Kamal Hossain Associates were called back in to represent Bangladesh and PetroBangla. The hearing took place between 2007-2009. Although similar case against Cairns went against Bangladesh in 2004, this time the international arbitration court turned down US oil giant Chevron’s claim of around $240 million from Petrobangla. Dr Hossain’s able representation did not only save Bangladesh $240 million dollars of back pay, it also ensured $320 million more savings over the next 20 years contract period.
March 25, 2011
I have very little to add to the excellent summation of the recent HC verdict posted earlier. I would like to note some additional points. In our adverserial justice system, both sides get lawyers who argue for their clients. In this verdict, there was no one representing Ziaur Rahman. Whatever the merits of this writ petition, it seems unusual to proceed when one of the main actors is not represented in the case.
Much has been made out Lawrence Lifschultz’s statement to the Court, but given that he himself admits that he is reporting information that others told him, his statement becomes hearsay, and is not admissible in a court of law. Justice Manik has warned that any criticism of Lifschultz would be considered contempt of court. As we shall see below, contempt of court is a favorite weapon of Justice Manik’s. However, this sort of extension of contempt of court by fiat, to a person who is not a judge or officer of the court, is simply ridiculous. Finally, this case is directly covered by the Fifth Amendment verdict. Under that prior decision, the legality of the Taher trial comes down to whether this trial falls under these two exceptions:
(c) all acts during that period which tend to advance or promote the
welfare of the people;
(d) all routine works done during the above period which even the
lawful government could have done.
This is all the bench had to do. Did this trial increase public welfare? Even if martial law was not in effect, would another government have tried armed mutiny against the government? Instead, Justice Manik went on a determined campaign to vilify Ziaur Rahman.
Two years ago, Justice Manik was simply another Awami League hack in a position of power. However, he has certainly stood out in the last two years. He is on record defending BKSAL. He delights in hauling individuals, mainly private citizens and mid-level government employees, in front of him and berating them in most unjudicious language. On one occasion, he told Ziaul Huq Khandkar, chairman of the SEC:
পর্যায়ে আদালত চেয়ারম্যানকে তিরস্কার করে বলে, আপনি দায়িত্ব পালনে অযোগ্য। গত এক মাস ধরে শেয়ারবাজারে যে অস্থিরতা দেখা গেছে, তার জন্য আপনার মতো লোকরাই দায়ী। আদালত শেয়ারবাজারের অস্থিরতার নেপথ্যে ষড়যন্ত্র থাকার ইঙ্গিত দিয়ে আরও বলে, যিনি বিধিবদ্ধ সংস্থা ও সরকারী সংস্থার মধ্যে পার্থক্য বোঝেন না, তিনি কী করে পরিস্থিতি সামলাবেন! এটা তো একটা কমন সেন্সের ব্যাপার। দীর্ঘ দিন অভিজ্ঞতার পরও তাঁর কমন সেন্স হয়নি।এ সময় আদালত তাকে তীব্র ভাষায় ভৎসনা করে দাঁড়িয়ে থাকার নির্দেশ দেন।
However, his choicest words were reserved for Syed Abul Maqsud:
আদালত এক পর্যায়ে বলেন, একটা লোক নিজেকে বুদ্ধিজীবী মনে করে, এটা একটা দায়িত্বজ্ঞানহীন বক্তব্য। আদালত বলেন, তিনি একটা ষড়যন্ত্রকে লালন করছেন। এ সময় সিনিয়র আইনজীবী ইউসুফ হোসেন হুমায়ুন বলেন, তিনি নিজেকে গান্ধীর অনুসারী বলে থাকেন। এ সময় আদালত বলে, কিভাবে গান্ধীর অনুসারী। তিনি একটি বুদ্ধিহীন লোক। তিনি যা লিখেছেন তা মারাত্মক। এক পর্যায়ে একজন আইনজীবী বলেন, তিনি একজন বুদ্ধিজীবী। তখন আদালত বলেন কিসের বুদ্ধিজীবী, তিনি একজন নির্বোধ। অপর এক আইনজীবী বলেন, তিনি জ্ঞানপাপী, তখন আদালত বলেন কিসের জ্ঞানপাপী, তিনি নির্বোধ। আদালত বলেন, কোর্ট সম্পর্কে আপনার কোন পরিষ্কার ধারণা নেই। আবার টেলিভিশন চ্যানেলে টক শোতে বড় বড় কথা বলেন। আদালত সম্পার্কে টিআইবির রিপোর্ট সাপোর্ট করেন। টাউট, বাটপাড়, দালাল-যারা ঘুষ নিয়েছে তাদের আদালতের অন্তর্ভুক্ত করে টিআইবি বিচার বিভাগের দুর্নীতির রিপোর্ট প্রকাশ করে। সে রিপোর্ট আপনারা সমর্থন করেন।অতিরিক্ত এটর্নি জেনারেল এম কে রহমান আদালতের কাছে আবুল মকসুদকে মার্জনা করার আবেদন জানালে আদালত তাকে সারাদিন দাঁড়িয়ে থাকার নির্দেশ দিয়ে বলেন, এ ধরনের বুদ্ধিজীবীর জন্যই দেশের আজ এ অবস্থা
Justice Manik declared the Seventh Amendment illegal, but forgot to cancel the punishment for the appellant, which was the main point of the case. However, he certainly did not forget to let the nation know that he hated, hated, hated Ziaur Rahman.
Even after such devoted Zia-bashing, Justice Manik was hurt when he was not granted seniority and the recent promotion of judges to the Appellate Division were not to his liking. He threatened to promptly go on leave, but then changed his mind.
Hopefully, the spectacle that Justice Manik is making of himself and of the judiciary will cause everyone to think more critically about the necessity of placing qualified individuals on the bench. The issue here is not political identity: all individuals can have their own political philosophy. However, when law is nakedly insubordiated to partisan ideology, the image of the judiciary as a whole, and the rule of law it is designed to implement, is irrevocably damaged.
March 22, 2011
While giving the verdict on the legality of the punishment of Colonel Taher, the high-court bench of Justices Shamsuddin Chowdhury Manik and Zakir Hossain declared that the whole trial process was illegal and it was in fact a cold blooded murder of Taher by Late president Ziaur Rahman.
What high-court did to come to this conclusion? They interviewed one shoddy journalist character Lawrence lifshultz, who is a political follower of Taher’s communist doctrine. Other interviewed are also 1. Political opponents of Ziaur Rahman’s political platform 2. Supporters of ruling party who took it as their prime job to destroy Zia’s image 3. Political followers of Colonel Taher. Even the judges who delivered the justice, are publicly known nemesis of Ziaur Rahman’s ideology and are former leaders of socialist political platform based on Taher’s doctrine. And this is probably the first court proceeding in Bangladesh history where an witness could simply deliver his opinion via e mail to a third person. There was no ‘balai’ of oath taking, cross examination etc.
Before we go further into what these two judges did and what their judgment means, lets see what Taher in fact did back in early 70s.
1. Taher revolted against the then Awami League government of Sheikh Mijibur Rahman and formed and led an armed force called ” Gonobahinee”. Thousands and thousands of Awami League activists, leaders as well as general people were killed by the armed force. Any literature describing Mujib era Bangladesh will give testimony of the atrocities of Taher’s Gonobahinee.
2. While all other sector commanders were being promoted in the army as Brigadier/ Major General and who in turn helped rebuild the army, Taher was sacked from Bangladesh army by Mujib Government. ( It is unclear what Shamsuddin Chowdhury Manik had to say about this cold blooded sacking of ‘war hero’ Taher).
3. Many sources, well informed of the political military dynamics of 1975, say that it was Taher who was more likely to kill Mujib and there was an invisible race among Taher’s group and Faruq Rashids group in who would kill Mujib first. After hearing of the massacre of 15th August, most observers’ first suspicion was on Taher.
4. Taking the advantage of unstable situation of Bangladesh, Taher’s forces ( a select group of armed anti state forces including Taher’s brother Bahar) attacked Indian High Commission in Dhaka in an attempt to kill India’s high commissioner in Dhaka, Mr Samar Sen. Although Samar Sen survived with bullet wounds in his back, Police force guarding India’s high Commission shot and killed four members of Taher forces ( Including Taher brother Bahar).
January 1, 2011
… in today’s Bangladesh, don’t bother working hard, striving for excellence — okay, those old virtues had been out of fashion for a while — but even the ‘new formulas’ of bribing and using one’s maternal uncle to get the desired outcome, even that stuff is useless in today’s Bangladesh. If you want something in today’s Bangladesh, I suggest you do two things: find some way to blame Ziaur Rahman for whatever ails you, and then claim you are the victim of a vast conspiracy to foil the war crimes trial.
Consider the recent verdict declaring the 7th Amendment to the constitution illegal. Since Ershad now dreams Mujib’s dreams and believes in trying war criminals, some readers might not be aware of the background to this.
Bangladesh had a democratically elected civilian government on 23 March 1982. Abdus Sattar, a distinguished public servant and judge (and the election commissioner who presided over the historic 1970 election) had defeated Kamal Hossain, another distinguished legal scholar in the presidential election of 15 November 1981. There was functioning parliament, where the opposition regularly debated issues of national importance. Another parliamentary election was scheduled within two years. There was no anti-government andolon, no hartal-oborodh-gherao. In short, there was nothing like the political gridlock that the supporters of 1/11 claim to have justified Moeen’s coup, nor the stifling fascism that some claim to have precipitated 15 August. But this didn’t stop Lt Gen Hussein Muhammad Ershad from overthrowing the government, suspending the constitution, and declaring martial law. Then, in 1986, after a farcical election involving Ershad’s current leader Sheikh Hasina, the parliament retroactively amended the constitution to legalise Ershad’s military regime. According to Justices AHM Shamsuddin Chowdhury and Sheikh Md Zakir Hussein, this retroactive amendment to the constitution is illegal.
So far so good. Now, how is this relevant to Ziaur Rahman? That guy was dead and buried (or his dead body thrown into the Bay of Bengal according to the Awami version of history) when all these happened. But it seems to me the two judges have ambition to become Chief Justice someday. After all, they saw how a partisan hack like Khairul Haque got the job by showing unrestrained hatred of Zia. How else to explain the Zia-bashing in the verdict?
And anyone pointing out that our judges are undeserving of any honour is routinely accused of being part of the conspiracy to save the war criminals. Don’t believe me? Ask the TIB folks.
So, dear reader, do you want to start a business and need some loan? Go to the bank and say how Ziaur Rahman betrayed the nation and if you don’t get the loan, war crimes trial will fail. You want a ticket to the World Cup cricket? Go to the counter and say Ziaur Rahman is a murderer, and you need the ticket to save the trial. Your girlfriend won’t put out with you, I am sure Zia is to blame.
December 29, 2010
The memory of two years of under disguise martial law is still fresh in our minds. Among many things, that was the time for the center right politics in Bangladesh to get a much deserved thrashing. The military regime did not only go overboard in thrashing the emerging icon of center right politics, Tarique Rahman — the Army Chief and disguised CMLA Moeen U Ahmed received Horses from his Indian counterpart fulfilling all its symbolic value and pardoned a convicted murderer because he was a freedom fighter! And when the martial law steamroller was at its peak, rather surprisingly, woke up a portion of Dhaka University. During that short lived rebellion and the months following, while neo-Awami Leaguer and master revisionist of History Dr Anwar Hossain became face of intellectual and academic resistance, pro-BNP teachers suddenly all became pro -milirary crusaders. After enjoying all the perks of BNP rule of ten years, these “BNP minded” teachers who claim to belong to “Shada Panel”, suddenly became silent academic scintists who don’t understand anything about politics. However as Moeen U’s adventurism failed, it looks like suddenly these ‘Shada panel” academics got their voice back. Here are some excerpts of their recent chattering taken from Ali-Mahmed’s blog…
ঢাকা বিশ্ববিদ্যালয়ের জীববিজ্ঞান অনুষদের ডিন আবুল বাশার বলেন, “দেশের আকাশ-বাতাসসহ প্রতিটি কণা ‘আমি তারেক জিয়া বলছি’ ডাকটি শুনতে চায়।” (প্রথম আলো/ ০৪.০৯.১০)
কলা অনুষদের ডিন সদরুল আমিন বলেন, “আমরা চাই তারেক জিয়া আমাদের মাঝে ফিরে আসুন…।”
বিজ্ঞান অনুষদের ডিন তাজমেরী এস এ ইসলাম বলেন, “…তারেক রহমান দেশের বাইরে বসে আত্মসমালোচনা ও আত্মবিশ্লেষণ করছেন।”
ঢাকা বিশ্ববিদ্যালয়ের শিক্ষক সমিতির সাধারণ সম্পাদক এ বি এম ওবায়দুল ইসলাম বলেন, “তারেক রহমান তারুণ্যের অহংকার। তাঁর দেহে দেশপ্রেম ও স্বাধীনচেতার রক্ত বইছে।…।”(প্রথম আলো/ ০৪.০৯.১০)
Anyway all their Tarique Rahman love fest did not help them win votes of Dhaka University teachers. In both Dhaka University and Chittagong University; the ” BNP-Jamaat ভাবধারার সাদা প্যনেল” got their thrashing of life by being soundly defeated.
One can rest assured that these dumb scoundrels will not take lesson from this. They will keep on their তারিক বন্দনা forgetting their real role in Bangladesh politics.
First of all, while they have their right to get involved in national level politics, they should have known that they should not bring the national politics in University Teachers union election.
Second, when university teachers get involved in national politics, they are expected to play the role of ideologues and pressure groups of caution within their political platform. Arranging Tarique love fest is exactly the thing that is not the job of University teachers. But being the ideologues and pressure group of caution within the party, their role should have been to speak out that Tarique is at the core of everything that went wrong with BNP since 2001. Thanks to Tarique Rahman, BNP got 20% less vote than Awami league during last election. These university teachers were supposed to tell that to Mrs. Khaleda Zia. Who will tell otherwise? They are the ones who would rather arrange seminar, round tables and talk about the outrageous nature of the verdicts of current Chief Justice Khairul Haque, or the gross misinformation and frank lies in the Fifth Amendment verdict. These teachers should have been the ones who should have explained Zia’s politics to the new generations. or discuss about the শুভঙ্করের ফাকি in the name of transit or they would have been nations conscience regarding Tipaimukh issue. And shame on these morons, only thing they thought they could do is this, “দেশের আকাশ-বাতাসসহ প্রতিটি কণা ‘আমি তারেক জিয়া বলছি’ ডাকটি শুনতে চায়।”
And thirdly, what do these BNP supporting teachers mean by “BNP-Jamaat ভাবধারার সাদা প্যনেল”? Do they know or understand what is Jamaat’s vabdhara? Jamaat’s main political goal is establishment of আল্লার আইন . How does that match with BNP’s ভাবধারা ? Do that Dean of Arts faculty, those Professors of History know that BNP founder Ziaur Rahman did not allow jamaat to do politics in Bangladesh? Or I am expecting too much from these foolhardy opportunists known as Shada panel member teachers?
If this is the intellectual quality of the academic leaders of our top academic centers, what is the future of the country?
December 25, 2010
While our top judiciary were busy protecting their মান সম্মান (respect) by jailing, punishing and fining editors, newspaper reporter and publisher, it looks like the ‘public’ has spoken out. There is a local saying, পাবলিকের মুখ তো আর বন্ধ কইরা রাখতে পারবেন না… one can gag the media by jailing maverick editors, but whatever powerful one may be, no one can keep the general public from speaking out.
Exactly this is what happened to our high judiciary. Bangladesh chapter of Berlin based Transparency International conducted a household survey about their perception of corruption in different service sector in Bangladesh. In that survey, Bangladesh’s top judiciary was deemed most corrupt, even superseding Bangladesh’s notorious police force.
It is true a better perception should not have been expected when the high judiciary in Bangladesh is now led by shamelessly partisan, hypocrite, academically ill and misinformed Judge, Mr Khairul Haque. It matters a little how or what the leadership of our higher court feels about this demeaning public perception. But it is important to emphasize that after this, the judiciary does not have any moral right to keep dissident editor Mr Mahmudur Rahman in jail. Reporter Oliullah Noman, who already served a jail sentence, deserves an apology from this judiciary.
One may ask why public perception about the integrity of our judiciary did give such a nosedive. For them the story below should be enough to describe the state of our judiciary.
গত ১৩ নভেম্বর মতিঝিল থানায় দায়ের করা গাড়ি ভাঙচুর মামলায় বাংলাদেশ জামায়াতে ইসলামীর ঢাকা মহানগর আমীর রফিকুল ইসলাম খানকে গ্রেফতার দেখিয়ে জিজ্ঞাসাবাদের জন্য সাত দিনের রিমান্ডের আবেদন করেছেন মামলার তদন্ত কর্মকর্তা মতিঝিল থানার এসআই। আদালতের নথিতে রয়েছে, রফিকুল ইসলাম খান গত ২৫ আগস্ট থেকে সরকারের হেফাজতে ঢাকা কেন্দ্রীয় কারাগার এবং ঢাকা মহানগর ডিবি কার্যালয়ে আটক রয়েছেন। আদালতের কাছে এ নথি সংরক্ষিত থাকা সত্ত্বেও পুলিশের করা এ মিথ্যা মামলায় রফিকুল ইসলাম খানের জামিন নামঞ্জুর করে তাকে কারাগারে পাঠানো হয়েছে। পল্টন থানার একই ধরনের অন্য একটি মামলায় তিন দিন রিমান্ড শেষে রফিকুল ইসলাম খানকে ২১ ডিসেম্বর ঢাকা সিএমএম আদালতে হাজির করা হয়। রিমান্ড আবেদনে বলা হয়, রফিকুল ইসলাম খান গত ১৩ নভেম্বর সন্ধ্যায় নটর ডেম কলেজের সামনে নিজ দলের নেতাকর্মীদের নিয়ে সশরীরে হাজির হয়ে একটি যাত্রীবাহী বাস থেকে যাত্রীদের টেনেহিঁচড়ে নামিয়ে বাসটি ভাঙচুর করেন। একই সাথে আসামি নিজ হাতে গাড়িটিতে আগুন ধরিয়ে দেন। দাউ দাউ করে বাসটি জ্বলতে থাকলে মতিঝিল থানা থেকে ঘটনাস্খলে গিয়ে তাকে দৌড়ে পালিয়ে যেতে দেখা গেছে। পুলিশের চোখ ফাঁকি দিয়ে তিনি দীর্ঘ দিন পলাতক ছিলেন। গাড়ি ভাঙচুর ও আগুন দেয়ার সময় তার সাথে যারা ছিল তাদের নাম-ঠিকানা জানতে তাকে সাত দিন পুলিশের হেফাজতে রাখা প্রয়োজন।
রফিকের আইনজীবীরা আদালতে বলেন, মামলা দায়ের হয়েছে ১৩ নভেম্বর। ঘটনাও ঘটেছে ওই দিন। ফরোয়ার্ডিংয়ে বলা হয়েছে, গাড়ি ভাঙচুর ও পোড়ানোর ব্যাপারে তিনি স্বয়ং হাজির থেকে নেতৃত্ব দিয়েছেন। তিনি নিজ হাতে আগুনও দিয়েছেন। অথচ এ ঘটনার দুই মাস ১৮ দিন আগে ২৫ আগস্ট রফিককে গ্রেফতার করা হয়েছে। ওই দিন থেকে তিনি কারা ও ডিবি পুলিশের হেফাজতে রয়েছেন। কাজেই রিমান্ড তো দূরের কথা, এ মামলাই গ্রহণযোগ্য নয়।
আদালত আসামিপক্ষের আইনজীবীদের তাদের বক্তব্যের সপক্ষে তথ্যপ্রমাণ দিতে বলেন। আইনজীবীরা রফিকের গ্রেফতার হওয়ার পর আদালতের বিভিন্ন তারিখের আদেশ ও এর আগে রিমান্ডের কাগজপত্র পেশ করেন। তারা উচ্চ আদালতের একটি আদেশনামাও পেশ করেন। এতে উল্লেখ রয়েছে, রফিক গত ২৫ আগস্ট থেকে সরকারের হেফাজতে রয়েছেন। তথ্যপ্রমাণের ভিত্তিতে আসামিপক্ষের দাবিই সঠিক এবং পুলিশের মামলাটি মিথ্যা বলে প্রমাণিত হয়।
লজ্জার বিষয়, দলীয় তাগিদে পেশাগত নৈতিকতা জলাঞ্জলি দিয়ে মিথ্যাচারেও পিছপা হলেন না সরকারপক্ষীয় আইনজীবীরা। তারা আদালতকে বললেন, পুলিশ যে মামলা দিয়েছে তা সঠিক। আসামিকে রিমান্ড থেকে বাঁচানোর জন্য তার আইনজীবীরা আদালতে মিথ্যা তথ্য দিয়ে আদালতকে বিভ্রান্ত করছে। এক পর্যায়ে আদালতের বিচারক অতিরিক্ত মহানগর ম্যাজিস্ট্রেট মো: আলী হোসাইন এজলাস ছেড়ে খাস কামরায় চলে যান। খাস কামরায় বসেই তিনি রিমান্ড আবেদন নামঞ্জুর করেন। একই সাথে জামিনের আবেদনও নাকচ করে দিয়ে তাকে কারাগারে পাঠানোর আদেশ দেয়া হয়।
In a nutshell, a senior leader of political party Jamaat has been under arrest since 25th August. The whole country knows about it. As the cases against him are not that strong and to extend his jail term or to make him confess to something specific, government’s law men needed to bring him back to remand ( Questioning/ torture time). For this reason a request was made to Dhaka district CMM court to grant ten days remand and continued incarceration on the ground that this leader himself burnt buses on 13th November. Per police request, police officials themselves saw that this specific leader was setting fire to a bus and while the bus was set ablaze, he ran away. And since then he was hiding until 21st December when he was produced before this Choef Metropolitan Magistrate Court. While defendant’s lawyers informed the judge that the defendant in under arrest from 25th August and produced all the paper works in support of their claim, the government lawyers response was that the paper-works were false and fabricated. The honorable Judge, after being satisfied with government lawyers’ incredible argument, granted maximum ten days remand of the defendant and also approved continued incarceration. ( He even did not bother to ask why continued imprisonment need to be granted if he was indeed not in jail until now).
December 5, 2010
Chief Justice Khairul Haque’s rather sparse biography on the Supreme Court website tells us:
Obtained Bachelor of Laws from University of Dhaka and Barrister at-Law from Hon’ble Society of Lincoln’s Inn, London.
Enrolled as an Advocate of the District Court, the High Court Division and the Appellate Division of Bangladesh Supreme Court in the year 1970, 1976 and 1982 respectively.
Elevated as Additional Judge of the High Court Division on April, 1998 and appointed Judge of the same Division on April 2000.
Attended the International Law Conference held at Khathmandu, Nepal in the year 1994.
Khairul Haque is one of the most talked-about individuals in Bangladesh today. The frequency with which he appears in newspaper headlines is rather unusual for a senior judicial figure. He has decided a long list of important, controversial cases. Among other things, he has held that Ziaur Rahman was a usurper and tried to impose a theocracy on Bangladesh.
Khairul Haque’s written verdicts are marked by strong opinions and strident rhetoric. One reads them and feels that there is only of two options. The first possibility: one is in the presence of a true believer, someone who passionately believes in the combative prose set out in these opinions.
Or, the other option: that all these verdicts would have come out a different way if a different political party instead of BNP had been targeted.
How does one resolve the answer to this question? Some of his recent remarks provide a clue.
First, he told a gathering of judges:
বিচারকদের আল্লাহ ও মানুষের কাছে দায়বদ্ধ থাকতে হয়। “Judges have to be responsible to human beings and to Allah.
Then, a couple of days later, he told another gathering:
আল্লাহর দৃষ্টিশক্তির বাইরে যাওয়ার কোনো সুযোগ নেই। ন্যায়বিচার করলে সুসংবাদের কথা ইসলামে ও হাদিসে রয়েছে। ন্যায়বিচার করলে সাতটি আকবরি হজের সওয়াব পাওয়া যাবে। “There is no possibility of evading Allah’s gaze. Islam and the Hadith both mention the rewards for being good judges. Rendering a just verdict is the equivalent of performing seven Akbari Hajj.”
As human beings, we are all entitled to our individual belief systems. However, it is extremely difficult to stomach a sitting chief justice to tell his colleagues of the divine rewards that await them if they hand down impartial justice. What about the individuals of other religious faiths, or atheists/agnostics who are our judges? Do they also get Akbari Hajj?
Passing verdict on Ziaur Rahman’s insertion of Bismillah in the preamble and “complete faith in Allah” in the Constitution itself, Khairul Haque said that such additions were in contradiction to secularism, which was one of the fundamental pillars of the republic. Indeed, he said that this was a betrayal of our Liberation War itself. So, how secular was Khairul Haque feeling when he was exhorting his fellow judges about divine rewards and holy pilgrimage?
For making these changes, Khairul Haque accused Zia of turning Bangladesh into a theocracy. Now, I’ve never lived in a theocracy, so I don’t know what that’s like. However, I imagine it would involve the head of our judiciary exhorting his colleagues to administer justice for the sake of entry to heaven and warning them against comitting misconduct since none could escape Allah’s gaze.
Then, Khairul Haque told a meeting of women judges:
মহিলা জজদের উদ্দেশে প্রধান বিচারপতি খায়রুল হক বলেন, কখনও আবেগতাড়িত হওয়া যাবে না। আবেগে নয়, নিরপেক্ষ বিশ্লেষণ করে বিচার করতে হবে। “Khairul Haque told the female judges: ‘You must never become overtly emotional.’ The verdict must be based on independent analysis, not emotions.”
This one is just plain bizarre. Does Khairul Haque think that our female judges swoon and flutter and decide cases based upon their feelings, or whichever party is more good-looking, instead of the law? Does he, for example, think that Nazmun Ara Sultana, soon to-be the first female member of the Appellate Division, and potentially the first female Chief Justice of Bangladesh, composes her opinions based on feelings and emotions?
আইনজীবী নয়, বিচারপ্রার্থীর দিকে তাকাবেন “Concentrate on the plaintiff/defedant, not the lawyer involved.”
Where to start with this one? So judges should decide cases based on the identity of the plaintiff/defendant as opposed to the arguments put forth by the lawyers? Then why bother having lawyers in the first place? Perhaps we could just dispense with them and decide the cases based on our “feelings.”
This, coming from the same person, who dismissed Khaleda Zia’s appeal last week based on the conduct of her counsel, T. H. Khan. Take a moment and read this gem of an opinion. In it, Khairul Haque dismisses the case without going into the merits of the matter, and his opinion solely consists of Khaleda Zia’s lawyers: who they were, what they did, and why their prayer for adjournment, even an hour’s adjournment, was rejected. It’s a remarkable opinion.
Khairul Haque’s biography on the Supreme Court website tells us a lot of things. But it does not tell us whether he is serious about the values he talks about, or whether he is a hypocrite using them to advance his own agenda.
But now, I think we can figure it out ourselves.
আজ শুনানির শুরুতে এটর্নি জেনারেল মাহবুবে আলম বলেন, এ মামলায় ঘটনা বিকৃত করা হয়েছে, ষড়যন্ত্র হয়েছে কিন্তু বিচার হয়নি। তিনি পুনর্বিচার চান। এ পর্যায়ে আদালত বলেন, পুনর্বিচারের জন্য পাঠানো হলে এর আগে দেয়া দুটি রায় বাতিল হয়ে যাবে। আসামিদের সাজাও বাতিল হয়ে যাবে। কী পদক্ষেপ নেবেন তা আদালতের কাছে স্পষ্ট করেন।আদালত বলেন, এর নথিপত্র থাকলে আমাদের তা দেখান। এটর্নি জেনারেলের সঙ্গে কথা বলে এ বিষয়ে সিদ্ধান্ত নিয়ে আদালতকে জানান। আদালত মন্তব্য করেন, সন্তুষ্ট না হয়ে আমরা একটা অর্ডিনারি অর্ডার দিতে পারি না। আনিসুল হক বলেন, এ বিষয়ে ব্যক্তি বিশেষ নয়, পুরো জাতি অবহিত আছে। আদালত মন্তব্য করেন, কথা বললে হবে না তা আমাদের দেখান। আদালত এ বিষয়ে যৌথ উদ্যোগ প্রয়োজন বলে মন্তব্য করেন।(Source: Sheershanews).
What a wonderful example of not concentrating on the lawyers.
November 29, 2010
Published in BDnews24.com opinion Section on November 28th.
It’s not personal
The manner in which the leader of the opposition and former prime minister Khaleda Zia was evicted from her cantonment residence was outright shocking to most observers of Bangladesh politics. Not only the physical eviction itself, but the way the opposition leader was literally pushed out of her home of 38 years by an overwhelming government force, speaks volumes of its ‘autocratic’ mentality. The whole chain of events surrounding the eviction process was totally unforeseen in the history of democratic Bangladesh.
Notable in the chain of events were the mind-blowing fast tracking of judiciary, manipulation of hazy legal jargons, and ultimately bypassing of the highest judiciary to push forward with the government’s agenda to remove the opposition leader from her home. The media manipulation of the event was also unprecedented for a democratic government. Advancing on what the previous military-controlled regime did, from the day before the incident, the media was fed with concocted stories of Khaleda Zia leaving her home willingly. And on the day of the event and the day after, the naked dishonesty and partisanship of the defence department’s press wing, ISPR, was simultaneously a painful reminder of the demise of the armed forces as neutral public servants and the last nail in the coffin of an institutional balance of power under present government.