August 2010


Lady justice definitely is blind in Bangladesh. At least Judge Shamsunnahar of the Speedy Trial Tribunal-1 is.

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1. Bangladesh Supreme Court is imposing a new sort of blasphemy fear in our society. They just jailed an editor for six months and a reporter for a month and fined financial penalty to additional others for reporting some facts which the court even did not try to refute as false. Courts stand was like this, ” be it fact or truth, as long as we six men feel someone has written something which we consider harmful to our image, we shall punish him/ her. And there will be no appeal to this verdict because there is no court above us in this land”.

2. The report in vernacular Daily Amar Desh quoted a senior lawyer and ex justice, Mr TH Khan, as ” Chamber Judge Means Stay (of High Court Order)” as the title . The report chronicled the spate of cases where this chamber Judge Mojammel Hossain, acting on the plea of government’s lawyers, blindly stayed all high court orders without any exception. Cases he stayed included high court rules to cancel police remand ( which means police torture in Bangladesh) although there are previous high court ruling discouraging ‘Police Remand’. The person Daily Amardesh quoted was present in the court as a lawyer. Court did not bother asking him a question. The court did not bother discuss the facts whether indeed chamber judge means stay or not. The Supreme Court did not bother/ dare go into that detail because they knew all what Amar Desh published was true.

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Amar Desh published a report called চেম্বার মানেই সরকারপক্ষে স্টে (“Chamber Judge automatically means stay order in favor of the Government”) on April 21. The Supreme Court found this article to be so offensive that it found both Amar Desh’s editor Mahmudur Rahman and the staff reporter who wrote it, Waliullah Noman, in contempt of court. Mahmudur Rahman has been sentenced to six months of jail and fined Tk 100,000, in default of which he will have to serve one more month in jail. Noman has been sentenced to one month’s jail and fined Tk 10,000 in this connection. He would have to serve an additional seven days in prison if he fails to pay the fine.

There are several interesting points in this matter.

Let it be pointed out that Mahmudur Rahman did not go the usual route of hiring Barrister Rafiqul Huq and then making an unconditional apology. In fact, he did not apologize to the Court at all, something that has enraged Awami League hacks to no end. In standing up for what he believes in, Mahmudur Rahman followed in the tradition of Kazi Nazrul Islam and Gandhi when they spoke to the Court in their respective cases; like them, he has refused to back down in the face of state power.

In the Amar Desh article that gave rise to this whole matter, several inconsistencies had been pointed out: instances when the prosecution had presented false information to the court or acted in defiance of its prior order to get its way. During the trial, not a single of those allegations could be refuted, for the simple reason that they are all true. Thus, we are left at a dangerous state: speaking the truth is now a crime in Bangladesh. This may be tolerable in an imperial colony; it cannot persist in a free, democratic society.

There are two broad judicial models in the world. The British model, until 2009, was that the House of Lords was the supreme court. Thus, there was no ultimate difference between the three branches of government: the executive branch was also the elected leader of the executive branch and also the ultimate legislative branch. This model was just abolished last year, and UK got its own Supreme Court.

The American model, with the three different branches checking each other, is the one which Bangladesh seeks to emulate. The power of judicial review, in which, the judicial branch can also strike down a law passed by parliament, is an American concept. But, the price that the Court pays for meddling in public matters is that it must also bear public scrutiny. Thus, when Antonin Scalia goes duck-hunting with Dick Cheney, it is not contempt of court to question his partiality on cases directly related to the former vice-president. Or when Clarence Thomas’ wife becomes a prominent Conservative fund-raiser, it is not contempt of court to wonder how such activities will affect her husband’s decisions. And as for sentencing someone to jail for not referring to a judge as “The Honorable,” any such case would be laughed out of court.

Our Supreme Court cannot have it both ways. They cannot claim the power to meddle in political matters, and then, pretend they are above public scrutiny. The price of meddling in matters best left to politicians is that one must also be able to bear the scrutiny and abuse that is directed towards the politicians. Otherwise, best to retreat to the safer realms.

As Robert Jackson said of another Supreme Court, “We are not final because we are infallible, but we are infallible only because we are final.” The Supreme Court would do well to remember the limits on their power, and the perils of wading into political questions. Otherwise, they are inflicting grievous, perhaps irreparable harm in the very institution they are professing to protect.

Last time I was ready with my contents to write this post, it did not happen. My candidate lost the Detroit Mayoral election unexpectedly that time. But the opportunity has finally come this time. Yesterday a young energetic state senator Hansen Hashem Clarke defeated a long term incumbent in the Primary of US State Michigan’s overwhelmingly democratic 13th Congressional district in Detroit.

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Excerpts from late President Ziaur Rahman’s address to the BNP MPs of the second parliament. I have reproduced the absract on Bangladeshi nationalism from the presentation. When Bangladeshi nationalism is under attack by one Judge Khairul Haq, I believe no one else other than the founder of the nationalism itself could do a better job in defending it.



A draft English translation of the above is attempted below,

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Police beating garments workers

Photo: Courtesy of Sheershanews.com