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.