We are fully aware that the chief justice has the authority to constitute and reconstitute benches of the High Court Division of the Supreme Court, and also change their jurisdiction as and when he deems it fit. Hence, he has acted within his powers when changing the jurisdiction of the bench of Justice Shah Abu Nayeem Mominur Rahman and Justice Shahidul Islam from hearing writ petitions to hearing first civil appeals. We must, however, point out that the change in jurisdiction of a bench that has recently been in the news for several landmark rulings and opinions that include granting bail in cases that have been brought under the Emergency Powers Rules, e.g. to Bangladesh Nationalist Party chairperson Khaleda Zia in the GATCO case, and declaring illegal the Anti-Corruption Commission's notice asking Awami League president Sheikh Hasina to submit her wealth statement has an ominous ring to it. Notably, the bench was set to hold the final hearing on a writ petition challenging the legality of the Election Commission's decision to defer national elections beyond 90 days of the dissolution of the previous parliament when its jurisdiction was changed.
It is this bench that had declared illegal the government sanction to try extortion case against detained former prime minister Sheikh Hasina under Emergency Power Rules (EPR) and quashed the trial proceedings. HC even granted bail to those convicted in the cases under EPR which was later to be reversed by the SC. It may not appear as mere coincidence that the order changing the jurisdiction came before the final hearing scheduled for March 19 on a writ petition challenging the validity of not holding national election in the '90-day stipulated time-period'
There is, in fact, a pattern to the recent happenings. The HC bench gave orders and verdicts which when they went to the Appellate Division would be either stayed or cancelled. There is no second opinion that reallocation of jurisdiction between benches may turn out to be an imperative necessity in that certain judges could be more competent and better suited to cope with particular tasks than others. And the CJ is not only within his powers to effect it but is also the best judge of what needs to be done. The question however relates to the timing of it -- on the heels of a particular set of circumstances as cited above.
But this is not without a precedent. The same judge Nayeem Mominur Rahman had show-caused the four-party alliance government as to why the appointment of Justice MA Aziz as Chief Election Commissioner will not be declared illegal since he retained the position of justice of the Appellate Division. Justice Nayeem was divested of the writ power soon thereafter. Incidentally, when Justice Ruhul Amin became the Chief Justice, Justice Nayeem got back his writ hearing power.
We want the judiciary to enjoy the highest moral standing and impeccable credibility. For, we strongly believe that democracy, justice and people's rights are best served when the judiciary enjoys the highest public esteem.
The point we are trying to drive at is after the separation of the judiciary from the executive, the concept of independence of the judiciary has been placed on an exalted pedestal. At a time like this, question should not arise in the public mind that there could even be any perceived interference in the affairs of the highest judiciary.
Change in jurisdiction of
a High Court bench
We must also point out that, in the past few months, on almost every occasion that a High Court bench granted bail to a suspect in a corruption case, the interim order was overturned by the Appellate Division. Here again, while we acknowledge that the Appellate Division has the power to overturn decisions and verdicts handed down by the High Court Division, there has been suspicion in the public mind as to whether there was any arm-twisting of the Appellate Division by powerful quarters behind the overturning of certain High Court orders, given the political nature of the cases in question. The denial of bail to certain individuals in cases that would be bailable under the ordinary laws of the land, especially after the High Court had deemed it fit to grant bail in those cases, has also contributed to raising eyebrows by many. Such a situation, if continues, may lead to an erosion of the people's faith in the Supreme Court that symbolises for most people the last bastion of justice.
What has undoubtedly also fuelled speculation regarding the change in jurisdiction of the bench comprising Justices Nayeem and Shahidul is the reported tea party that the president, Iajuddin Ahmed, has recently insisted to host for senior judges, apparently to ask some of them to resign. It appears as though the ones who did not take the president up on his offer have now been gently pushed aside.
We would like to believe that the changing of jurisdiction was a routine activity of the chief justice. However, in case there is some truth to the growing public perception of this change being related in any way to political engineering by the powers that be, we take this opportunity to remind the current administration of the recent controversies with regard to President Pervez Musharraf's ill-advised interference with the judiciary in Pakistan. Just as Musharraf's attempt at controlling the higher judiciary did not bear positive results for him, so would it not for our government, if that is indeed its objective.
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Sign the Petition : Release the Arrested University Teachers Immediately : An Appeal to the Caretaker Government of Bangladesh
http://www.mukto-mona.com/human_rights/university_teachers_arrest.htm
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Daily Star publishes an interview with Mukto-Mona
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MM site is blocked in Islamic countries such as UAE. Members of those theocratic states, kindly use any proxy (such as http://proxy.org/) to access mukto-mona.
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Mukto-Mona Celebrates 5th Anniversary
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Mukto-Mona Celebrates Earth Day:
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Kansat Uprising : A Special Page from Mukto-Mona
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MM Project : Grand assembly of local freedom fighters at Raumari
http://www.mukto-mona.com/project/Roumari/freedom_fighters_union300306.htm
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German Bangla Radio Interviews Mukto-Mona Members:
http://www.mukto-mona.com/Special_Event_/Darwin_day/german_radio/
Mukto-Mona Celebrates Darwin Day:
http://www.mukto-mona.com/Special_Event_/Darwin_day/index.htm
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