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Saturday, October 9, 2010

[ALOCHONA] No peace for the government



No peace for the government

 

The government has  hard juggling act to keep up – amending the Constitution, trying the war criminals, implementing agreements with India, while dealing with anthrax, floods, crime and corruption all at the same time

by ANWAR PARVEZ HALIM

The government is not at peace. It is juggling several issues at once and it is not an easy job. There is the matter of amending the Constitution, trying the war criminals, bringing back the killers convicted in the Bangabandhu Murder Case, implementing the agreements signed with India and a host of other incomplete agendas. Then there have been the sudden floods, the onset of anthrax, food deficit, energy and fuel crisis. As if this was not enough, the leaders and workers of the ruling party are involved in uncontrolled extortion, violence, taking bribes for appointments and so on. Law and order has deteriorated. The government's image has taken a further blow with the ruling party's Nurunnabi Shawon's alleged involvement in the killing of Jubo League activist Ibrahim.

Prime Minister Sheikh Hasina from the outset has been issuing stern warnings regarding such issues, but who is listening. With work not be prioritized, administrative work is suffering. The government is paying attention to only sensitive issues and so even those responsible in the administration find themselves at a loss. There is a marked lack of coordination among the party, the government and in the administration. Despite the Prime Minister's specific directives, the ministers and important leaders of the party have been continuously issuing all sorts of irresponsible statements and speeches.

Amendment of the Constitution

After the annulment of the Fifth Amendment, the special committee formed for the amendment of the Constitution hasn't been able to go far. The preamble of the Constitution was supposed to have been finalized within September, but that hasn't happened. According to the court ruling, religion-based politics is supposed to be banned. However, many of the concerned persons are unwilling to make any amendment that will go against the religious sentiments of the people. Even the Prime Minister is against taking any such step. With the Seventh Amendment being cancelled, the committee is having to look into this matter too. They are at a complete loss as this means taking penal measures against the ruling alliance's ally Ershad for having taken over power unlawfully. The government may also bring in changes to the caretaker system which will most likely bring vehement protest from the opposition.

War crimes trial

The government wants to hurry up and complete the war crimes trial, but is having to adhere to the legal process. Jamaat and BNP contend that the government is using this trial simply to lash out at its opposition. The government is having to ensure that the trial maintains international tribunal standards. Sources say that there is a lack of logistic support and coordination where the trial is concerned. It does not look like the accused war criminals will be tried any time soon. So while they had taken up this issue with gusto, policy makers in the government are opting to go slow on this for the time being.

India puts on the pressure

While the government has finalized the matter of granting India transit facilities and use of the port, it is keeping the matter totally hazy so as not to provoke any opposition protest. It has opted to go slow on this issue too, but India is not having any of this. It is pressuring the government to come out in the clear about these agreements and implement them immediately.

After Pranab Mukherjee's visit to Bangladesh in August, Prime Minister Manmohan Singh held a meeting in Delhi with his cabinet members and secretaries. He instructed his administration to ensure that they extend utmost cooperation to Bangladesh to do away with all the haziness regarding the agreements and get cracking to their implementation with no further delay. It is learnt that Delhi has given Dhaka up till December to materialise the agreements. Manmohan Singh is scheduled to visit Dhaka in December this year or early next year. He wants to see some palpable action from Dhaka before that.

Then the issue of sending to Bangladeshi troops to Afghanistan suddenly cropped up-putting the sovernment in an uncomfortable situation.

According to sources within the ruling party, the opposition may take up a movement if the government goes for rapid implementation of the agreements. With other domestic issues and crises in the forefront, the situation may turn ugly. The government, thus, finds itself between a rock and a hard place. During a recent presidium meeting of Awami League, the leaders said it would be wise to be stern against any opposition movement, but the Prime Minister said they must practice caution.

The added angst of anthrax

On top of all its crises, the government is now having to deal with the outbreak of anthrax. And the onset of sudden floods.

Experts compare the economic losses of the anthrax outbreak to that of bird flu. It is not just the livestock business that is suffering, but the tanneries too. Butchers are anxious as innumerable others who are directly and indirectly connected with livestock.

By putting out a red alert concerning anthrax, things are likely to get worse. And with Qurbani Eid coming up, the crisis deepens. Experts feel the government is not taking adequate measures to contain the situation.

With heavy rains in India's Assam and Meghalaya, Bangladesh's Jamalpur, Kurigram, Gaibandha, Sirajganj, Rajbari, Faridpur, Maulvibazar, Shariatpur, Manikganj and Munshiganj districts are now inundated. Crops on 28,419.5 hectares of land in this region are under water. Yet Food Minister Dr. Abdur Razzak refuses to acknowledge that there are any floods.

The people of the area are suffering intensely. There is an acute shortage of drinking water and of fodder for the livestock, a spread of water-borne diseases, a dearth of employment for the poor and more. The farmers are at a loss. Government relief is not enough to meet the demands of the hungry flood victims. It is unusual to have floods in September and the government is having to focus much attention on this problem.

Food stocks fall

The Food Department is having problems with food grain collection this Boro season. It has a target to collect 12 lac tons of rice, but so far has only managed to collect five lac 41 thousand tons. Experts put this down to incompetence, inefficiency, irregularities and corruption from the policy makers down to the field level officials.

With the government's food stock falling by 50%, the government is under pressure to import. Food security is a serious cause of concern. The combined stock rice and wheat at the beginning of last month was 6 lac 533 metric tones. During the corresponding period last year it was 12 lac 57 thousand 964 metric tones. Over the past month and a half this hasn't improved. On the contrary, rice from this reserve was being sold in the open market during Ramadan.

In July and August this year, 2 lac 56 thousand metric tones of food grain was imported at a cost US$ 105,800,000. Yet in the corresponding period of the previous year, no import of food grain was needed at all. The central bank says that large volumes of food grain is being imported to ensure food security. This has put up import costs and put pressure on the foreign currency reserves. Remittances are down, there is no increase in export revenue.

Jubo League and Chhatra League go berserk

Jubo League, Chhatra League and greedy leaders of the ruling party are a bane for the government. Well wishers of the government maintain that the activities of these groups are running the sincere efforts of the Prime Minister. Even 21 months into power, the government has failed to rein these unruly quarters in. The government's failure in this regard is mysterious.

If corruption was the downfall of the alliance government, it looks like this government hasn't learnt a lesson. Government party people took crores of taka in bribes for the appointment 32 thousand primary school teachers. Now the 43 thousand who had paid bribes but did not get the jobs are trying to get their money back. They are paying bribes to get the original bribe returned. There is pressure on the administration to appoint party workers even if they don't have the merit. If this corruption is resisted, the government party hoodlums go berserk on a smashing spree, breaking everything in sight.

Jubo League and Chhatra League hoodlums disrupt the written exam being taken for appointment to the post of Office Assistant at the Pabna district Deputy Commissioner's office. Fifteen persons including the ADC were hurt in the attack. On September 19 the exam for appointment to 15 posts at Panchagarh Health Department was taken. As the chosen candidates of the local MP and Awami League leaders did not appear on the later list of those qualifying for the oral exam, the Civil Surgeon's office was smashed up. It is the same story all over the country. Syeda Sajeda Chowdhury, the Acting President of the party says, "Things will be fixed when the Prime Minister returns." Critics respond, "If the Prime Minister has to look after every detail personally, what are the ministers there for?"

Bangladesh fall back in Global Competitiveness

According to the Global Competitiveness Report (GCR) 2010-2011, Bangladesh ranks 107 among 139 countries. Last year its rank was 106. This report was released by the Switzerland-based World Economic Forum on September 9 this year. It was released in Bangladesh on September 16 by the Centre for Policy Dialogue (CPD).

On the same day, CPD released a report on the business competitiveness situation in Bangladesh. CPD's spokesperson told the media that the survey was conducted by talking to 90 big businessmen of Bangladesh, all with wealth over 10 crore each.

Businessmen say, there is still widespread corruption in Bangladesh. One has to pay bribes to get any work done. The government still awards work to their favoured ones. They also feel that in 2009, freedom of the press has been hit harder than in previous years.

 


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[ALOCHONA] Law and order



Law and order
 
 


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[ALOCHONA] Target borderland disputes



Hopes high as Dhaka, Delhi sit next month; disputed enclaves, lands may be exchanged as per 1974 treaty
 
 
 
Bangladesh and India are going to hold bilateral talks in a bid to permanently resolve all border related issues in New Delhi on November 10-11.

A highly placed source says the Awami League government is determined to resolve the decades-old disputes involving 3,000 acres of Bangladesh land inside India, 51 enclaves and 6.5 kilometres of un-demarcated border.

Similarly, India has around 3,500 acres of land and 111 enclaves adversely possessed inside Bangladesh.

Since assuming power the AL-led government has been persuading India to address these issues once and for all. Delhi has finally agreed to hold a meeting of the Joint Boundary Working Group (JBWG) of both the countries.

The last meeting of this group was held four years ago.

"We are confident this time there will be a breakthrough in India-Bangladesh relations through resolving all the border related issues," the source said, adding, "This time India also tilts towards resolving the issues as there is political will in both the governments to that end."

Officials say un-demarcated border and adversely possessed land frequently create troubles between border guards of the neighbouring countries. Besides, criminals often cross border and take shelter in the adversely possessed land and enclaves to escape arrest in their respective countries.

A top-ranked official engaged in the negotiations says an atmosphere of confidence has been created on both sides. "We are hopeful about an agreement on final settlement of border disputes by the end of this year."

Prime Minister Sheikh Hasina and her Indian counterpart Manmohan Singh during her visit to India on January 10-13 agreed to comprehensively address all outstanding border issues in line with the Land Boundary Agreement, 1974.

India has agreed to convene the JBWG meeting to take this process forward as per this agreement, the sources say.

"We have around half a dozen issues to be placed including adversely possessed land, exchange of enclaves and demarcating 6.5 kilometres of border," said a top government official.

Dr Kamal Uddin Ahmed, joint secretary of the Ministry of Home Affairs, will lead the Bangladesh delegation at the JBWG meet, while the Indian side will be headed by TS Trimurti, joint secretary of the external affairs ministry.

As per the Mujib-Indira border agreement of 1974, the disputed Bangladesh land inside India would become parts of India and vice versa.

Although Bangladesh ratified the Mujib-Indira agreement in 1974 India has yet to do it. Bangladesh expects that India would ratify the agreement soon to resolve the disputed 6.5 km un-demarcated border.

The land disputes were created during independence of India and Pakistan from the British colonial rule in 1947.

Dhaka and Delhi would also address the issues of 162 enclaves in both the countries. Some of these enclaves were created even before the British rule back in 1713.

Indian enclaves inside Bangladesh are situated in four districts -- Panchagarh, Lalmonirhat, Kurigram and Nilphamari -- while all of Bangladeshi enclaves fall in Indian Kuch Bihar district.

Sources say Bangladesh will also take up the Tin Bigha corridor issue vigorously and demand full-time opening of the corridor so that Bangladeshi people can come to mainland from there anytime.

Currently, India allows Bangladeshis to enter Dahagram-Angorpota through the 178/85-metre corridor every alternate hour in day time. India agreed to construct a flyover on the corridor and supply electricity for the Bangladeshi people.

Another issue to set up boundary pillars in 35.5 km stretch along Bangladesh-India border would also be discussed for settlement. People of both the countries are facing problems due to non-existence of pillars.

The area is settled but setting up of pillars and who would bear the cost have yet to be decided. As per existing norms, both the countries should set up the pillars, but Bangladesh may ask India to bear the cost.

The issue of demarcating 6.5 kilometres of un-demarcated border would dominate the agenda at the JBWG meet. Bangladesh and India share a long border of around 4,156 km.

Of the 6.5 un-demarcated border, 1.5 km is at Doykhata under Nilphamari district, 2 km at Muhurir Char in Feni and 3 km at Lathitila in Moulvibazar.

The JBWG will be followed by a series of meetings between the land, foreign and home ministries of the respective countries. A home secretary level meeting is likely to be held in Dhaka in December to ink the settlements of the border disputes.
  http://www.thedailystar.net/story.php?nid=157873

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[ALOCHONA] Democracy of un-public opinion



Democracy of un-public opinion

Or the court's contempt of public opinion
 
by Nurul Kabir
 

NO DOUBT the odds are against dissenters in any nation's judicial system. But human beings are not machines, and however powerful the pressure to conform, they sometimes are so moved by what they see as injustice that they dare to declare their independence.

   Howard Zinn, You Can't Be Neutral on a Moving Train: A personal history of our times, p 162

   We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.

   Thomas Jefferson, quoted in Enlightenment Reader, ed. Isaac Kramnick, p xxix.

   [S]uch is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing.

   Thomas Paine, Rights of Man, Part – II, p 159

   IN A democracy, truth and justice are mutually inclusive, so are journalism and judiciary, for, the former is expected to dig out and disseminate truth about life – social, political, economic, cultural, et cetera; and the latter dispense with justice to the people at large on the basis of pervasive truth about those existences of life, albeit within the framework of a set of democratic laws, constitutional provisions, principles and values. While democracy is primarily about people, and therefore, 'public opinion' is of paramount importance in a democratic political and judicial dispensation, the mass media that perpetually generates and sustains public debates on issues of public importance substantially contributes to making the government/s, the executive branch of the state in other words, accountable to the public — the essence of democratic governance. This is the reason why Edmund Burke called the media the fourth estate – the estate of the public.

   The state, based on whatever political ideology, is a coercive apparatus. But the judiciary is considered the 'least dangerous branch' of an otherwise repressive state machine, for it has neither the 'force' of the executive to coerce any citizen to do, or not to do, certain things, nor the 'will' of the legislature, which is often a 'tyranny of the majority' in a parliamentary democracy. It, therefore, has the least capacity to injure the constitutionally guaranteed rights of the people. Moreover, the judiciary, having inherent constitutional authority to review the actions of the two other official branches of the state, is free to safeguard the democratic interests of the public – conducting of public discussions by the mass media, generation and sustenance of public debates on the issues of public importance, and thus mobilisation of 'public opinion' for greater public good being a major public interest towards the further democratisation of society and the state.

   'Public opinion', as a concept integral to democratic governance, originated in Europe in the eighteenth century, while its growth and development has been linked directly with the emergence of political journalism in England. The word 'opinion' in English derived from the Latin opinio, which originally meant 'of the uncertain, not fully demonstrated judgment... in the sense of a judgment that lacks certainty, whose truth would still have to be proven…'1 It took a long time for the 'opinion' to evolve into 'public opinion', opinion publique, that the 'late eighteenth-century coinage that would refer to the critical reflections of a public competent to form its own judgments.'

   'Opinion' earned an extraordinary significance when Thomas Hobbes identified 'conscience', denoting both consciousness and conscience with it, while arguing that 'conscience' is 'nothing else but man's settled judgment and opinion.' It was, then, John Locke, who presented 'Law of Opinion' 'as a category of equal rank beside divine and state law'. Still, 'Law of opinion was by no means meant as law of public opinion; for opinion neither arose in public discussion…nor was it applied in some way to the laws of the state, because it was actually grounded in the "consent of private men who have not authority enough to make a law".'2 'Nonetheless, with Locke, "opinion", through its identification with "conscience", received a status which freed it from its polemically devalued association with prejudice.'

   However, the development of 'opinion' to 'public opinion' proceeded via 'public spirit', shows Habermas. Friedrich George Forster used 'public spirit' as equivalent of 'opinion publique', while Richard Steele 'had already transposed "public spirit" from the lofty and sacrificial attitude of human individuals to that objective entity of the Zeitgeist – a general opinion, which from that time on could scarcely be separated from the instrument of this opinion, the press.' John Boilingbroke, on the other hand, took up the word 'as a basis for connecting the political opposition with the "sense of the people".' He called the 'public spirit of the people, guided and enlightened by the opposition, a "Spirit of Liberty" against those in power.' He believed that 'the knowledge of the millions' is 'neither ridiculous nor despicable' because 'a right sentiment was alive in the mass of the population.' Boilingbroke asserted that 'if all men cannot reason, all men can feel,' and created 'political journalism' in England in the 1720s to direct 'public opinion', by way of making 'critical commentary' and providing 'public opposition', 'against the government part of the normal state of affairs.' Thus, 'the press was for the first time established as', says Habermas, 'a genuinely critical organ of a public engaged in critical political debate'. The 'fourth estate' was born.

   Edmund Burke, who later named this journalism as the fourth estate3, also argued, after the secession of the North American colonies from the United Kingdom, found 'public opinion' as 'vehicle and organ of the legislative omnipotence'. '[I]t is not only the invidious branch of taxation that will resisted', said Burke, 'but that no other given part the legislative right can be exercised without regard to the general opinion of those who are to be governed.'4 Burke observed that 'In free countries, there is often found more real public wisdom and sagacity in shops and manufactories than in the cabinets of princes in countries where none dares to have an opinion until he comes into them.' Burke's 'general opinion', parallel with 'public spirit' received the name 'public opinion'. The phrase entered the Oxford Dictionary in 1781.

   The expression 'public opinion' now refers to, as Habermas said in a different essay, 'the task of criticism and control which a public body of citizens informally – and, in periodic elections, formally as well – practices vis-à-vis the ruling structure organized in the form of state.'5

   Then emerged the democratic concept of the 'Rule of Public Opinion', to be materialised, albeit, within the framework of representative democracies. M Guizot, while discussing the 'origin and history of the constitutional state predicated on civil rights in the early nineteenth century, provided the formulation of the "rule of public opinion" as a system, "which nowhere admits the legitimacy of absolute power, to compel the whole body of citizens incessantly, and on every occasion, to seek after reason, justice, and truth, which should ever regulate actual power. The representative system does this, (1) by discussion, which compels existing powers to seek after truth in common; (2) by publicity, which places these powers when occupied in these search, under the eyes of the citizens; and (3) by the liberty of the press, which stimulates the citizens themselves to seek after the truth, and to tell it to power.'6

   However, the judiciary, even with its inherent power to review the functions and performances of the two other branches of the state, cannot contribute towards establishing such 'rule of public opinion', and thus ensure genuinely democratic justice to the public — by way of meaningfully backing the generation of reasoned public discussion, informed publicity among people and an independent press committed to dig out and disseminate truth but also stimulating of the citizens seek after truth themselves — until and unless the judiciary itself is politically independent from the executive capable of using 'coercive power' against and the legislature capable of arbitrarily imposing its 'will' on the public. On the other hand, a press truly committed to public causes cannot discharge its democratic responsibilities until and unless it enjoys the backing and protection of a democratic judiciary independent of the undue influences, direct or indirect, of the executive and the legislature. And here lies the political importance of supporting each other, the judiciary and the press, the third and the fourth estates that is, in their democratic zests for freedom — freedom from the undemocratic interference from the executive and/or the legislative branches of the state. Truth and justice, after all, are mutually inclusive.

   The Bangladeshi press in general, although divided on political and ideological grounds, with a section even on crude partisan line, has always supported the separation of powers – executive, legislative and judiciary – of the state. While the press's general understanding about the democratic importance of the separation between the executive and legislative branches of the state is relatively poor7, its democratic sensitivity towards the separation between the state's executive and the judiciary wings has hardly been inadequate. The press has never failed to rise to the occasion when it comes to the democratic freedom of the judiciary from the executive. The democratically oriented sections of the Bangladeshi press seem to have been quite aware of the importance of the separation of powers that C de Montesquieu stressed on in 1748.

   'When legislative power is united with executive power in a single person or in a single body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.

   'Nor is the liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judges would be the legislators. If it were joined to executive power, the judge could have the force of an oppressor.

   'All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of the individuals.'8

   However, Bangladesh's judiciary has in the past also backed and supported democratic freedom of the press and the people's 'right to know', at times, when the latter was exposed to the wrath of the other branches of the state, or the 'special' interests of society. In the Hamidul Huq Chowdhury v Bangladesh case, the Supreme Court declared in 1982, 'The law that singled out a printing establishment for taking over was violative of press freedom.'9 In another case, Saleemullah v State, the apex court even accepted criticism of the press against the higher judiciary in favour of the press's legitimate right to do so. In the judgement of the case, the Supreme Court observed in 1992, 'Freedom of press being recognised in our Constitution, a Court is to suffer criticism made against it, and only in exceptional cases of hard faith or ill motive will it resort to the law of contempt.'10

   But the apex court's role, and responsibility, as a protector of the democratic press as a vehicle of public information, as well as an instrument of reflecting public opinion on issues of public importance, seems to have been a story of distant past these days. The Supreme Court, in three sensational 'contempt of court' cases in a decade between 2000 and 2010, two against two Dhaka-based Bangla dailies and the other against a private citizen, has displayed utter disregard for the democratic 'freedom of the press'11 to disseminate solid information of public importance on the one hand, and stood in the ways of the exercise of the citizens' right to the 'freedom of thought and conscience' as well as the 'freedom of speech and expression' on the other.12

   However, before we seek out a democratic solution to the undemocratic behaviour of the court, it is important to take a critical look at the nature of the 'crime' that the accused in the 'contempt of court' cases in question have committed and the 'punishment' that the court has meted out to them, one by one. The cases, along with their judgements, would be discussed in ascending order. The cases taken up for discussion include Reajuddin Khan Reza and another v Mahmudur Rahman and others, Bangladesh v Asafuddowla and the state v Chief Editor, Manabjamin and others.

   The Amar Desh episode

   IN THE first case, Reajuddin Khan Reza and another v Mahmudur Rahman and others that is, the Supreme Court in August 2010 found Mahmudur Rahman, the acting editor of Amar Desh, a Bangla daily based in Dhaka, and some of his colleagues guilty of contempt of court and awarded them punishments ranging from six months' imprisonment to the editor to one month's imprisonment to a reporter of the newspaper.

   The 'crime'

   Amar Desh carried a news item in its April 21, 2010 issue, headlined as 'Chamber Bench Manei Sorkarer Pokhhe Stay (Chamber bench means stay order in favour of the government), showing a pattern of the judgements delivered over a certain period of time by Justice Mozammel Hossain, a chamber judge13 of the Appellate Division of the Supreme Court, in which the judge stayed all the orders of the High Court division either granting some relief or respite, including bails, to the accused, particularly belonging to the opposition political camp. Providing details of the proceedings of the appeals, the report showed that the chamber court's 'stays' on the High Court orders came following pleas by the attorney general's office for stay in every case. Notably, the attorney general and his associates in the office, appointed by the government, represent the executive in the courts of law.

   However, in a bid to substantiate the claim, Amar Desh cited quite a few concrete instances. In one of such instances, the newspaper reported that the chamber judge stayed, upon an appeal of the attorney general's office, the High Court order asking the government authorities concerned 'not to obstruct Mir Mohammad Nasir Uddin', a leader of the Bangladesh Nationalist Party and a former state minister for civil aviation in prime minister Khaleda Zia's cabinet between 2001 and 2006, 'to go to Saudi Arabia without due legal process.'

   The report said Mir Nasir secured the High Court order on April 18 as he moved the court after the immigration police prevented him from going abroad on April 15, citing verbally 'no clearance' from the 'higher authority'. 'Subsequently,' the news item said, 'the attorney general's office went to the chamber in question for a "stay" on the High Court order concerned on the plea that Mir Nasir was an ambassador to Saudi Arabia for six years during the last BNP-Jamaat rule and that he had developed diplomatic connection with the middle-eastern countries and that he, if allowed to go to Saudi Arabia, would propagate against the war crimes tribunal.'

   'In response,' the report said, 'Mir Nasir's lawyer told the chamber judge that the attorney general's office had provided the court with misinformation as regards the defendant's past, for Nasir was a minister, not an ambassador to Saudi Arabia, during the BNP rule between 2001 and 2006 in the first place, and that he was an ambassador to Saudi Arabia for a short while between February 1995 and June 1996 — the period when the ruling Awami League was agitating against the BNP government in collaboration with the Jamaat-e-Islami.'

   The chamber judge, the report said, 'without taking Mir Nasir's statement into cognisance, stayed the High Court order until April 25 and asked the attorney general to submit a regular leave to appeal within April 25.'

   The report further said 'the attorney general's office also did not point out [to the chamber judge] that High Court had asked the authorities concerned "not to prevent anyone from going abroad without due legal process".'

   In another instance, as Amar Desh reported, the chamber judge on October 29, 2009 stayed a High Court order, passed the day before, asking the police to interrogate imprisoned Lutfuzzaman Babar, a BNP leader and former state minister for home affairs in Khaleda Zia's cabinet at the jail gate, instead of taking him on police remand for the interrogation, which was granted earlier by a subordinate court. During the hearing of the case, as Amar Desh reported, Babar's lawyers had informed the chamber judge that Babar was very ill [suggesting that he may not be able to sustain the harsh treatment usually meted out to the accused while being interrogated on police remand].14 In response, the attorney general, Mehbubey Alam, advised Babar's lawyers, and that too in front of the chamber judge, to 'register a murder case, if and when Babar dies in the police custody' while on police remand. 'Still, the chamber judge stayed the High Court order and thus facilitated the former state minister's interrogation on remand,' the report said.

   According to Amar Desh report in question, the same thing happened in the case of another imprisoned BNP leader and former state minister of Khaleda's government, Abdus Salam Pintu. The High Court asked the police to interrogate him at jail gate, instead of taking him on police remand for interrogation. The chamber judge, again on the petition of the attorney general's office, stayed the High Court order in favour of the subordinate court's verdict, the report said.

   In a similar incident, as Amar Desh report cited, the chamber judge stayed a High Court order asking the police to interrogate a ward commissioner of the Dhaka City Corporation, Ariful Islam [also known as a BNP man], at jail gate, instead of doing so on police 'remand' granted by a magistrate's court. In its order, the High Court asked the police to shift Ariful from police custody to the custody of the jail authorities in 24 hours. The government did not comply with the High Court order, and subsequently the court reprimanded the attorney general's office for the non-compliance. In the mean time, the attorney general's office moved the court of the chamber judge for a stay on the High Court order and got the 'stay'.

   'Besides,' Amar Desh report said, 'the attorney general's office several times asked the jail authorities not to release detainees getting bail from the High Court and then went to the chamber judge for staying the High Court orders concerned. In this way, the chamber judge was made to 'stay' bail of more than three hundred people in recent times.'

   In the report, Amar Desh showed a clear pattern in the delivery of judgments by the court of the chamber judge, but it clearly admitted that the chamber judge 'has the jurisdiction to pass any order on such appeals' against High Court orders.

   The newsman who prepared the report sought a comment or observation of a senior advocate of the Supreme Court, TH Khan, who is also a former judge of the High Court, on the distinct pattern of the judgement delivery by the chamber judge – a usual journalistic practice, indeed. The senior advocate reportedly summed up his observation on the legal phenomenon by saying, 'It appears these days that staying of High Court orders has become the prime job of the court of the chamber judge, particularly when the "stay" is sought on behalf of the government.'15

   The headline of the news item — 'Chamber bench means stay order in favour of the government' – as it appears from the text of the report, was done after the Supreme Court advocate's observation on the controversial legal phenomenon.

   The punishment

   Two Supreme Court lawyers filed the contempt petition against the journalists associated with Amar Desh. Taking the petition into cognisance, the court issued a rule on June 2, asking Mahmudur Rahman and the four journalists concerned to explain why they should not be punished for contempt of court by publishing the report. The journalists explained that the news item was based on facts and that they had no intention to contemn the court. However, the court found the replies unsatisfactory, and started proceedings against the journalists. After a few days of hearing in the case, the court delivered its judgement on August 19.

   The Supreme Court sentenced the Amar Desh acting editor, Mahmudur Rahman, to six months in jail on charge of contempt of court. The full court of six Appellate Division judges, headed by Chief Justice Mohammad Fazlul Karim, also fined him Tk 1 lakh for publishing a report headlined 'Chamber bench means stay order in favour of the government' in the April 21 issue of the Bangla daily.16

   The court jailed Oliullah Noman, who prepared the report, for one month and fined him Tk 10,000. The court also fined the publisher of the daily, Hashmat Ali, Tk 10,000.

   The judgement also says that 'in case of failure to pay the fine', Mahmudur Rahman will have to serve one more month in jail and Hasmat and Oliullah seven days each.

   The daily's news editor Mujtahid Faruqui and deputy editor Syed Abdal Ahmed were acquitted of charges after they had offered unconditional apologies.

   Although Hashmat and Oliullah also offered apologies, the court convicted them as attorney general Mahbubey Alam and additional attorney general MK Rahman argued that 'they should not get mercy so that none could dare to tarnish the image and dignity of the highest court in future.'17

   Meanwhile, during the hearing of the case on August 18, Mahmudur Rahman, who defended himself on the court's permission, reportedly told the court that he was aware of the report and decided to print the report because it was 'accurate and objective', while he had 'no intention to contemn the court.'

   In response, the court said it 'would not examine whether the report was true or false, but only examine whether any contempt was committed in its presentation.'18

   Besides, the court told the accused, 'Instead of saying sorry to the court for the report, you have expressed your desire to contest the contempt case' and observed, 'your plea to defend yourself – the plea which was granted by the court – 'also constitutes a contempt'.19 The court, however, allowed him to defend himself.

   A few uninteresting questions

   BEFORE we examine what constitutes a contempt of court, and what does not, and whether the press report in question was really contemptuous or not, it is really intellectually taxing to suppress a few uninteresting questions: Why should it be a criminal offence — committing contempt of court is considered a criminal offence — on the part of an accused to defend him/herself before the court of law that s/he is not the guilty of a crime that s/he is accused of? Is it not quite reasonable for any accused to have a 'desire' to seek permission of the court to defend or clarify his/her position before the court himself/herself? Why should 'reason' be considered 'rebellion', and that too in the perceived citadel of justice? And, if the expression of desire by an accused in a contempt of court case to defend his/her position on his/her own really amounts to further contempt, why should the court allow him to do so?

   Besides, why the senior advocate of the Supreme Court, who actually made the controversial comment 'staying of High Court orders has become the prime job of the court of the chamber judge, particularly when the stay is sought on behalf of the government', was neither implicated in the contempt case nor punished? And, why was the attorney general, who in Mir Nasir's case misinformed the court of the chamber judge about the past of the defendant and also suppressed to the chamber court the fact that the High Court earlier asked the authorities concerned 'not to prevent anyone from going abroad without due legal process', meted out any punishment for his deliberate attempt to mislead the chamber court with misinformation and concealing facts from it? Is it not the solemn responsibility of the bar to help the bench, by way of providing correct information, unambiguous facts and genuine interpretation of law, to arrive at a 'just' decision about a case?

   And, more importantly, why on earth would a 'court of justice' punish the press on charge of contempt of court for a news item without examining 'whether the report was true or false'? The prime responsibility of the democratic press, after all, is to dig out truth about life – social, political, economic, cultural, et cetera – and disseminate truths among the people to enable them to form 'informed public opinion' about everything affecting their lives.

   To the last question, as to why is the court reluctant to examine whether a report is true or not, Professor Howard Zinn, the 'people's historian' of the United States, has an answer based on the empirical experiences that he gained from his active involvement in the peace movement during the Vietnam War.

   In the historic Milwaukee Fourteen case, fourteen US citizens — priests, nuns and laypeople — had entered into a draft board, taken thousands of its documents, and burned them in a symbolic protest against the war in 1968. They were arrested and charged with theft and arson.

   When the case went to the court, Howard Zinn was 'summoned by the defense', under the US law, as an 'expert witness'. to put the act in context, to tell the judge and jury that what these people had done was a part of a long tradition of civil disobedience in American history, that 'it was not an ordinary crime but a form of protest engaged in by conscientious citizens when traditional modes of expression are ineffective in righting some wrong.'

   An expert witness must first have his/her credentials approved by the court, and so the lawyer for Milwaukee Fourteen began by asking Zinn about his education and writings to 'qualify' him. The lawyer then began his direct examination by asking Zinn to explain the principles of civil disobedience.

   'I spoke of the Declaration of Independence and its insistence that when a government becomes destructive of basic human rights (the Declaration says "all men" are created equal, not just Americans, and therefore the basic human rights of Vietnamese peasants are also our concern) it is the right of the people to "alter or abolish" it. And if they can alter or abolish it, they can certainly commit civil disobedience against it, as these defendants have done. I told of Henry David Thoreau's decision to break the law in protest against our invasion of Mexico in 1846, and began to give a brief history of civil disobedience in the United States.

   'Judge Larsen had had enough. He pounded his gavel and said, "you can't discuss that. This is getting to the heart of the matter"!20

   'He was right,' says Howard Zinn, and adds, 'Courtrooms are not places where one is allowed to get to the heart of the matter.'

   Zinn describes on. 'The lawyer for the Milwaukee Fourteen went on to other questions. "Can you explain to the jury, Dr. Zinn, what is the difference between law and justice?" (A dangerous question; what could be getting more "to the heart of the matter"?) The prosecuting attorney objected to the question. The judge said, "Sustained." More questions about civil disobedience. More objections, all sustained.'

   'I was feeling frustrated. I turned to the judge … and asked, in a voice loud enough for everybody in the court to hear: Why can't I say something important? Why can't the jury hear something important?

   'The judge was angry. He said, "You are not permitted to speak out like that. If you do that once more I will have you put in jail for contempt of court."

   '…the judge told the jury, "This is a case about arson and theft."'21

   However, as Howard Zinn tells the world, the environment in the US courtrooms eventually changed. It changed with change of the political mood of the US public. 'As the Vietnam War went on, and public opinion against the war mounted, juries became more independent, and judges gave them more leeway in considering the broader issues of the war. The Camden Twenty-Eight destroyed draft records, too, but their trial, in 1973 in New Jersey, went quite differently.22

   What constitutes 'contempt'?

   THE constitution of Bangladesh has provided the country's Supreme Court, 'subject to law', with the power 'to make an order for the investigation of or punishment for any contempt of itself'.23 Bangladesh, which has emerged as an independent state through long struggles against British colonialism and Pakistani neo-colonialism, has so far not enacted any 'contempt of court' law. However, the ruling class/es of Bangladesh, which is still suffering from colonial hangover of various kinds, has retained a contempt of court law made by the British rulers in the 1920s. The law, the Contempt of Courts Act, 1926, does not provide the definition of 'contempt'. It only defines the jurisdiction of the High Court, as regards taking into cognisance contempt against its subordinate courts. The law says that the 'High Court Division shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself.'24 But the High Court 'shall not take cognisance of contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Penal Code.'25 The Bangladesh Penal Code, 1860, however, provides a kind of definition of 'contempt' and the punishment/s for committing the contempt, although they relate only to the lower judiciary. The penal code says: 'Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand Taka or with both.'26

   However, the phrase 'contempt of court' has been in use across the world for centuries and the history of committing this offence dates back to the formulation of law and setting up of courts centuries ago. In the course of the development of jurisprudence, various scholars and institutions have provided various definitions. Besides, the judges of different countries have made important observations while dealing with contempt of court cases.

   The legal lexicon of the Lectric Law Library defines 'contempt of court' as 'any wilful disobedience to, or disregard of, a Court order or any misconduct in the presence of a Court; action that interferes with a judge's ability to administer justice or that insults the dignity of the Court; punishable by fine or imprisonment or both.'27

   The Lectric Law Library's dictionary finds two types of the 'contempt of court': civil and criminal. 'Criminal contempt occurs when the contemnor actually interferes with the ability of the court to function properly — for example, by yelling at the judge. This is also called direct contempt because it occurs directly in front of the judge,' says the lexicon. 'Civil contempt occurs', the lexicon explains, 'when the contemnor wilfully disobeys a court order. This is also called indirect contempt because it occurs outside the judge's immediate realm and evidence must be presented to the judge to prove the contempt.'

   'To speak generally, contempt of Court may be said to be constituted by any conduct that tends to bring the authority and the administration of the law into disrespect or disregard or to interfere with, or prejudice parties, litigants, their witnesses during the litigation,' says Oswald.28 As said earlier, Bangladesh does not have a comprehensive contempt of court law, providing any specific definition of the crime, especially when it comes to the superior courts, even after the Appellate Division's urge, made in the judgement of Saleem Ullah v the State case in 1992, to 'recast' the outdated law to 'cope with the present-day society'.29

   In India, the Contempt of Courts Act, 1971 classifies 'scandalising' or 'lowering' the authority of any court as 'criminal contempt'. However, the Supreme Court of India in a contempt of court case has specifically observed in 1978 that criticising a judge, even if fierce, by the press would not constitute contempt, if the criticism helps forward public interest. The judge concerned, Justice Krishna VR Iyer, a former chief justice of India, also pleaded 'free play within responsible limits' for the press, 'even when the focus of its critical attention is the Court, including the highest Court.'

   'The court must harmonise the constitutional values of free criticism and the need for a fearless curial process and its presiding functionary, the judge. To criticise a judge fairly, albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it,' Justice Ire wrote in the judgment.30 'The Court must avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice…The former is not contempt but the latter is, although the overlapping spaces abound… The Fourth Estate should be given free play within responsible limits even when the focus of its critical attention is the Court, including the highest Court,' the judgment added.

   Earlier, in 1974, Justice Krishna Iyer, the Indian judge of global repute, observed, 'In a contempt case, the key word is "justice", not "judge"; the keynote thought is unobstructed public justice, not the self-defence of a judge; the corner-stone of the contempt law is the accommodation of two constitutional values — the right of free speech and the right to independent justice. Contempt is no cover for a guilty judge to get away with it but a shield against attacks on public justice.'31

   Punishment and its legal objective

   FOR both the categories of contempt, there are provisions for fine and/or imprisonment for the contemnor. But the Lectric Law Library's Lexicon observes, 'The fine or jailing is meant to coerce the contemnor into obeying the court, not to punish him, and the contemnor will be released from jail just as soon as he complies with the court order.'

   In some states, as in Pennsylvania, the power to punish for contempt is restricted to offences committed by the officers of the court, or in its presence, or in disobedience of its mandates, orders, or rules; but no one is guilty of contempt for any publication made or act done out of court which is not in violation of such lawful rules or orders, or disobedience of its process.

   Judging the judgment

   THE content of the report published by Amar Desh was based on information that was never contested by any quarters during the proceedings of the trial. The newspaper, by way of publishing the objective news item, did neither 'obstruct' or 'interfere' with the administration of justice', nor did it 'scandalise' or 'lower' the authority of the court as an institution, nor even did it 'criticise', let alone 'fiercely', the judge in question. The newspaper, truthfully citing a series of judgements passed by the chamber judge in question, rather showed a pattern in which quite a few politicians belonging to the opposition political camp were either denied bail granted earlier by the High Court or deprived of being interrogated by the police in accordance with the directives issued to executive by the judiciary.

   Moreover, the report pointed out clearly that the attorney general's office, the functionaries of which are appointed by the political managers of the executive, was the one which was active behind the legal manoeuvres against the perceived political rivals. Under this circumstance, it is not absolutely impossible for a judge to be misled by the partisan functionaries of the attorney general's office in the business of dispensation of justice, and therefore, the Appellate Division had the scope to take the newspaper report in question as a cautionary warning against the possible miscarriage of justice. The newspaper report, after all, did not fail to inform its readers that 'the court of the chamber judge has the legal jurisdiction to pass any judgement on any appeals submitted to it against any High Court verdict.' The judge in question, therefore, had also no reason to feel libelled against by the report.

   But even if the judge does, there was hardly any reason for the Appellate Division to find the report contemptuous, because the court is obligated not to confuse between, as Justice Krisna Iyer pointed out, 'personal protection of a libelled judge and prevention of obstruction of public justice', because 'the former is not contempt but the latter is'.

   However, the court found the report contemptuous and punished, by imprisonment and fine, the acting editor, the publisher and the reporter of the newspaper for the 'crime'. But the question arises whether the punishment meted out to the newspaper men was legally justified or not.

   While under the penal code, a person found guilty of contempt of court can be 'punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand Takas or with both,'32 under the Contempt of Courts Act, 'a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine, which may extend to two thousand Taka or with both.'33

   The 'proviso' of the section of the Contempt of Courts Act, 1926, then, underlines unambiguously that 'the High Court Division shall not impose a sentence in excess of that specified in this section for any contempt either in respect of itself or of a Court subordinate to it.'

   But, alas, the country's highest court punished the acting editor with 'six months of imprisonment and fine of Tk 1 lakh, the reporter with one month of imprisonment and fine of Tk 10,000 and the publisher with fine of Tk 10,000.

   As regards the amount of financial penalties to the newsmen in question, the Supreme Court has clearly violated the Contempt of Courts Act, 1926 by imposing sentences 'in excess' of what has specifically been mentioned in the law, which is not more than Tk 2,000!

   There is a very important jurisprudential issue involved here, in the court's violation of the law in its dispensation of justice. The violation of the legal provision by the judiciary, and determination of the degree of punishment for a certain crime at its will, which is the sole jurisdiction of the legislature, is nothing but encroachment of power of one organ of the state by another and, therefore, absolutely inconsistent with the democratic principle of the separation of power.

   Mahmudur Rahman, indeed, expected justice. And why not? 'Liberty and equality are dreams: Justice is something which even the slave, even the prisoner at the bar, expects.'34 But immediately after the announcement of the court verdict, the prime accused in the case, Mahmudur Rahman, has reportedly remarked that he 'did not get justice'. Who on earth would claim, in the right mind, that he did?

   If the court's purpose of punishing 'contempt' was to 'shield public justice against undue attacks', it has been defeated. Because, the Amar Desh report clearly cautioned the court authorities, and the public alike, that there was a visible pattern in the justice delivery process of the chamber judge, by which the leaders of an opposition party were being adversely affected, understandably in the hope that the chief justice, or the judicial commission, would look, if not investigate, into the phenomenon for the sake of fair justice. But the result was opposite to what was expected in a truly democratic dispensation: the editor of the paper, who is widely known as a member of the 'think tank' of the opposition Bangladesh Nationalist Party, himself was punished for the news item, and that too by the bench headed by the chief justice of the apex court. The incident provided the people at large with the room for speculation that the higher judiciary is prejudiced against a particular political party. This is simply dangerous in terms of maintaining dignity of the court in the eyes of the public.

   And if the purpose of the court was to gag a critical press, at the instigation of the functionaries of the executive in the judiciary's arena, the goal has largely been achieved: The verdict has been able to instil a significant amount of fear into the media, particularly as regards the coverage of and comment on the legal issues.

   In May 2002, when a High Court bench in a contempt of court case awarded prison terms to the chief editor of Manabjamin, another Dhaka based Bangla daily, for publishing an allegorical report on the gross misconduct of a judge, editors of as many as fifteen national dailies jointly protested against the undemocratic verdict the day after. In a joint statement the editors observed that the judgment was 'an unprecedented interference in the freedom of the press.'35 'We are respectful to the court and believe in full freedom of the judiciary. We are also committed to protect the freedom of the press and the people's right to know. The role of the court and the newspaper is identical in many ways,' said the statement. People from various other walks of life also expressed their sentiments against the judgement and in favour of the paper. But this time around, when Amar Desh was punished unduly, there came no such organised protest, let alone resistance, from the press and the public. This is, indeed, dangerous for the growth of a vibrant public sphere, which is integral to the democratisation of society and the state.

   Asafuddowla's 'crime' and 'punishment'

   A RETIRED civil servant and former editor, M Asafuddowla, raised a few questions at a seminar at the National Press Club on August 6. 'Why would people have to look for a neutral court for hearing their petitions? Why can we not talk about the bribery of the judges, and why must we face contempt of court charge for saying so?' Asafuddowla is reported to have asked when addressing the seminar.36

   A Supreme Court lawyer, Sheikh Ali Ahmed, filed a contempt petition against him the next day, quoting the Somokal report headlined 'Asafuddowla questions the court's neutrality'. Subsequently, a High Court bench, comprising AHM Shamshuddin Chowdhury and Justice Sheikh Md Zakir Hossain, issued a contempt rule on August 9, asking Asafuddowla to appear in the court on August 19.

   Asafuddowla complied, and appeared before the court on August 19 in his person. The court 'rebuked Asafuddowla…and kept him standing in the court for 90 minutes.'37

   His lawyers pleaded for 'pardon' for the accused. But without paying heed to the plea, Justice Shamshuddin reportedly remarked: 'He (Asafuddowla) was a district judge for only three years, but he speaks considering himself a pundit in law. There must be a limit to audacity. We can't show any compassion to him as it is the solemn duty of the court to protect dignity of the judiciary.'38

   One wonders if it is the monopoly of the High Court judges to develop punditry over the law. Does it not remain the fact that it is not just lawyers and judges, rather philosophers, political scientists and polemists of various disciplines have contributed, and are still contributing, towards the shaping of modern jurisprudence through contemplative writings, polemical discourses and social debates? Besides, it is the politicians, as people's representatives, and none else, not even the extraordinary judges, who formulate laws and, that too, keeping in mind the public debates nurtured by, and channelled through, various intellectual media, particularly including the press. If one is forced to accept that the knowledge about laws is a monopoly of the serving judges, s/he has to reject the universally accepted intellectual notion that every human being is inherently capable of – if willing, serious and provided with the opportunity – mastering any branch of knowledge. In this regard, it is worth recollecting the dialogue between two lords, in which Boldmind told Medroso: 'It's up to you to learn to think. …He who knows no geometry can learn it. Every man can educate himself.'39

   Besides, the court is supposed to presume that the accused is aware of the law of the land; otherwise, why should the courts assert, and that too quite frequently, that 'ignorance about a law is not an excuse for acting against the law'? Why, then, reacting to a citizen's perceived knowledge of law?

   However, at a stage of the proceedings of the case, Asafuddowla's lawyers, many, and most of them senior advocates of the Supreme Court, urged the court to allow him, the octogenarian accused, to take a seat in the courtroom. The request was turned down. The judge, instead, said: 'He is now an accused in a contempt case, a criminal offence, for which he deserved no compassion from the court.'40 The court, true to its stance, literally refused 'any compassion' to Asafuddowla, and he was kept standing until the end of the hearing of the case for the day.

   Eventually, on August 23, the High Court exonerated Asafuddowla from the contempt charge, but only after he had offered an 'unqualified apology' for his comments about the judiciary and submitted an 'undertaking' that he 'would not make any offensive statements in future in relation to the judiciary.' Still, the court warned him that he would be 'punished and sent to jail', if he made any 'derogatory remarks' about the judiciary in the days to come.41

    A humiliated, and, who knows, scared, Asafuddowla, has become socially silent in the public sphere since then — an Asafuddowla who had been extremely vocal against the military-controlled illegal regime between 2007 and 2009 for democracy and rule of law, for democratic civil and political rights of the citizens, and, of course, for the democratic freedom of thought, conscience and expression. Silencing a dissenting voice in an otherwise undemocratic society is, indeed, a political sin against the 'public sphere' that confronts the inherent tyrannical tendencies of the state with a view to establishing people's democratic control over the repressive machine.

   Notably, a former chief justice of Bangladesh, Mostafa Kamal, once said publicly, 'We need to openly discuss the fact that the judicial system of Bangladesh has been exposed to corruption. It is not right that we cannot discuss the issue in the fear of contempt of court.'42 But no bench of the High Court has served any rule, let alone summon, him on charge of contempt. Asafuddowla made similar, if not the same, comments on the same subject, but he was. Room for questioning the court's neutrality as regards treating certain people, if not certain political parties, as more/less equal than others, therefore, still remains — despite the fact that the Constitution of the People's Republic of Bangladesh unequivocally assures that 'all citizens are equal before law and are entitled to equal protection of law.'43

   As for the allegation of 'partisan' bias against the courts, society at large would continue to discuss the problem, and the democratically oriented individuals would continue to lament, as did Asafuddowla, 'why people would have to look for a neutral court for hearing their petitions,' until and unless the existing system of recruitment of judges are done away with. Under the present system, it is virtually the executive that appoints the judges of the High Court, while the political mangers of the executive do not have the reputation of being committed to choosing the best candidates in terms of political neutrality, intellectual competence and moral qualities, not even the best ones from among the candidates having inclinations to their own political parties. The crude partisan loyalty remains a major qualification for the candidates to be chosen by the political bosses of the government/s in the recruitment of judges for quite some time now. There are definitely morally upright, intellectually competent and politically non-partisan judges in the apex court, but it is equally undeniable that there are 'rotten apples' in the basket, too. The court can suppress the expression of such opinion by punishing citizens on charge of contempt, and thus be contemptuous to public opinion, but it cannot stop the citizens from thinking and discussing the visible phenomenon in their living rooms – even in bazaars. What is, therefore, important is to change the recruitment system, and establish anew a good image of the judiciary. That some judges also find it important to change the present recruitment system for the sake of justice is evident in, of all the judgements, in the controversial judgement of the Manabjamin case. Explaining the adverse impact of appointing judges 'not on merit but because of favouritism or other ulterior considerations,' the judgement says, 'the Executive cannot be allowed to enjoy the absolute primacy in the matter of appointment of judges as "royal privilege"…The method of judicial appointments has a great deal of bearing on the quality of the judiciary and its composition. The method of appointment must ensure that the most qualified candidates secure appointments.'44

   The Manabjamin affair

   In the third case in question, the State v Chief Editor of the daily Manabjamin and others that is, the High Court, in May 2002, awarded imprisonment and fine to the chief editor, editor and publisher of the daily on charge of 'contempt of court'.

   The 'crime'

   The Manabjamin published an allegorical story, headlined Ekti Rajakiya Kelenkarir Khashra (the outline of a royal scandal), in September 2000 that said that a 'deposed, corrupt king' bribed a 'Quazi' of the country's 'apex' Darbar to get a favourable verdict. The 'king' decided to 'buy' the court verdict in a bid to outsmart the rulers, who, to punish the king for his departure from an unholy alliance with them, wanted to 'finish' his political career by 'expediting' the 'judicial proceedings of graft cases related to construction of a palatial house against him.' The same rulers got the corrupt king out of Kalapani (exile) and 'slowed down' the judicial process against him on the latter's assurance of continued political support to the former. The ruling circle became vindictive when the 'king' started publicly opposing the rulers in violation of the previous agreement. But the 'king's' move to secure a favourable verdict almost succeeded, as the Quazis had already written the judgement, awarding the 'king' a jail term for a small period in order to save his political career.

   But, eventually the Quazis could not sustain their decision — thanks to the immediate interference by the 'top Darbar of the ruling circle', the Manabjamin's allegorical story continued. It said that after getting information regarding the 'king's' move to secure a favourable judgement and his possible success to get it done, the furious 'ruling king' asked the vizier concerned to take immediate steps to rescind the decision of the Quazis. Accordingly, the vizier 'summoned' the two Quazis trying the case to his residence 'at the dead of night' and threatened them with dire consequences if their judgement went in favour the 'fallen king' – the ruler's friend-turned-foe in real politic of the day. Eventually, the 'Quazis' changed their decision in line with the dictates of the vizier.45

   Along with the story Manabjamin, in a front-page editorial note, claimed that the allegorical write-up was published 'on the basis of facts, not on the basis of just a fairytale.' Besides, the tabloid printed a sidebar in the main story that said, 'an audiocassette containing conversations between a judge and a top level politician' has recently become a topic of 'sensational discussions in the court premises.'

   Subsequently, the readers, especially the politically informed readers of the day, hardly took time to identify the 'deposed, corrupt king' as HM Ershad, a 'Quazi' of the 'apex' Darbar as a judge of the High Court, the case relating to a 'palatial house' as the Janata Tower corruption case, the 'top Darbar' of the ruling circle as the erstwhile Prime Minister Sheikh Hasina's office and the 'vizier' of the ministry concerned as the law minister of Sheikh Hasina's cabinet, Abdul Matin Khasru. It was, however, easier for the readers to identify the real persons behind the allegorical characters because, of the two-member High Court bench, one was Justice Latifur Rahman who sentenced Ershad to five years' imprisonment and payment of Tk 5,48,70,800 in fine in the much talked about Janata Tower corruption case in August 2000.

   However, it was a retired High Court judge, Justice Naimuddin Ahmed, who publicly decoded, or interpreted the allegorical story in real terms, by commenting at a city seminar on October 30 that it was unfortunate that the High Court 'is not taking any step though a judge has reportedly received bribe for allegedly delivering a favourable verdict in a case.'46 Justice Ahmed's grievances were published in three other Bangla dailies — Janakantha, Ittefaq and Sangbad.

   Eventually, the High Court issued 'contempt of court' rules, on a petition submitted by the attorney general of the time, against HM Ershad and the chief editor, editor, publisher, printer and the writer of the news item of Manabjamin on November 8, 2000. The court also served similar notices to Justice Naimuddin Ahmed as well as three other dailies that published Justice Ahmed's remarks.

   The punishment

   AFTER months of hearing, the High Court, comprising Justice Syed Amirul Islam and Justice Mirza Hossain Haider, passed the judgement on May 20, 2002, convicting the chief editor of Manabjamin, Matiur Rahman Chowdhury, and the daily's editor and publisher, Mahbuba Chowdhury, of 'contempt of court'. The court sentenced the chief editor to one month's imprisonment and Tk 2,000 in fine, in default of which 15 more days in prison. The court sentenced the editor to pay Tk 2,000 in fine or serve two days in prison.47

   'Having regard to the gravity of the contumacacious article, the recklessness with which it has been written, false statement contained in the article, … we do not think justice will be met by awarding him (Matiur Rahman Chowdhury) a token punishment in the form of fine,' said the judgement. 'He must also undergo imprisonment.'48 The High Court convicted the Chowdhuris for 'scandalising the court'.

   The High Court found Ershad, who earlier 'admitted' to the court that 'he had indeed talked over phone with the learned judge concerned', guilty on the charge of contempt of court 'for trying to pervert the courses of the justice by influencing a judge.' The High Court awarded Ershad a six-month jail term as well as a fine of Tk 2,000, in default of which he was 10 serve 15 more days in prison.49

   As regards Justice Naimuddin Ahmed, the court observed that he had made 'loose comment about the judiciary', but took 'a lenient view' of the comments and exonerated him from the contempt charge on the ground that 'Justice Ahmed was a brilliant and a meritorious judge of this Court,' who 'made immense contribution to the judiciary and is still' rendering valuable service to the judiciary as a prominent member of the Law Commission. The court 'let him off with a caution that in future he should be more careful in making any comment/remark about the judiciary.'50

   The court also acquitted Janakantha, Ittefaq and Sangbad in recognition of the newspapers' respective positive roles that they played in the past for national interest and democracy — not on the ground that the dailies, in the present case, had either printed, or reproduced, what they found to be true. The judgement also issued a warning to the dailies, asking them to behave in the future.

   However, as for the guilty judge, Justice Latifur Rahman, who was clearly found to have talked over telephone with the accused Ershad before, during and after the process of hearing of the corruption case, the High Court did not charge him for contempt. It only observed that 'the conduct of the judge may be considered dishonest and the Supreme Judicial Council could have probed it.'51

   The High Court finally directed all the 'convict contemnors' to surrender before the deputy commissioner of Dhaka within two months from the date of the delivery of the verdict. 'In default, the Marshal of the Court is directed to take the contemnors … into custody and confine them to Dhaka Central jail to serve the sentence as imposed,' said the judgement.52

   Manabjamin, however, went to the Appellate division of the Supreme Court against the High Court judgement, which is still pending hearing.

   Judging the judgement, again

   THE court has awarded the punishment to Manabjamin, which made public a highly unethical clandestine communication between a former head of government accused in a corruption case and a High Court judge trying the case.

   In the process of investigation, it was unquestionably proved that the newspaper's claim of the communication between the politician and the judge, and their effort to influence the natural course of justice, was based on facts. Subsequently, the court rightly awarded punishment to Ershad for trying to secure a favourable judgement by influencing the judge outside the court. But the court, surprisingly, spared the judge, who was a party to the clandestine communication for which the politician was awarded punishment. Ironically, the newspaper, which, by disclosing the unethical link between the politician and the judge, helped the apex court to prevent a miscarriage of justice, also received punishment for 'contempt of court'!

   Ironically still, the same High Court bench that punished Manabjamin after presenting society with a very important information regarding public justice, said, in the same judgement, that it is the 'professional responsibility' of the journalists 'to inform the people about the truth and all sorts of incidents that take place here and abroad. They are under the obligation of publishing news items even at the cost of their lives and very often they do so.'

   However, that Manabjamin did not have any intention to contemn the court was evident in an editorial note, printed alongside the controversial story, which said the paper used the allegorical form for obvious reasons, i.e. not to contemn the court. Even then, the court did not spare Manabjamin, reportedly because the daily had 'scandalised', or in other words, 'offended' the higher judiciary by claiming in the allegorical story that the judge in question, Justice Latifur Rahman, received bribe from Ershad. But the court was eventually convinced that the judge did not receive any money, although his 'conduct may be considered dishonest'. In that case, one is free to claim that Manabjamin is guilty of 'exaggerating' the judge's offence – nothing more. The question which is more important here is that whether or not the exaggeration, intentional or unintentional, served the purpose of drawing attention of the top judicial authorities, and the people at large, to a highly unethical correspondence between the judge of the High Court and the alleged high-profile criminal facing corruption charge in his court, and thus enabling the judicial authorities concerned to address the issue before an injustice of severe nature could take place. It did. Notably, in August 2001, the Madras High Court of India observed in the judgement in a libel suit against the Junior Vikatan, a Tamil biweekly, that the freedom of the press, which is included in the fundamental right to the freedom of speech and expression, 'gives (the press) a privilege …even to exaggerate or play down to a small extent, provided it is only in the interest in the public at large.'53 Manabjamin's 'exaggeration' has definitely served public interest, because the High Court is the last resort for the public to seek justice, and the daily did exactly what a democratically oriented press is expected to do in this regard: Guarding the public institutions from indulgence in political, economic and judicial injustices. But the court, instead of taking action against the guilty judge, reacted adversely to Manabjamin. The allegation is that the newspaper has 'lowered the image' of the court 'in the public eye'.

   Justice Krishna Iyer is worth quoting, again. 'Vicious criticism of personal and administrative acts of judges may indirectly mar their image and weaken the confidence of the public in the judiciary but the countervailing good, not merely of free speech but also of greater faith generated by exposure to the actinic light of bona fide, even if marginally overzealous, criticism cannot be overlooked. Justice is no cloistered virtue.'54 Still in the present case, Manabjamin did not criticise the judges at all, let alone indulge in 'vicious criticism'. The paper, as said earlier, only drew the attention of the higher Judiciary, and the people as well, to a deviation by a 'guilty judge' by way of publishing a news item based on facts. The High Court's judgement awarding punishment to Manabjamin, therefore, amounts to infringement on the media's democratic right to dig out truth, and responsibility to disseminate information of public interest to the people. The court's action against the daily also amounts to the infringement of a fundamentally important right of the people — the 'right to know'. The highest court of a country is not expected to do such disservices to the public cause in a 'democratic' political dispensation.

   However, the most disappointing part of the judgement in question is the one that keeps silent about the punishment of the guilty judge. The court reportedly observed that 'the conduct of the judge may be considered dishonest and the Supreme Judicial Council could have probed it.' The language of the High Court observation suggests — 'may be considered dishonest' — that it is still not sure about the judge's dishonesty.

   As we have seen earlier, 'insulting the dignity of a Court', 'showing disregard' for or interfering with the Court 'during litigation', lowering the image of the court in the public eye, scandalising the court, et cetera constitute the crime called contempt of court. By any of these standards, or by all these standards, Justice Rahman has committed the crime.

   There is no doubt that the judge in question responded, more than once, to phone calls from HM Ershad, the accused in the corruption case, who 'tried to influence the process of justice in his favour.' Ershad himself admitted in the court that he had had conversations with the judge regarding the corruption case concerned. On the other hand, the judge did not deny the allegation in a private discussion with the chief justice. Neither did he lodge a defamation suit against Manabjamin. Instead, he resigned the day after Manabjamin produced, on November 22, 2000, following a court order, the audiotape containing the unethical conversation before the High Court bench. The court identified the voices of HM Ershad and Justice Latifur Rahman. (As a judge, he was perhaps aware of the fact that 'it is not defamation', under section 499 of the Bangladesh Penal Code, 'to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published'.)

   Is it not unbecoming of a judge, and that too a High Court judge, to have clandestine conversations with an accused in an under-trial criminal case? Does it not 'lower' the 'dignity and prestige' of the superior court to the accused when it was secret, and to the people when public?

   Justice Rahman, according to the content of the taped conversation, which appeared in the press the day after the judgement was passed, even tried to influence his senior judge in the bench in favour of Ershad — the accused.

   Claiming himself to be 'a disciple' of the Jatiya Party supremo, Ershad, the judge even reported to the general-turned-politician that he (the judge) 'persuaded the senior judge' of the two-member bench 'not to award him (Ershad) prison term for more than two years for the sake of saving' his (Ershad's) 'political career'.55 Is it not an attempt to 'interfere with' the litigation process, which amounts to contempt of court?

   Explaining his failure to influence the senior judge in Ershad's favour, Justice Rahman told the accused that the senior judge could not do the favour due to 'upper level (executive) intervention'.

   On top of it all, the tone and tenor of the taped conversation suggest, almost clearly, that Justice Rahman, a self-proclaimed 'disciple' of Ershad, was eager to 'save' the Jatiya Party leader's 'political career', and therefore, 'persuaded the senior judge' not to award the politician a jail term in the criminal case that would make him ineligible for contesting the next parliamentary polls. But he eventually could not do Ershad the favour, due to his senior's reluctance on the one hand and the executive's interference on the other. Now, the clearly pronounced intention to favour an accused is clearly inconsistent with a judge's 'oath' that constitutionally obliges him/her to administer justice 'without fear and favour'.56

   What constitutes contempt of court by a judge, if not the acts of interfering with a co-judge's jurisdiction during litigation, scandalising the court, lowering its dignity and prestige before the public eye, and on top of those all, attempting to favour an accused of a criminal offence by violating of the oath of the judges? There is no intelligible answer in this regard from the High Court at least in the judgement delivered in the Manabjamin case. Ironically, the High Court bench in question concluded the judgement by citing from Krishna Iyre, who once observed: 'If judges decay, the contempt power will not save them and so the other side of the coin is that judges …must be above suspicion.'

   It is true that it is the jurisdiction of the Supreme Judicial Council to probe into the allegation of contempt of court by a High Court judge. But in the present case, Justice Latifur Rahman was no longer a judge after he had quit his job in the middle of the trial of the contempt of court case.

   The High Court judgement, awarding punishment to the Manabjamin editors and sparing the guilty judge, visibly provoked public criticism that found expression in the pages of the newspaper in question and its other contemporaries.

   In this regard, it is definitely worth remembering another 'observation' made by Justice Iyre. The power of contempt, 'intended to preserve the faith of the public in public justice, will not be used to provoke public hostility … as the palladia of our freedoms, the Supreme Courts and the High Courts, must vigilantly protect free speech even against judicial umbrage — a delicate and sacred duty whose discharge demands tolerance and detachment of a high order.'57

   

   Dangerous patterns

   OF THE three judgements, two—one on Amar Desh and the other on Manabjamin—have assaulted the democratic freedom of the press to dig out 'truth' about a very important branch of the state, the judiciary that is, and disseminate the 'truth' to the public, to which the state is said to belong. The third, on Asafuddowla, has assaulted the citizens' democratic right to the freedom of thought and conscience, speech and expression. Clearly, the judiciary, which is said to be the 'least dangerous' branch of the state, has dangerously stood in the way of the growth of the critically engaged 'public opinion' — one of the most important components of democracy.

   The judgements provide another pattern: judges and lawyers are often spared by the court, while journalists are not, for committing contempt, if there is any, at all. In the Amar Desh case, the attorney general, Mahbubey Alam, and advocate TH Khan, in Asafuddowla's case former chief justice Mostafa Kamal, and in the Manabjamin case Justice Latifur Rahman and Naimuddin Ahmed are glaring examples. The message that the pattern sends across is that the 'legal establishment' is more equal than the media outlets in terms of getting legal treatment from the apex court, which is perceived to be the strongest citadel of justice.

   Quinine will cure fever, who will cure quinine?

   ONCE exposed to malaria and advised by his physician to take quinine, Dijendranath, a Bengali philosopher, refused to take the prescribed medicine. The philosopher's contention was: 'Quinine will cure the fever, indeed, but who will cure quinine?'58

   While the courts in general are supposed to ensure justice equally to all the citizens, irrespective of their colour, gender, ethnic and religious identity, the apex court has an additional responsibility to strengthen 'rule of law' by constantly keeping its judicial eye on the functioning of the executive and the legislature, so that the latter cannot encroach upon the constitutionally guaranteed fundamental rights of the citizens. Besides, the apex court has the responsibility to uphold the constitution, as the 'solemn expression of the will of the people'59 under all circumstances.

   But, what is the cure, if and when the apex court abandons its constitutional responsibility?

   In the verdict of a contempt of court case, Mohammad Saidur Rahman (representing the Bangladesh Supreme Court Bar Association) v Shah Azizur Rahman MP, the High Court observed, 'It is the duty of all citizens of the country to maintain and uphold the prestige and dignity of the Supreme Court, which is the guardian of the Constitution and laws and administers even-handed justice to all who feel aggrieved by any action of anyone including the executive government and seeks relief from it. Duty of the journalists as conscious and conversant citizens is more than the ordinary citizens to uphold the prestige and dignity of the Supreme Court.'60

   No citizen, including the journalists, would have reason to fundamentally disagree with what has been preached in the judgement. But, what is the cure, if and when the 'guardian of the Constitution' fails 'to maintain and uphold the prestige and dignity' of its own?

   This is an obvious question as the higher Judiciary has more than once failed to 'maintain and uphold the prestige and dignity' of its own in the past, particularly during the politically crucial times of the country, although it is the guardian's constitutional obligation not to do so.

   The country's chief justice and the judges of both the Appellate and High Court Divisions of the Supreme Court are bound by oath, under Article 148 of the constitution, to 'preserve, protect and defend the Constitution and the laws of Bangladesh'. They are also constitutionally obliged, under the oath, to 'do right to all manner of people according to law, without fear or favour, affection or ill-will.'

    But when 'President' Khondker Moshtaque Ahmed subordinated the entire judiciary to Martial Law, by means of promulgating the Martial Law Regulations on August 20, 1975, the Supreme Court clearly failed to 'preserve, protect and defend the Constitution and the laws of Bangladesh.' The MLR snatched away the Supreme Court's constitutional authority to review the judgements of the subordinate courts by declaring that 'no order, judgment, decision or sentence of a Martial Law Court shall be called in question in any manner whatsoever in or before any Court, including the Supreme Court.'

   The Supreme Court accepted the subordination of the constitution to 'martial law' without any protest. While delivering judgement in the infamous Halima Khatun v Bangladesh case, Justice Fazle Mumin first maintained that 'the Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic and if any other law is inconsistent with this Constitution that other law shall to the extent of inconsistency be void.'61

   But the court made a U-turn immediately. 'Ironically enough this article, though it still exists, must be taken to have lost some of its importance and efficacy. In view of clauses … of the (martial law) proclamation, the supremacy of the Constitution as declared in that Article is no longer unqualified. In spite of this Article, no constitutional provisions can claim to be sacrosanct and immutable.'62

   In the Sultan Ahmed v Chief Election Commissioner case, Justice Shahabuddin Ahmed, who later became the chief justice and performed the responsibility of the head of an interim government in 1990, declared: '…it is as clear as anything that Martial Law is the supreme law of the land and that though the Constitution has not been abrogated, it has been made subordinate to Martial Law and that the Constitution will continue in force subject to Martial Law, that is to say, it will have effect so long as it does not come in conflict with Martial Law.'63

   Again, in the State v Haji Jainal Abedin case, the Appellate Division observed, '… it leaves no room for doubt that the Constitution, though not abrogated, was reduced to a position subordinate to the (Martial Law) Proclamation, inasmuch as the unamended and unsuspended constitutional provisions were kept in force and allowed to continue subject to the Proclamation and Martial Law Regulations or Orders; and the Constitution was amended from time to time by issuing Proclamations … The moment the country is put under Martial Law the above noted constitutional provision, along with other civil laws of the country, lost its superior position…'64

   These are not the only instances where the Supreme Court sacrificed — with or without fear, best known to the judges themselves — its constitutionally guaranteed superiority over any other courts of the country.

   But in all such cases, the Supreme Court judges failed either to realise, or to show the courage of upholding the fact that the constitution, 'as the solemn expression of the will of the people', is 'the supreme law of the Republic', which cannot be made subordinate by the so-called Martial Law, itself unconstitutional, promulgated by an illegitimate government. Notably, 'government is not a trade which any man or body of men has a right to set up and exercise for his own emolument, but is altogether a trust, in right of those by whom that trust is delegated, and by whom it is always resumable.'65

   One can, therefore, safely conclude that the Supreme Court, by accepting the so-called superiority of martial law, did not 'do right to all manner of people according to law', for which they were bound by oath.

   The people have defeated generals and their guns at the cost of lives and blood so many times, but the Supreme Court judges, oath-bound to uphold constitutionalism, have hardly shown the courage of opposing the extra-constitutional regimes, maybe because they did not want to risk their jobs. Instead, two chief justices – Justice Abu Sadat Mohammad Sayem and Justice Ahsan Uddin Ahmed Chowdhury – presided over two martial law regimes in the 1970s and 1980s. And what is more dangerous is that a head of the judiciary, Justice Shahabuddin Ahmed, while discharging the responsibility of the top boss of the executive for an interim period before returning to the judicial service, developed a soft corner for a notorious general whose military regime was defeated by the people.

   Justice Shahabuddin Ahmed, who became president as a consensus candidate in December 1990, following General Ershad's ouster from the office amidst agitations jointly by all the mainstream political parties of the country, was 'ready to grant clemency to Ershad', 'provided' that the deposed general, an accused in a large number of corruption cases, 'apologised to the people'. 'In this regard, I sent a proposal to Ershad in 1991,' admitted Justice Ahmed while talking to the editors of some national dailies and weeklies on October 24, 2001.66

   The ground the former chief justice put forward for considering clemency for Ershad was entirely unconstitutional. 'After all, the man (Ershad), good or bad, was the country's president for nine years. It does not look nice that he has to frequently visit the court,' Justice Ahmed is quoted to have said to the editors.67

   The constitution definitely provides the president, under Article 49, with the 'power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority', but it does not allow him to use the power to grant mercy to an accused before the trial, and that too, on the basis of the social/political status of the accused. The constitution, rather, stands in the way of such a discriminatory attitude, when it says, 'All citizens are equal before the law and are entitled to equal protection of the law.'68

   Justice Shahabuddin's consideration for granting clemency to HM Ershad, a general who forcibly seized state power from an elected president in 1982, was also devoid of the basic principles of the rule of law. 'As conquest may be called a Foreign Usurpation, so Usurpation is a kind of Domestic Conquest, with this difference, that a Usurper can never have Right on his side, it being no Usurpation but where one is got into the possession of what another has Right to. This, so far as it is Usurpation, is a change only of persons, but not of the forms and Rules of the Government: For if the Usurper extends his power beyond, what of Right belonged to the lawful Princes, or Governors of the Commonwealth, 'tis Tyranny added to Usurpation.'69 So, Ershad was guilty of both the crimes — tyranny and usurpation in the first place. And later he was accused, and subsequently convicted, in various corruption cases. It was, therefore, unbecoming of Justice Shahabuddin, who went back to the apex court as chief justice, after conducting the general elections in 1991, even to think of pardoning a creature like Ershad. As the unrepentant general refused to beg public apology, Justice Shahabuddin did not have to grant him mercy.

   True, the Appellate Division and the High Court Division of the Supreme Court have recently, in February and August 2010, with a civilian government in power, declared absolutely unconstitutional the martial law regimes ratified earlier in 1979 and 1986 and observed that the 'perpetrators of such illegalities' should be suitably punished'. But they condoned certain actions of the illegal regimes, 'which tend to advance or promote the welfare of the people',70 jurisprudentially leaving room for claims that it would be okay if the martial-law-wallas are to do good jobs all along, promoting 'welfare of the people'.

   However, while the apex court has the record of endorsing provisions of martial law and subordination of its own self to illegitimate martial law courts, the people, particularly the democratically oriented sections of society, has the glorious record of defying martial law regimes, and fighting back military juntas in the streets, again and again, and re-installing elected civilian governments, again, again and again, in the expectations of truly democratising society and the state.

   Election is a key component of democracy, but mere handover of power from one government to another through elections is not democracy. Democracy is all about public interests and people's pervasive sovereignty over the state — all branches and sub-branches of the state, including the judiciary. In developing democracies like Bangladesh, people can assert their sovereignty, particularly between two elections, in the 'public sphere', by way of asserting 'public opinion'. In that case, democratic freedom of the media, and the people's democratic right to the freedom of thought, speech and expression, is of vital importance. If the democratically oriented media's duty to dig out truth about social, political and economic lives of the citizens is obstructed, responsibility to disseminate public information interfered with and privilege of public criticism curtailed, the result would be disastrous for democracy, especially in a developing democracy, where most people are not aware of their rights — social, political and economic.

    Therefore, if and when a country's highest court stands in the way of media's duty to disseminate truth and make critical commentaries about the performances of various branches of the state, including the judiciary, one can safely conclude that the judiciary has started ceasing to be the vehicle of democratic justice, for, as asserted earlier, truth and justice are mutually inclusive. And if and when the highest court starts failing to deliver justice to the people, one can easily conclude that the judiciary has started subscribing to the idea of a 'democracy of unpublic opinion', for democracy is primarily about 'public opinion' of the public interests.

   Under such circumstances, with no other court of law to move against the verdicts of the apex court, the democratically oriented sections of the press aspiring for consolidation of the constitutionally guaranteed 'freedoms' of the citizens, let alone expanding them further, may be left with no option other than making intellectual efforts to mobilise 'public opinion' for truly democratising the judiciary, and make it accountable to the truly democratic values of freedom and justice based on truth. After all, 'it is only through public opinion that you can acquire any power to promote the good; …only through public opinion that the cause of the people – for so long given up as hopeless – has prevailed; … before public opinion all authorities become silent, all prejudices disappear, all particular interests are effaced.'71

   Last words

   THERE is no doubt that the 'modern' 'liberal democracies' in the West are no longer interested, in the present age of imperialist globalisation, in any critical reflections of the public on the issues of public importance in a vibrant 'public sphere' — the democratic idea that the eighteenth century protagonists of democracy had envisioned and practised. The so-called democratic states conveniently 'presupposes as the principle of its own truth the sovereignty of the people', and thus 'lacks the substance of its own truth' — the sovereignty of the 'public opinion'. The 'modern' 'liberal press', supported and nurtured by corporate capital and 'modern democracies', is also not interested in engaging the public in critical debates on issues of public interests, let alone sustaining such debates. In other words, the dominating sections of the 'modern' press mostly produce and re-produce the 'truth' of the state as the 'public truth', manufacture consents in favour of the social, political and cultural values which are, in the last instance, detrimental to the genuine interests of the people at large, and thus functions as an 'ideological apparatus' of the repressive 'political state', based primarily on violence, to socially legitimise the latter's democracy of 'unpublic opinion'.

   In developing democracies like Bangladesh, the mainstream press generally tends to do the same job, and there is no denying that at times a section of the press is even seen to be playing the role of Alsatians to protect the crude political and material interests of the owning companies of the media outlets vis-à-vis public interests. Still, a significant section of the media actors are reluctant to follow the footsteps of the West's corporate media, while there is a trend of political resistance alive in society against various local manifestations of imperialist globalisation. And here coincides the interests of the democratically oriented section of the media actors and the social forces of democratic resistance against the imperialist globalisation. Both the groups need a vibrant 'public sphere' to advance the democratic causes of the people. Understandably, the struggle for democratic right to the unhindered freedom of the press as well as the people's right to the freedom of expression, the fight against the imperialist globalisation and the struggle for a judiciary committed to the 'democracy of public opinion' is virtually one and indivisible.

   End notes

   1. Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, The MIT Press, Cambridge, Massachusetts, 1991, p 89

   2. ibid, p 91

   3. 'Yonder sits the Fourth Estate', Burke said, pointing his fingers out towards the press gallery of the House of Commons. Mohit Moitra, A History of Indian Journalism, National Book Agency, Calcutta, First Edition, Second Reprint, 1993, p 4

   4. Quoted in Jürgen Habermas, op-cit, p 94

   5. Jurgen Habermas, ibid, p 73

   6. M Guizot, History of the Origin of Representative Government in Europe, trans. AR Scoble, London, 1852, p 264. Also quoted in Jürgen Habermas, op-cit, p 101

   7. The Constitution of the People's Republic of Bangladesh still does not bar the same person to head both of the executive and the legislature at the same time, while the press has not been seen to be significantly vocal against the prevalent phenomenon of the same person holding the posts of prime minister, head of the executive that is, and the post of the leader of the house, the head of the legislature in other words — a political idea absolutely devoid of fundamental democratic principle of the separation of powers. In a democratic dispensation, the executive is supposed to remain accountable to the legislature, or parliament in other words; but the scope for the same person holding the top positions of both the wings at the same time is bound to stand in the way of ensuring democratic accountability of the executive to the legislature, because the system leaves room for compromising over the conflict of interests of the two vital institutions of the state.

   8. Montesquieu: The Spirit of the Laws, ed. Anne M Cohler, Basia C Miller and Harold S Stone, Cambridge University Press, Cambridge, Fourteenth Printing, 2009, p 157

   9. DLR 34(1982)190

   10. DLR 44(1992)309

   11. Article 39, the Constitution of People's Republic of Bangladesh, The Ministry of Law and Justice, Government of the People's Republic of Bangladesh, Dhaka, 2000, p 11

   12. ibid

   13. The chamber judge, or the chamber court, is the first step, under The Supreme Court of Bangladesh (Appellate Division) Rules, 1988, towards moving the Appellate Division of the Supreme Court against any judgement delivered by its High Court Division. One needs to appeal to the court of the chamber judge seeking permission to submit a regular petition to the Appellate Division, while the chamber judge enjoys the jurisdiction to pass any order, positive or negative, on such appeals.

   14. It is common knowledge in Bangladesh that the police — and at times members of the so-called joint interrogation cell comprising officers from police, Rapid Action Battalion and various security intelligence agencies — adopt various corporal means to extract 'confessions' of crimes from the accused while interrogating them on police remand. Under the circumstance, the High Court, on a writ petition filed in 1998, issued in 2003 a set of directives to the police to be followed while dealing with crime suspects, one of which says that the 'Investigating Officer shall interrogate the accused, if necessary for the purpose of investigation, in rooms specially made for the purpose with glass wall and grill in one side, within the view but not within hearing of a close relation or lawyer of the accused. [Bangladesh Legal Aid and Services Trust (BLAST) and others v Bangladesh and others, 55 DLR (2003) 363]. But the police are yet to comply with the High Court directive in question.

   15. (daily) Amar Desh, Dhaka, April 21, 2010

   16. (daily) New Age, Dhaka, August 20, 2010

   17. ibid

   18. ibid, August 19, 2010

   19. ibid

   20. Howard Zinn, You Can't Be Neutral on a Moving Train: A personal history of our times, Beacon Press, Boston, p 152

   21. ibid, p 153

   22. ibid, p 154

   23. Article 108 of the Constitution of the People's Republic of Bangladesh, ibid, p 45

   24. Section 2(2) of the Contempt of Courts Act, 1926

   25. Section 2(3) of the Contempt of Courts Act, 1926

   26. Section 228 of the Bangladesh Penal Code, 1860

   27. The Lectric Law Library's Legal Lexicon on Contempt of Court at http://www.lectlaw.com/def/c118.htm

   28.Quoted by Dr Shirin S Chowdhury in The Least Dangerous Branch and the Power of Judicial Review Impact on the Development of Fundamental Human Rights, Human Rights in Bangladesh, 2000, ed. Hameeda Hossain, Ain O Shalish Kendra, Dhaka, 2001

   29. DLR 44 (AD) 309

   30. AIR (1978) SC 727

   31. AIR (1974) SC 374

   32. Section 228 of the Bangladesh Penal Code, 1860

   33. Section 3 of the Contempt of Courts Act, 1926

   34. JM Thompson, The French Revolution, Basil Blackwell, Oxford, reprint 1985, p 131

   35. (daily) The Independent, Dhaka, May 22, 2002

   36. (daily) Somokal, Dhaka, August 7, 2010

   37. (daily) New Age, Dhaka, August 20, 2010

   38. ibid

   39.Francois-Marie Arouet Voltaire, Freedom of thought, Philosophical Dictionary, ed. Theodore Besterman, Penguin Books, London, Reprinted in 2004, p 280

   40. (daily) New Age, Dhaka, August 20, 2010

   41. ibid, August 24, 2010

   42. (daily) Prothom Alo, Dhaka, October 19, 2002

   43. Article 27, the Constitution of the People's Republic of Bangladesh, op-cit, p 8

   44. DLR 57( 2005) 359

   45. (daily) Manabjamin, Dhaka, September 16, 2000.

   46. (daily) Janakantha, Dhaka, October 31, 2000.

   47. DLR 57(2005) 359

   48. ibid

   49. ibid

   50. ibid.

   51. (daily) The Daily Star, Dhaka, May 22, 2002

   52. DLR 57 (2005) 493

   53. (fortnightly) Frontline, Chennai, India, April 26, 2002

   54. AIR (1974) SC 374

   55. (daily) Jugantar, Dhaka, May 21, 2002

   56. Third Schedule, Article 148 (6) of the Constitution of the People's Republic of Bangladesh, ibid, pp 74-75

   57. Op-cit

   58. 'Quinine jor sarabe bote, kintu quinine sarabe ke', in Syed Mujtoba Ali, Deshe-Bideshe (first volume), Collected Works of Syed Mujtoba Ali, Volume 9,Mitra and Ghosh Publishers, Kolkata, first edition, seventh print, 1407 Bangla calendar, p 67

   59. Article 7(2) of the Constitution of the People's Republic of Bangladesh, ibid, p 3

   60. DLR 52(2000) 159

   61. DLR 30 (1978) SC 207

   62. ibid

   63. DLR 30 (1978) 291

   64. DLR 30 (1978) 371

   65. Thomas Paine, Rights Of Man, Penguin Books USA Inc, 1985, p 189.

   66. (weekly) Jai Jai Din, October 30, 2001

   67. ibid

   68. Article 27 of the Constitution of the People's Republic of Bangladesh, ibid, p 8.

   69. John Locke, Two Treaties of Government, ed. Peter Laslett, Mentor Book, New York, 1965, p 445

   70. (daily) New Age, Dhaka, February 3, 2010 and New Age, Dhaka, August 27, 2010.

   71. Nicolas Bergasse (1750–1832), who after the French Revolution delivered a report to the national assembly on the organisation of justice, while in a discussion in the national assembly about the constitutional significance of opinion publique in 1791. Quoted in Jürgen Habermas, op-cit, p 99



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