Politics in Court
By Dr Imtiaz Omer, Australia
Alexander Bickel, a noted constitutional scholar in the USA, explained
that the US Supreme Court was "The Least Dangerous Branch". Speaking
of the role of the Supreme Court of Bangladesh, a friend who is an
informed and keen observer of political events in Bangladesh and the
growing practice of the highest judiciary in colluding with the
executive political authorities in Bangladesh today and playing the
second fiddle in legitimizing the political decisions and policies of
the current Awami League Government of Sheikh Hasina, commented that
it seems that the Bangladesh judiciary is fast becoming the most
farcical institution. There is much merit in his observation.
The politics of the current government is the politics of hate. Indeed
the November 18, 2010 issue of The Economist used this title in
reviewing the politics of Bangladesh as "Politics of hate",
sub-titled, "An ancient vendetta continues to eat away at public
life". The article begins thus:
More than two years after the army aborted a dismal interregnum and
released from jail the leaders of the country's two rival political
dynasties, the politics of hate and attrition grind away in
Bangladesh. The thanks go mainly to the personal vendetta of the Prime
Minister, Shiekh Hasina, one of the two leaders, against the other,
Khaleda Zia.
What this report did not highlight is the role of the Supreme Court of
Bangladesh in legitimizing and putting into effect the instances of
political vendetta of the current prime minister and her government.
To achieve the program of reprisals, the first action was the
reconstitution of the Supreme Court by inclusion of pliant judges.
Since then the task of legalizing the reprisal program was easy. In
succession, the Supreme Court hastily affirmed the death sentences of
five army personnel for the murder of Sheikh Mujibur Rahman, members
of his family, (could have been planned earlier), a personal case for
the current prime minister.
The judgment is replete with emotive language, references to
precedents, prior judgments, not only of the Bangladesh Supreme Court
but also of the Indian Supreme Court, quite a few that had nothing to
do with the specific circumstances of the case, but dealing with
procedural matters. That the indicated persons in that case may have
been guilty of the charges and the sentences were therefore deserved
is not the question. The legal reasoning of the court is open to
serious question. Additionally, the court's collusion in the hasty
implementation of the death sentences and the denial of adequate time
for visits of the sentenced persons by relatives is dismal. The bodies
of the hanged persons were desecrated and no public funerals could be
held.
Another instance of the Supreme Court's acquiescence to political
dictates is the current proceedings in the Supreme Court to 'retry'
several politicians and military personnel accused of the jail
killings of four Awami League leaders in November 1975. Of these four
politicians, incidentally also Awami League leaders previously, and
one diplomat in the foreign service were acquitted by the trial court
and several other former army officers were sentenced to various terms
of imprisonment were later acquitted by the High Court on appeal. The
Awami League leaders were senior cabinet ministers in the government
formed after the incident of 15 August 1975. Transcripts from the
trial court proceedings that acquitted the foreign service personnel
indicate that he has been in the diplomatic corps for about 25 years
after leaving the country in 1975 on advice from the then government
functionaries for his safety. He was army personnel then; he was on
training leave overseas during June to September, 1975, and in
November after he had returned he had refused to take sides in the
aborted army coup on 3 November. During the long period in diplomatic
service he was initially on deputation from the armed forces, and then
retired from the army and duly en-cadred into the Foreign Service
during the revamping of the ministry.
Of the group that were acquitted by the High Court for alleged
complicity in the 'jail killing incident' several have been hanged for
complicity in the murder of Sheikh Mujib and others. The attorney
general and other law officers now want the 'jail killing incident' to
be retried for a new charge of 'conspiracy'. Quite apart from legal
reasoning, this course of action militates against simple logic and
common sense. First, how can there be killing or some such grave
offence eventuate without 'conspiracy'; can this latter charge be a
basis for fresh proceedings? Secondly, among the persons who were
acquitted by the High Court, some have been hanged. How can these dead
people be the subject-matter of new or even any legal proceedings.
Thirdly, no proceedings were taken up in the High Court, nor was there
any necessity to do so by those persons who were acquitted by the
trial court.
The Supreme Court cannot remit the case of the 'jail killing' to the
trial court or order fresh proceedings in the trial court for a
separate fresh allegation of 'conspiracy'. The scope of Article 104 of
the Constitution does not even remotely apply in these circumstances.
Lastly, there is the rule against 'double jeopardy', or 'nemo debet
bis vexari pro uno delicto'. By these rules, an accused person cannot
be placed in peril of being convicted of the same crime in respect of
the same conduct on more then occasion, or variously, no one should be
punished twice for the same wrong. The rule against double jeopardy is
entrenched in the Constitution of Bangladesh by Article 35(2). It is
also recognized by customary international law and by provisions of
international human rights instruments such as Article 7 of the
International Covenant on Civil and Political Rights.
Currently, also before the High Court are proceedings that the special
military tribunal, constituted by an executive martial law decree of
late president Ziaur Rahman that sentenced Lt Col Taher to death in
1976 be declared unlawful. Moral and other issues of propriety of the
executed death sentence may well differ. But what judicial relief can
be obtained now for the sentence of death carried out 34 years ago.
From the trend of litigiousness in the judicial institution of a
partisan disposition, proceedings like these will multiply.
One stark thing that is currently being practiced by the attorney
general and other law officers is the pronouncements of the attorney
general and others in his office of the preferred outcome of political
charged cases in the midst of judicial proceedings. It is a
well-recognized tenet of the rule of law that when a matter is pending
judgment before a court, it is 'sub-judice' and any pronouncement for
and against a likely verdict constitute 'contempt of court'. It seems
that the highest judicial officers are influencing or even dictating
what the outcome of judicial proceeding should be. And they are doing
it with impunity. The court is silent on these matters. The court is
also silent on such issues of the rapidly escalating instances of
extra-judicial killings where, in the main, political opponents and
activists are eliminated by the members of the RAB, euphemistically
described as 'cross fire' killings.
Political partisan judicial verdicts abound in recent Supreme Court
rulings. The former prime minister, Khaleda Zia on being served order
relating to eviction from her house in the cantonment area that was
granted to her in 1981 applied to the High Court for relief that was
denied. One of the grounds for the ruling was that the eviction order
was not a government decision but of the cantonment board. What is the
status of the cantonment board if not a government agency? She was
evicted whilst a Supreme Court appeal was pending, and the Supreme
Court was not even prepared to grant the appellant's lawyers
application to have the contempt petition heard before the appeal
hearing. The minimum standards of judicial niceties and moralities
were squandered in the process.
One of the most glaring instances of judicial partisanship in the
current political climate is its role in the intervention in the
constitutional process. The Supreme Court has recently ruled that the
5th amendment to the constitution invalid. In its ill-reasoned,
contradictory and politically motivated judgment to please the
political masters of the day the court presented a fait accompli for
the political masters to all changes to the constitution since 1975.
Logically, wouldn't then Shiekh Mujib's 4th amendment creating a
one-party presidential government be reverted to? And wouldn't all
other governmental action since 1979 when the 5th amendment was passed
be invalid? In the 5th amendment case, the court cannibalized the text
of the constitution to fit the purposes of the current government. It
kept some of the amendments – like the invocation to 'Allah' in the
beginning of the preamble and the establishment of Islam as the state
religion but re-established 'secularism' as a state principle; kept
the identity of citizens as 'Bangladeshi' in place of 'Bengalee'
brought about by the 5th amendment, and then, the final desecration of
the constitutional process.
The constitution is being 'reprinted' to give effect to the Supreme
Court's judgment. The changes to the constitution upheld in the ruling
of the Supreme Court are constitutional amendments and can only be
brought about in the manner prescribed by the constitution – an
absolute majority vote of two-thirds members of parliament and in
respect of several specific provisions of the constitution, a
referendum. The 'reprint' of the Constitution in light of the Supreme
Court decision is something unprecedented in the annals of
constitutional government and contrary to the basic tenets of
constitutionalism.
The High Court's judgment in the 7th amendment case handed down on 29
December is in the same vein – only more ill reasoned and politically
rhetorsive and vengeful. It has called for invalidating all of the
changes brought about by the 7th amendment, and directed that the
rulings of the judgment be also included in the reprint of the
constitution. The chaos and disorder in the governmental and legal
process, and consequently in the very legitimacy of succeeding
governments since the 5th and 7th amendments, and all governmental
actions since then would be in peril. Indeed, in handing down such
verdicts the Supreme Court and the High Court in assisting to create
anarchy and chaos in the legal order can be indicted for 'judicial
treason'.
-------------------
(The writer is a constitutional specialist teaching at the University
Of New England, Australia). Sent comments to E mail :
nfb@citech-bd.com
http://newsfrombangladesh.net/view.php?hidRecord=345542
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