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Bangladesh: A Judgement Gone Awry!

Paper No. 6312                                  Dated 16-Oct-2017

By Dr. S. Chandrasekharan

On many parameters Sheikh Hasina’s government is doing extremely well.  The economy is moving at around 6 percent growth.  There was a proud moment for Bangladesh when the first span of 6.15 Kilometer Padma Bridge was installed on 1st October- a project financed and executed indigenously.

On the Terrorist front, the country is doing equally well with arrests and recovery of arms taking place almost every day.  The security forces appear to be getting precise and actionable intelligence.  The counter terrorism unit of Dhaka is doing so well that its chief Monirul Islam declared recently in August that at that moment “the militants have no ability to launch fresh attacks in the country.”

At the UN General Assembly Meeting, Sheikh Hasina impressed with her modest suggestion on solving the Rohingya crisis.  Her five point proposal had many sympathetic responses- these included implementing Kofi Annan’ report in full, to send a fact-finding mission to Myanmar, safe zones to be created for all irrespective of their religion or ethnicity and ensuring sustainable return of all those forcibly displaced.

It was therefore surprising that the whole establishment of Sheikh Hasina went against a judgement of Chief Justice of the Supreme Court on the annulment of 16th amendment of the Constitution.  The Chief Justice S.K. Sinha was literally hounded out.  He has gone on a month’s medical leave (He is a cancer patient) though it is very unlikely he would return after leave.  He was due to retire on Feb.1 next year. By making personal attacks on the Chief Justice, the Bangladesh government has not brought itself any glory as these amounted to an attack on the judiciary itself! They have left a bad taste- avoidable and certainly the Bangladesh judiciary is as independent as any other similar organization elsewhere!

The issue was very simple and this related to the removal of members of a higher judiciary. Originally it related to removal of judges by the President in pursuant to a resolution of Parliament supported by two thirds majority of total members present on the ground of proved misbehaviour or incapacity (Article 96)

This was amended subsequently by a mechanism of a judicial council to review the case. The 16th amendment of the present government restored once again the parliamentary mechanism of the removal of judges.  It was this amendment that came up for hearing in the Supreme Court constitutional bench of six judges presided over by the Chief Justice.

 The judgement was unanimous and all but one wrote individual judgements and the verdict was that the 16th amendment was violative of the basic structure of the Constitution.  The judgement of the Chief Justice S.K. Sinha was the longest with over 400 typed pages and one could see the erudition and the sincere efforts made by the judge in coming to the conclusion that the parliamentary members are not yet fit to take on the power of removing the judges.  While the conclusions may be right, the words chosen by him were rather strong.  He said - “Parliamentary democracy is immature and to attain its maturity, there is a necessity of practising parliamentary democracy continuing for 4/5 terms!”

At another point the C.J. opined that “No nation is made of or by one person”- a statement misconstrued by the critics as a direct assault on the father of the nation Bangabandhu.  But the C.J. had followed this sentence with a reference to the “Sonar Bangla” by the father of the nation- Banga Bandhu- Sheikh Mujibur Rahman.  (This was conveniently left out by the critics.)

On the issue of elections of fifty women members to the parliament, the C.J. went out of the way to suggest direct election and not through parliament and this was criticised by the PM herself.

In all, the judgment made good reading with historic references from all over the world and a study is a must to all those aspiring students doing constitutional law. The Chief Justice admits that Judges being humans do (make) mistakes some of which could be unintentional- and his case was one such.

There was no doubt that the judgements angered many individuals including the present finance Minister Abdul Muhith. Initially word was sent round in the ruling party circles not to comment on the judgement. The correct response was that of the law minister who said “we do not agree but we respect the verdict.”  But the whole scenario changed when the Prime Minster herself criticised the judgements in very strong terms and said that the Chief Justice should have resigned!  This opened the flood gates.

One senior minster said that the sitting judges are “immature.”  Another said that the Chief Justice should be sent to a lunatic asylum.  As third one said that the judgement was perhaps written by another English knowing editor or by the ISI of Pakistan. Yet another called the Chief Justice a Razakkar who helped the then government in the liberation struggle. This perhaps was the unkindest cut of all.

The spirit of moderation and tolerance for fellow individuals appear to have vanished.  There is no doubt that the Chief Justice in his enthusiasm has failed to understand the creed or the DNA of the people around him.  Yet no one can deny that the role of the Judiciary in Bangladesh has been glorious, professional with integrity. 

The right thing to do would be to get the Chief Justice back to his work after the leave.  In the past he has delivered many profound judgements and he should be respected for his honesty, diligence and integrity. 

 

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