Judges, Justice and Democracy | daily-sun.com

Judges, Justice and Democracy

Abdul Mannan     18th November, 2017 09:32:27 printer

Judges, Justice and Democracy

Bangladesh’s Chief Justice Surendra Kumar Sinha, commonly known as S K Sinha, resigned from his post about three months ahead of his normal retirement amidst some unprecedented controversy, kicking lots of dust, not only in the judicial arena but also in the political circle. His resignation has already been accepted by the President.

Sinha was the first Chief Justice of Bangladesh from the minority community.

Whenever Sk. Hasina formed the government she was very generous in appointing persons from the minority community to important positions of the state and government.  During her three terms as the Prime Minister people from minority community held positions as Ambassadors, senior positions in defence and police forces, judges in the apex court of the country and as vice-chancellors of universities. Some of her critics, especially the Islamist political parties did not feel comfortable in such decisions of the Prime Minister but that could not deter the Prime Minister from her decisions. Bangladesh is fortunate to have had the service of some illustrious and competent Chief Justices (some before 1971 in the High Court) notable among them were Imam Husain, S M Murshid, Abdul Hamid Chowdhury, Abu Sayeed Chaudhury, Muhammad Habibur Rahman and  Khairul Hoque. I am sure there are others too.

 


Some would be surprised why the name of Justice Shahabuddin was not mentioned in my list of illustrious judges. Justice Shahabuddin became the Chief of first Caretaker Government in 1991. He did a commendable job in holding a good national election. In 1996 when Sk. Hasina formed the government she went out of her way to make him the President of the country once the tenure of Abdur Rahman Biswas came to an end. But Justice Shahabuddin could not protect his reputation, especially during and after the 2001 election when BNP-Jamaat led violence rocked the country. He was merely a silent spectator while he had enough power to take measures to protect life and property of the people as given to him by the 13 Amendment (now annulled). A senior teacher of Chittagong University was found guilty of leaking admission question papers and was removed from the service after following the due process of law. He later on appealed to the President and the Chancellor Justice Shahabuddin to reinstate him which he did. The concerned teacher served the university his full and went on normal retirement. Such an act was not expected from a person who once was the Chief Justice of the country.

Judges of the Supreme Court and of its High Court division are considered very honourable persons and important members of one of the three pillars of a democratic state-judiciary, the others being the legislative and the executive. It is only the judiciary which is entrusted with the power of interpreting the Constitution. Judges, especially of the apex court of the country, usually do not have a normal social life or make public statements while they hold their official positions. S K Sinha was an exception and immediately after his appointment he began making controversial public statements which embarrassed the government and the judiciary. Then came the infamous 16th constitutional amendment judgment, the restoration of removal of judges by the parliament. The apex court did not approve the 16th amendment, which was very much within the jurisdiction of the court but what annoyed cross section of the people and the government was some controversial observations of the judgment which according to many went against the spirit and history of the independence of the country and was deemed unnecessary. As the government has decided to move to the Supreme Court for review of the judgment and annulment of the controversial observations it may not be wise to discuss the issue any further. Facing criticism from different quarters on the judgment Justice Sinha tried to defend himself and finally went on a long leave and subsequently resigned from his positions. Some think this is unprecedented and is a big blow to the democratic norms of any country. Amongst the critics most vocal were senior politicians of BNP, some civil society members and a select group of print media. According to them Sinha was compelled to resign by the government. In the meantime reports were widely circulated in the media about alleged corruption involving Justice Sinha which was again trashed by these critics. The former Registrar of the Supreme Court Iktidar Ahmed added fuel to the fire when he came out with a statement saying that in the first place it was wrong to appoint S K Sinha as the Chief Justice of the country.

 

(Bangladesh Protidin, November 12, 2017). According to a statement by Iktidar Ahmed while Sinha was a judge in the High Court division allegations were brought against Sinha in 2008 of corruption, biasness while delivering judgment and money laundering. According to Iktidar, amidst these allegations, Sinha met the President on February 11, 2008 and expressed his desire to resign but later he backtracked from his decision. Currently he faces eleven allegations of corruption and moral turpitude. Whether such allegations will be proved and Sinha will be brought before justice is matters to be decided by the government.


Some pundits argue that the resignation (according to some removal) of Justice Sinha is a unique case in Bangladesh which is far from truth. On 3 March 1979 General Zia removed Justice Siddique Ahmed Chowdhury, Justice Abdul Mumit Chowhdury, Justice Ahsan Uddin Chowdhury, Justice Syed A B Mahmud Husain, Justice Ruhul Islam and Justice Debesh Bhattacharya. General Ershad removed Chief Justice Kamal Uddin Hussan, Justice Abdul Motalib and Justice Abdul Wahab. Both Generals played foul and manipulated the retirement age of the Judges of the apex court of the country to validate their action. On January 28, 1992 Begum Zia removed Justice Abdul Hasib and subsequently many others. Most removal of Judges happened during the rule of Begum Zia often without any reason.


Judges are revered by the society and when a nation is in political crisis apex court judges are thought to be the last resort in defusing the crisis. But unfortunately in the Sub-continent behaviour of some judges often have disappointed the people and the nation. Pakistan’s Second Chief Justice Muhammad Munir (1954-1960) is credited with sowing the seeds for destruction of democracy in Pakistan. Munir succeeded Justice Abdur Rashid. Munir was appointed Chief Justice by the Governor General of Pakistan Malik Ghulam Muhammad. Ghulam Muhammad was an ICS officer and known to be a master manipulator and excelled in his conspiratorial moves. He became the first Finance Minister in Liaqat Ali Khan’s cabinet and after Khan’s assassination was appointed  Governor General by Khawaja Nazimuddin who succeeded Liaqat. At this time the Pakistan’s Constituent Assembly was in session and was in the process of drafting the first constitution of Pakistan. After the death of Muhammad Ali Jinnah the first President (Speaker) of the Assembly Maulvi Tamizuddin Khan succeeded him (1948-54). Tamizuddin Khan hailed from Faridpur and had an illustrious political career in Calcutta, first with Indian National Congress and then with Muslim League. Sensing the new constitution will undermine the power of civil-military nexus Ghulam Muhammad dismissed the constituent assembly saying that the existing assembly did not have the power to frame a constitution. Tamizuddin Khan created history when he challenged the dismissal in Sindh High Court and the court ruled in favour of Maulvi Tamizuddin Khan. However, the Federal Court (Supreme Court) under Chief Justice Munir overturned the verdict of the High Court. Justice Alvin Robert Cornelius was the sole dissenting judge in the landmark judgment handed down by the Federal Court. That judgment altered the course of politics in Pakistan forever and sealed the fate of democracy and it was the beginning of the overt role of Pakistan’s military and civil bureaucracy in Pakistan politics. This was the first judicial coup in the subcontinent. Ironically it was one Bangali, Maulvi Tamizuddin Khan who tried to save Pakistan in its early years. Subsequently all military takeovers both in Pakistan and Bangladesh were legalised by the Chief Justices of each country.  Munir began the first judicial coup in Pakistan and that still is continuing taking Jinnah’s Pakistan to near destruction.

Before being appointed Vice-chancellor of Dhaka University on 2 December 1969 Abu Syed Chaudhury was the Chief Justice of Dhaka High Court. When Pakistan army cracked down on the people of East Bengal on March 26, 1971 Justice Chaudhury was on an official tour of Europe. During the Liberation War he played a crucial role in mobilising international opinion in favour of our Liberation War. After Bangladesh became independent, Bangabandhu as a mark of respect and tribute to his role during Liberation War appointed Justice Chaudhury the 2nd President of the new Republic. Bangabandhu assumed the office of the Prime Minister. After the assassination of Bangabandhu, Justice Chaudhury joined the cabinet of Khondakar Mushtaque as the Foreign Minister. Justice A S M Sayem and Justice Ahsanuddin Chowdhury both gave legality to the unconstitutional rule of Zia and Ershad. On March 6, 1971 just the day before the historic March 7, Admiral Ahsan was replaced by General Tikka Khan as the Governor of East Pakistan by General Yahya Khan. Tikka was known as the butcher of Baloochistan. The then Chief Justice of Dhaka High Court B A Siddiki refused to administer oath to Tikka because that would be seen as going against the spirit of the Bengali nation. Once Dhaka fell to the marauding Pakistan army, Justice Siddiki administered the oath of Tikka on April 9, 1971. Zia appointed Justice Siddiki as the permanent representative to UN.


Recently Chief Justice of Karnataka High Court in India, Justice Subhro Kamal Mukherjee had to on retirement without being given any customary farewell, usually given to a retiring Chief Justice by the High Court Bar. Justice Mukherjee was accused by the Bar of having involvement in a bribery scandal


Judiciary is considered the last pillar of democracy and its sanctity must be maintained at any cost. The onus of doing this lies on the judges who not only decide the fate of the people but at times also fate of a nation. The collapse of judiciary will be collapse of democracy. It is time politicians and civil society members honour this dictum and protect all the pillars of democracy. How Justice Sinha will be remembered in history only future can tell. Let democratic institutions survive.

The writer is an analyst and a commentator

 


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