Tenuous task of tallying law with event

Shahdeen Malik | Update:

The first case challenging a constitutional amendment was Anwar Hossain Chowdhury vs. Bangladesh, in 1989, during the rule of Hussain Muhammed Ershad. The eighth amendment brought about two significant changes to the constitution. It introduced the state religion and created six high courts in six divisions instead of the one High Court in Dhaka.

The question of whether there will be one high court in the country or six, has a theoretical side and a practical one. From the practical aspect it was said that a unitary republic cannot have more than one high court. A federal republic can have high courts in each federal state, as in India. But as Bangladesh is a unitary republic, is it constitutional to have more than one high court in the country?

Ershad’s ulterior motive behind this constitutional amendment was to force the Dhaka lawyers to spread out to the other divisions. There have been other constitutional amendments also driven by ulterior motives, but that’s another story.

Lawyers and professionals have been part of the movement against the eighth amendment and against Ershad. The two leaders of the two major parties, Sheikh Hasina and Khaleda Zia, were also in the movement. Those vocal behind the first case challenging the amendment still play important roles in such cases or as amicus curie. These included Dr Kamal Hossain, Syed Ishtiaque Ahmed, Amir-ul Islam, Ashraful Hossain, Khandakar Mahbub Uddin Ahmed and Mahmudul Islam. The state counsellor was attorney general at the time M Nurullah along with his associates Abdul Wadud Bhuiyan, AF Hasan Arif and others.

The Appellate Division ruled that there cannot be several high courts in a unitary republic. The part of the amendment calling for several high courts was declared unconstitutional.

The eighth amendment case is significant in the present context because not only did the Appellate Division scrap the amendment but it also reinstated the system of having a single high court. Article 100 which was dropped by the eighth amendment, was reinstated in this verdict. Later at various intervals, the fifth, seventh and thirteenth amendments were scrapped by the Supreme Court.

Many of the lawyers who were arguing for and against the eighth amendment, are no longer living - Syed Ishtiaque Ahmed, Ashraful Hossain, Khandakar Mahbub Uddin Ahmed, Mahmudul Islam and M Nurullah. The rest still are involved in challenging constitutional amendments, and are joined by others.

In recent times, the sixteenth amendment was scrapped by a court verdict. The sixteenth amendment has replaced Article 96 with a new article 96. The original article had provision for a Supreme Judicial Council system under which the president would ask the council to investigate serious allegations of incapacity or misbehaviour against a judge or any other person holding constitutional office. If the allegations were proven true, the Supreme Judicial Council would apprise the president of this. The president would then remove the offending person from office. The sixteenth amendment placed this authority to impeach a judge upon the parliament. By scrapping the sixteenth amendment, the Supreme Court revived the Supreme Judicial Council. And the president has been returned the powers to refer allegations to the Supreme Judicial Council for investigation.

It has been reported that the honourable president summoned four judges of the Appellate Division to Bangabhaban and apprised them of 11 allegations against the chief justice SK Sinha. Further reports have it that five judges of the Appellate Division later called upon SK Sinha in this connection, but received no satisfactory reply. After that the chief justice suddenly went on health-related leave and left the country. All this created quite a furore. The law minister and the attorney general have issued statements. Pro-Awami League and pro-BNP lawyers have kept up a heated stream of demands and counter demands.

There are some interesting elements in all this. It is only natural for allegations to arise against important persons. The first prerequisite of such allegations being credible is that there must be mention of the complainant’s name and address. Anonymous complaints are usually not entertained. The complainants of these 11 complaints remain unnamed and have no addresses. Perhaps an individual lodged these complaints with the president and he is probing these through a nameless unidentified agency. Perhaps sensing the strong basis of these allegations, the president summoned the four judges.

In the few countries where there rule of law is firmly in place, cases emerging from such preliminary occurrences (the meeting between the president and the judges, the judges meeting the chief justice and later the law minister and attorney general’s desperate cries to the anti-corruption commission), can be dismissed easily. No case can be conducted on the basis investigation conducted by someone not qualified to conduct the investigation.

According to the constitution, the president will refer any allegations against a judge to the Supreme Judicial Council for investigation and a decision, if he deems the allegations worthy of being taken into cognizance. If the allegation is against any member of the Supreme Judicial Council, then he will be dropped from the council and replaced by the fourth most senior judge.

Referring to the eighth amendment, the verdict held that there would be only one high court. And so it was. That was during Ershad’s rule.

In the sixteenth amendment verdict, clauses 2 to 7 of the original Article 96, regarding the Supreme Judicial Council, were reinstated. In other words, all provisions for the Supreme Judicial Council were put into effect. So if any complaints are lodged with the president, he is to refer this to the Supreme Judicial Council. He clearly did not do so.

The reason behind this is clear in the law minister’s words. The government does not deem that the Supreme Judicial Council is in effect. It really doesn’t bother over what is in the verdict or not.

Makeshift decisions never bode well for a state. Yet we note that several judicial officials in the Supreme Court administration have been sent en masse to Panchagarh, Thakurgaon, Lalmonirhat, Satkhira, Barguna, and other remote districts. So long we had known that when government change, certain government officials are frowned upon by the new political government. Loyalists of the old government are sidelined. It’s quite exciting to see that these great ideals of political governments are now being applied to the judicial administration too.

Ever since the sixteenth amendment verdict was published in August, there has been quite a commotion over the issue for the last two and a half months. The uproar was silenced for some time as the court went on vacation and the Rohingya crisis eclipsed all else, but SK Sinha is back in the news again.

Let us assume that the allegations brought against him will be sent by the president’s office or the Supreme Court office to the Anti-Corruption Commission. It’s not rocket science to  guess the results of the investigation to be conducted by the deputy director who is given responsibility to look into these allegations. In countries where the rule of law is restricted to political rhetoric, the results of such investigation are quite clear to the public before the investigations even commence.  

*Shahdeen Malik is a lawyer of Bangladesh Supreme Court and a teacher of law at the University of Asia Pacific. This piece, originally published in Prothom Alo Bangla print edition, has been rewritten in English by Ayesha Kabir. 

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