‘No scope for the judges under investigation to resign’

Prothom Alo: The attorney general has said that the steps taken regarding the three judges certainly send a message out to others who are not conducting themselves in a correct manner. What do you say?

Anisul Huq: I really know nothing about this matter. However, you will recall I spoke to you in an interview once about the High Court bench of Justice Salma Masud Chowdhury and Justice Zahurul Huq.

Prothom Alo: Yes, the interview was published in Prothom Alo on 18 May 2019. That High Court bench had ruled in favour of a writ petition submitted by Mizanur Rahman of MR Trading. They issued directives to the Financial Loan Court in Dhaka to impose a decree on National Bank to return Tk 480 million after adjustment of the bank loan as well as the 250,000 sq ft multi-storey building which had been mortgaged against the loan. One of the main lawyers of the plaintiff was former law minister Shafiq Ahmed. The case was withdrawn from the High Court on 16 November 2017. The Appellate Division later cancelled the High Court’s orders and fined the plaintiff Tk 10 million. He has even deposited the fine.

Anisul Huq: The judiciary is independent. I do not know what decision the chief justice has taken after consulting with the president. That is why it would not be right for me to comment.

I am the law minister. If I make a comment, it may influence the investigations. I am not fully aware of what the chief justice, in his wisdom and experience, has said to the president and what measures he has taken. If an investigation is carried out against a judge, he will certainly be ‘compromised’ when carrying out his duties. That is why the chief justice’s decision is correct.

We will now observe how the chief justice’s inquiry is carried out. There are certain problems. But I do not think there is any problem in conducting the inquiry. There can always be in-house investigations.

Prothom Alo: Will that be in light of the 16th Amendment?

Anisul Huq: There is a review under scrutiny against this verdict. Leaving that aside, I want to say that the chief justice can carry out such an investigation by virtue of his position. Accountability and transparency is essential for good governance. He will take into consideration the complaint lodged with him and carry out the inquiry accordingly.

We should wait for the investigation to be completed. We will see what the investigations reveal and what measures are taken on the basis of the investigation.

Prothom Alo: There is criticism about this controversial writ in the full verdict of the Appellate Division.

Anisul Huq: Going back to the verdict in that case, I would say that when passing an interim order on any verdict, no one can be given full recompense. The High Court must accept this established norm of the Appellate Division. In the case under discussion, a full verdict had been given. Later the plaintiff withdrew the writ without any hearing.

Prothom Alo: Previously too you all had the authority to request the Supreme Court to carry out investigations. How far has that been applied? There is the 16th Amendment…

Anisul Huq: Firstly, we want to revert to the constitution of 1972 as given to us by the father of the nation Bangabandhu Sheikh Mujibur Rahman.

Secondly, if those who commit a crime are the ones to conduct the trial, then there will be no justice. In 1977 an undemocratic clause was added, placing the authority in their hands to remove any judge proven to be incompetent and improper. We wanted to give that authority to the people’s representatives. A judge’s position is extremely important. He cannot take this position in a willy-nilly manner.

Prothom Alo: The 16th Amendment verdict is still in effect, it hasn’t been shelved.

Anisul Huq: No, it hasn’t. But then, there is no Supreme Judicial Council either as the verdict is under review. The 1972 constitution had four sub-clauses. In 1977, eight sub-clauses were unlawfully appended to Article 96. The sub-clause regarding resignation was not revived in the 16th Amendment verdict.

Prothom Alo: As for the three judges under investigation now, can’t they resign even if they want to?

Anisul Huq: This is not in the constitution and so there is no scope for them to resign. That is why the 16th Amendment review petition and its speedy hearing is essential.

Prothom Alo: Will you carry that out this year?

Anisul Huq: The court will go on long vacation from 29 August. Once it opens we will approach the court for the hearing, Insha Allah. However, the appointer can always remove the appointed.

Prothom Alo: But there is a process about removing those in constitutional positions.

Anisul Huq: I will not go into that. I hail the chief justice’s steps. Because of him, we are assured to an investigation for the first time. The Supreme Court is the supreme institution. The people get justice from there. I do not want the slightest problem in justice delivery. That is why I hail this measure.

Prothom Alo: Is this the first time that the Supreme Court has taken such an initiative?

Anisul Huq: You can look research the matter. The Supreme Judicial Council did conduct a few investigations in the past. Justice Fayzi and Justice Shahidul resigned after investigations were initiated regarding false certificates and over taking a Tk 50,000 bribe respectively. Then again, Justice Mujibur Rahman was acquitted of charges pertaining to distributing leaflets.

If the three judges were in office now and the investigations were carried out, two problems would arise. People would be in a dilemma about receiving justice from them. And the concerned judge would be in an embarrassing position. This would disrupt judicial functioning.

Prothom Alo: What about the Anti-Corruption Commission? The ACC chairman seems to think the law allows him to investigate sitting judges.

Anisul Huq: ACC has the authority to investigate all corruption, regardless. However, I would wait for the honourable chief justice to complete investigations. I will not say anything before that.

Prothom Alo: Can’t the proceedings of the Supreme Court and ACC carry on at the same time?

Anisul Huq: This matter needs clarification. The inquiry committee may have esteemed members, but that is not the last word. If the judges are removed through the in-house committee, then only can ACC begin investigations. Not before that.

Prothom Alo: So the removal must first come from the Supreme Court decision.

Anisul Huq: Certainly. It is not from ACC first. The constitution says that the honourable judge will be removed though this process.

Prothom Alo: You have the scope to object to the Supreme Court. How far have you used this authority, specifically speaking?

Anisul Huq: I am not just the law minister. I am also a citizen of this country. If I receive complaints, I will certainly bring it to the attention of the chief justice. That will be in the interests of the nation. I have received no such complaint so far, so why should I complain either?

Prothom Alo: Is there an administrative stalemate or constitutional vacuum regarding the accountability of those holding constitutional positions?

Anisul Huq: You may say the glass is half empty. I will say it’s half full. There is not a complete vacuum, but there is a gap. It is essential for us to reach a correct position in this regard. That is why we will take this review petition to court for a speedy hearing immediately when the court reopens.

Prothom Alo: Thank you.

Anisul Huq: Thank you too.

*The interview, originally published in Prothom Alo print edition, has been rewritten in English by Ayesha Kabir