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Between executive and judiciary

The 45-year judicial history of Bangladesh is not much different from the one in Pakistan. Here is the correlation

Between executive and judiciary

In Pakistan, the executive-judiciary tussle is an old story but now Bangladesh also appears to follow the same path. Last week, the presidential spokesperson in Dhaka confirmed that the chief justice of Bangladesh, Justice Surendra Kumar Sinha, has resigned. Though both the executive and the judiciary are coy about sharing the real causes behind this resignation, observers of Bangladeshi politics tend to know what transpired.

Surendra Kumar Sinha was the first Hindu chief justice of Bangladesh who assumed his charge in January 2015; and during his around three-year tenure delivered some important verdicts. But first a quick look at the recent judicial history of Bangladesh.

In its 45 years of independent history, Bangladesh has had 22 chief justices i.e. on an average a chief justice has served only two years in office. In comparison, Pakistan has seen 25 chief justices in its 70-year history. Since the time of the first chief justice of Bangladesh, Abu Sayem, the superior judiciary has been dragged into politics and it has seldom played a courageous or legally impartial role. For example, from 1972 to 1975, Chief Justice Abu Sayem never tried to stop Sheikh Mujib from his increasingly authoritarian pursuits to destroy democracy there.

To differentiate right from wrong becomes difficult when the executive is not entirely innocent, and the judiciary also fails to keep its reputation as an impartial and transparent organ.

Even after the assassinations of Mujib with most of his family in August 1975, Abu Sayem clung to his post for another three months till November 1975 and never gave any verdict against the military coup. In other words, he followed in the footsteps of the erstwhile Pakistan judiciary. He never condemned the coup or the assassinations and was more than happy to become the chief martial law administrator (CMLA) and the president in November 1975 at the behest of the top army officers. Perhaps, he was the first chief justice to become the CMLA.

He remained the CMLA for exactly one year till November 1976 and then after 18 months as president exited the scene in April 1977 when General Ziaur Rahman took over as president of Bangladesh. Abu Sayem’s record as chief justice was less than envious as he hardly ever spoke against the mutilations in the constitutions. For instance, in the three years before his assassination in 1975, Mujib introduced at least three major amendments to his own constitution; the most devastating of them was the one brought about in January 1975 to stifle any opposition in the country.

He imposed a ban on all political parties in the country and initiated a one-party rule; a presidential system was installed, and the independence of the judiciary was severely curtailed. Then the military government issued multiple decrees from 1975 to 1979 that were against the constitution, but the judiciary kept mum. The second chief justice of Bangladesh, Syed Mahmud Hossain, from November 1975 to January 1978 accepted all decrees issued by the military government. Then the third chief justice Kemaluddin Hossain also did the same during his four-year tenure from 1978 to 1982, by not only acknowledging the military dictator, General Ziaur Rahman, but by also conceding to all his decrees.

General Ziaur Rahman uprooted the secular foundations of the constitution by giving it a religious tinge in the same fashion as General Ziaul Haq was doing it in Pakistan. In a way, both the generals were learning from each other. In 1979, General Ziaur Rahman gave a constitutional protection to all his martial-law orders through the Fifth Constitutional Amendment, but the judiciary in Bangladesh emulated the Pakistani judiciary by not posing any challenge to the dictator. In 1982 starts the longest tenure of a chief justice in Bangladesh. For the next seven and half years, Justice Fazle Kaderi Abdul Munim offers almost complete judicial support to another military dictator, General Hussain Muhammad Ershad.

That was the time when in Pakistan chief justice Mohammad Haleem led the supreme judiciary or almost nine years from early 1981 to late 1989. He established the record for the longest tenure that still holds. When Justice Abdul Munim in Bangladesh was providing full support to General Ershad, Justice Mohammad Haleem in Pakistan was doing the same with the dictatorship of General Zia. In 1986, General Ershad introduced the Sixth Constitutional Amendment to cover all his martial-law orders and Justice Abdul Munim behaved as all but a silent spectator. Then the same dictator introduced the Eight Constitutional Amendment to declare Islam as the state religion.

That’s how secularism was nearly banished, and an era of bigotry and religious prejudice started that greatly reduced the traditional tolerance and harmony there; as a result, the secularists are still being targeted in Bangladesh with even more frequency and intensity. The secularists simply opine that religion is any person’s individual choice and the state should remain impartial to ensure equal religious freedom and protection to all its citizens. Now, since 2010 the superior judiciary in Bangladesh has delivered some outstanding decisions that have reshaped the political landscape during the past seven years.

First, Justice Tafazzul Islam — who was chief justice for just one and half months — overturned the Fifth Constitutional Amendment nearly 30 years after its enactment by General Ziaur Rahman. Justice Tafazzul also upheld the sentences awarded to the assassins of Mujib and his family. In a related development with the Fifth-Amendment decision, the Awami League government abolished the caretaker system for elections that was supported by the same party in 1996.

Now we come to the recent resignation of Justice Sinha. The story began in September 2014 when the ruling party introduced a change in the constitution by incorporating the 16th Amendment.

The parliament was given the authority to remove judges if any charges of corruption or misdeeds were proved against them. In May 2016, a Special High Court Bench declared this amendment as illegal and unconstitutional. In January 2017, the government challenged this verdict in the Supreme Court, but the seven-member bench led by Justice Sinha unanimously upheld the high court decision. This enraged Prime Minister Hasina Wajid who openly started criticising the judiciary. In September 2017, the parliament passed a resolution demanding that the verdict be cancelled. In October 2017, Justice Sinha went on a month’s leave to Australia and Justice Abdul Wahhab Miah took over as the acting chief justice.

Within a few days, the new chief justice changed his colours, and the supreme court released a charge-sheet against Justice Sinha. The charges ranged from money laundering and financial corruption to moral misconduct. According to some press reports, the president of Bangladesh Abdul Hamid had given the documentary proof to the four judges of the supreme court.

One can recall the events happening in Pakistan 20 years ago when most supreme court judges opposed and removed their Chief Justice Sajjad Ali Shah. A 10-member bench led by Justice Saeeduzzaman Siddiqui had appointed Justice Ajmal Mian as the new chief justice.

Justice Sinha has resigned in the face of allegations. Keeping in mind the severity of the charges, the accused chief justice had little chance of reprieve, especially when his own brother judges have turned against him. The 45-year judicial history of Bangladesh is not much different from the one in Pakistan. The judiciary has welcomed military takeovers and curried favour with civilian governments. But the trend set by Justice Iftikhar Chaudhary in Pakistan to go against the executive and the parliament is new in Bangladesh.

To differentiate right from wrong becomes difficult when the executive is not entirely innocent, and the judiciary also fails to keep its reputation as an impartial and transparent organ.

Dr Naazir Mahmood

Naazir Mahmood
The writer has been associated with the education sector since 1990 as teacher, teacher educator, project manager, monitor and evaluator.

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