BANGLADESH: Legal actions taken against prominent lawyers involved in writ challenging assumption of office by Chief Adviser 

Dear friends,

The Asian Human Rights Commission (AHRC) has received information that legal action has been taken against 12 lawyers practicing in the Supreme Court, including three top lawyers who are former or current heads of the Supreme Court Bar Association and the Bangladesh Bar Council, relating to the violent incident at the Supreme Court premises on 30 November 2006. The incident took place after the Chief Justice of Bangladesh passed a ‘stay order’ that abruptly suspended the hearing of the writ petition challenging the assumption of office by the Chief Advisor of the interim Non-party Caretaker Government. The AHRC believes that legal action has been taken against those lawyers due to their challenges against the Interim Non-party Caretaker Government. We call for your urgent intervention into this matter.  

CASE DETAILS:

On 30 November 2006, when the High Court was about to pass an order in the writ petitions challenging the assumption of office by the Chief Advisor of the interim Non-party Caretaker Government, the Attorney General (AG) suddenly informed the Court that the Chief Justice (CJ) had passed a ‘stay order’ suspending any further hearings. The petitioners’ lawyers led by Dr. Kamal Hossain, Mr. M. Amirul Islam and Mr. Rokanuddin Mahmud then rushed to the CJ’s chamber to seek revocation/clarification of the order.

Meanwhile, when the news spread out that the powers of the High Court Bench had been arbitrarily revoked, protests broke out in the Supreme Court (SC) premises. The chamber and the Court of the CJ were then attacked and court hearings were interrupted by protesters. As a result, judges and lawyers in the SC were forced to take shelter.

On the same evening, the Supreme Court Bar Association (SCBA) expressed regret for any disrespect caused to individual judges. The lawyers for the writ petitioners also held a press conference and called for an inquiry both into the CJ’s ‘unprecedented order’ and the ensuing violence. With regard to the stay order, they particularly noted that no notice of this application had been served on the petitioners, nor had any of the usual procedures applicable been followed.

To date four cases have been filed in respect of the incidents on November 30.

Two cases were reportedly filed by staff from the SC and the AG’s office regarding the violence but the progress in these cases is not known to date (Case by Supreme Court Keeper Md. Nurul Islam bearing Case No. 29 dated 30.11.2006; and by Administrative Officer of AG’s Office, Md. Abdul Quddus, bearing Case No. 30 dated 30.11.2006, both filed at Shahbagh Police Station).

On 4 December 2006, a private complaint was made by Mr. Omar Sadat, who is a junior lawyer in the SC and the son in law of the outgoing Minister for Forests and Environment Mr. Shahjahan Siraj MP (BNP), before the Chief Metropolitan Magistrate (CMM). The complaint initially recorded as a General Report (GR) case (Shahbag Police Station Case No. 6(12)06). The accused persons in this case are all practicing lawyers of the SC, namely Mr. Rokanuddin Mahmud, Mr. Subrata Chowdhury, Mr. Enayetur Rahim and Mr. Awsafur Rahman.

On the same evening, many judges of the SC reportedly had a meeting at the CJ’s residence and adopted a resolution condemning a ‘group of lawyers and their flunkies’ for the violence, and stating that they would not sit in the Court until the SCBA and the Bar Council tender their apology, and also calling on the Appellate Division to draw up charges of contempt and sedition against those responsible. However, the resolution did not refer to the identities or contain the signatures of any persons who were party to it, nor did it state when or where the resolution was adopted.

That evening, Md. Rafiqul Islam, the Court Keeper of the SC filed a General Diary Entry No. 214 with Shahbagh Police Station accusing nine lawyers of sedition, unlawful assembly trespass and criminal damage. Following police inquiry, the police treated the GD as a First Information Report (FIR) bearing Shahbagh PS Case No. 4(12)2006. The accused persons in this FIR are Dr. Kamal Hossain, Mr. M. Amirul Islam, Mr. Rokanuddin Mahmud, Mr. Subrata Chowdhury, Mr. Subrata Saha, Mr. Khairuzzaman, Ms. Tania Amir, and Mr. Awsafur Rahman.

The police then submitted a charge sheet dated 22 December 2006, against 12 lawyers practicing in the Supreme Court, including three of the top lawyers in the country. Two of the three senior lawyers were involved in drafting the country’s Constitution. They have been charge-sheeted under Sections 143/147/447/448/435/427/506/114 of the Penal Code (being a member of an unlawful assembly/rioting/criminal trespass/house trespass/mischief by fire or explosive/mischief/criminal intimidation). The highest penalty is seven year imprisonment (for mischief by fire or explosives and criminal intimidation). All offences are bailable and sedition has not been included in the chargesheet.

As the Supreme Court is refusing to sit unless the SCBA and the BBA tender an apology for the incident on November 30, the accused lawyers are not able to immediately approach the Supreme Court to seek bail. At this stage any of the accused is liable to arrest.

The AHRC is deeply concerned by an attempt to attribute the violent incident to the petitioners’ lawyers. Instead of holding or directing any inquiry into the incident on November 30, the SC has itself purported to find certain persons responsible for the violence, and directed their prosecution. The Supreme Court has also lost its impartiality as it played a combined role in the functions of complainant, prosecutor, and judge in this case. It resulted in a total denial of the fundamental principle of due process, independence and impartiality of the judiciary.

BACKGROUND INFORMATION:

The Constitution of Bangladesh provides that during the interim period (between dissolution of one Parliament and the constitution of the next Parliament) a Non-Party Caretaker Government, under a Non-Party Chief Advisor, would exercise executive authority on the advice of a Council of Advisers. This is meant to ensure that the state institutions cannot be used by the outgoing Government to serve its partisan interests or to abuse them as instruments for “election engineering” i.e. manipulation of the election results.

The office of Chief Advisor has been assumed by President Professor Dr. Iajuddin Ahmed, who had been appointed under the outgoing Government, disregarding the provisions of clauses 2, 3, 4 and 5 of Article 58C of the Constitution. Various actions by the President indicated that there was a nexus between him and the outgoing 4 Party Alliance government, and that he was not acting in consultation with the Council of Advisors.

On 26 November 2006, three writ petitions were filed before the High Court Division by representatives of various political parties belonging to the Awami League-led 14 party Alliance. They are a writ petition challenging the assumption of the office of Chief Advisor by President (WP No. 11470 /06), a writ petition challenging the Chief Advisor’s powers to take decisions unilaterally without consultation with the Council of Advisors, (WP No. 11471 /06) and a writ petition challenging the declaration of the election schedule to conclude in the holding of elections on 21 January 2007, prior to the correction of the electoral rolls (WP No. 11472/06).

On the next day on November 27, the Election Commission, with the advice of the President, declared the election schedule, despite the pendency of a writ petition on that very issue.

On November 29, AG Mr. AJ Mohammad requested the High Court to dismiss the petitions, on the ground of delay, arguing that they had been brought too late, 30 days having elapsed since the President assumed the office of the Chief Adviser of the Caretaker Government and the elections only being in place for a total of 90 days, and that the acts of the President are immune from any judicial review.  For the petitioners it was argued that the passage of time does not make an unconstitutional act constitutional and if it is accepted that the President’s actions cannot be challenged then the Constitution would cease to operate as the supreme law of the land.

The High Court declared that it was minded to pass an order at 2:00pm on November 30. However, the AG returned to the Court at 2:00pm accompanied by several senior lawyers affiliated with the Bangladesh Nationalist Party (BNP) and handed over to the Judges a “stay order” issued by the CJ suspending further hearings of the writ.

It is alleged that the formation and the functioning of a Non-Party Government have been obstructed from the outset. It is also alleged that the members of the Election Commission have been appointed in non-independent and arbitrary way. The Commission suddenly, at the behest of the outgoing Government, announced an election schedule without a proper Voters’ List having been prepared, in compliance with the judgment of the Appellate Division of the SC of Bangladesh.

Many critics are also questioning about the independence of the CJ. There are at least a dozen reported incidents where the Chief Justice has directly or indirectly interfered with the dispensation of justice in favour of the outgoing BNP government. During his tenure as the Chief Justice there has been the highest number of reconstitution of the benches of the High Court.

SUGGESTED ACTION:
Please write to the relevant authorities listed below and express your serious concern about this matter.

 

 

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