FOR IMMEDIATE RELEASE
AS-323-2006
December 27, 2006
A Statement by the Asian Human Rights Commission
BANGLADESH: sedition charges against leading Bangladesh lawyers involved in writ challenging assumption of office by chief adviser – Part Two
The Asian Human Rights Commission has received information that the police in Bangladesh have filed sedition charges against 12 lawyers practicing in the country’s Supreme Court ?those charged include two of the lawyers who were involved in drafting the country’s Constitution.
We are reproducing the information we have received below.?Due to the importance of this document the annexures may also be of importance to those who wish to get a proper grasp of the issues involved.?We are therefore reproducing the annexures as part two of this statement.
ANNEX 1: The Caretaker Government Takes Charge
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. A neutral non-party caretaker government 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 the President (who had been appointed under the outgoing Government) disregarding the provisions of clauses 2,3,4 and 5 of Article 58C of the Constitution.?
Following various actions by the President indicating 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, writ petitions were filed in the High Court Division challenging his assumption of office and manner of functioning. These were heard for one and a half days and an order (Rule) was about to be issued questioning the constitutionality of the President’s actions, when the Attorney General appeared and presented what was stated to be an order of the Chief Justice staying further hearing of the matter.
Independent commentators note that the formation and the functioning of a Non-Party Government have been obstructed from the outset. Many independent commentators note that the Election Commission has already been rendered non-independent by arbitrary and controversial appointments of members. Furthermore, the Commission by its actions has lost public confidence as it has 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 Supreme Court of Bangladesh, the highest court of the country.
ANNEX 2:?Allegations of Interference with Functioning of Supreme Court
(Translation of Article published in the Daily Prothom Alo dated 01.12.2006)
‘Chief Justice’s History of Serving the Interests of the BNP
There are at least a dozen reported incidents where the Chief Justice of Bangladesh has directly or indirectly interfered with the dispensation of justice in order to favour the BNP government. During his tenure as the Chief Justice there has been the highest number of reconstitution of the benches of the High Court.
The final and most flagrant intervention of the CJ was the unprecedented interference in revoking the powers of a Division Bench of the High Court which had expressed its intention of issuing a Rule in a writ petition challenging the assumption of the office of the Chief Advisor by President Iajuddin Ahmed.
There had been a time honoured tradition that the powers to hear writ motions were given to the senior Judges of the High Court. However, during the tenure of this CJ that convention has been completely ignored.
On 18 June 2006, a Division Bench comprising of Mr. Justice Shah Abu Naeem Mominur Rahman and Mr. Justice Mainul Islam Chowdhury issued a Rule on the Chief Election Commissioner Justice M.A. Aziz to show cause as to why his simultaneous holding of two constitutional posts [of?Supreme Court Judge and the CEC] shall not be declared to be illegal and unconstitutional. Within an hour of the issuance of the Rule the jurisdiction of the court to hear writ motions was revoked.
Also in 2006, a Division Bench comprising of Mr. Justice M.A. Matin and Mr. Justice T.M. Fazle Rabbi issued a Rule on the CEC M.A. Aziz to show cause as to why he should not be held in contempt of court. Immediately afterwards the powers and jurisdiction of this court to hear writ motions was also revoked by the CJ.
Thereafter the hearing of the writ against the CEC M.A. Aziz,?challenging his simultaneous holding of two constitutional posts, came up for hearing on the daily cause list of the Division Bench comprising of Mr. Justice Awlad Ali and Ms. Justice Zeenat Ara. Right before the hearing, the CJ passed an unexpected order and suspended the powers of this Court to dispose of any case on the cause list that was filed in 2005. It may be pointed that the case against Justice M.A. Aziz was filed in 2005. It was obvious to the lawyers present that this mysterious order was passed to prevent the hearing of the case against Justice M.A. Aziz. The same Justice Awlad Ali had again been at the receiving end of the CJs arbitrary exercise of power on Thursday, 30 November, 2006.
It had been a long established custom of the Supreme Court of Bangladesh that cases concerning the contempt of court were heard by the senior most Judge of the High Court Division. In this instance, involving the contempt charges against the CEC M.A. Aziz, the CJ by-passed all the senior Judges and sent the contempt case against CEC M.A. Aziz to the 25th senior most Judge.
On 29 August 2005 the Division Bench comprising of Mr. Justice A.B.M. Khairul Haq and Mr. Justice A.T.M. Fazle Kabir passed a judgment declaring the Fifth Amendment to the Constitution as being illegal. The regimes of Khondoker Mushtaque, Justice Sayem, and General Zia were also declared to be unconstitutional. This judgment was stayed by the Chamber Judge in the middle of the night that very day. The judgment has not yet seen the light of day. The Justices involved in the passing of the judgment have been penalized by being assigned to single benches with no important work.
The present situation of the High Court is that the senior Judges of the High Court have been sidelined. The four Benches which have been given powers to hear writ motions are primarily dominated by the younger Judges.
On 11 June 2006 while the Opposition was enforcing their Dhaka Siege?programme the CJ took an extraordinary step to constitute a special bench at the house of Mr. Justice Dastagir Hussain. It may be mentioned that Mr. Justice Dastagir Hussain is the CJs cousin. One of the four writ benches of the High Court Division is comprised of Mr. Justice Dastagir Hussain and Mr. Justice Mamnur Rahman. It may be noted that Mr. Justice Mamnur Rahman is the nephew of the now acting CEC Justice Mahfuzur Rahman and was a BNP backed candidate in the Supreme Court Bar elections.
Similar actions were taken by the CJ against High Court Benches which had issued contempt of court proceedings against government officials who had defied a court order in order to assist the controversial election process during the bye-election to Dhaka-10 constituency eventually won by the BNP leader Mosaddeq Ali Falu. The CJ had also revoked the jurisdiction of the writ bench which had issued a Rule on the Government to show cause as to why the mass arrests, before Opposition sponsored rallies and blockade programmes, should not be declared unconstitutional.?
Annex 3: The?Supreme Court of Bangladesh’s ‘Resolution’
?lt;br />ANNEX 4: Criminal Case by the Court Keeper against Constitution Drafters and Others
To
Officer-in-Charge
Shahbagh Police Station, Dhaka
Sub: Regarding the occurrence of the unfortunate and organized events at the Supreme Court premises on 30.11.06
Dear Sir,
I humbly submit that at 2:30 pm on 30.11.06 preceding the Honble Attorney General informed the Honble Judges of the Stay Order passed by the Honble Chief Justice in the writ petitions being heard before the Honble Judges of Court No. 12 (Annex Building) at the time. Hearing this some of the lawyers of the petitioners and their assistants became agitated and made derogatory remarks loudly and in unspeakable words, started shouting names and slogans against the Chief Justice and other Honble Justices of the Court, and while screaming and shouting, left Court No.12 and proceeded towards the Chief Justices Chamber at the Main Building of the Supreme Court and reaching near the Chief Justices Chamber these lawyers started breaking the door, the window panes, and other furniture kept in the verandah of the Court. In addition they broke the furniture and caused damage to the Court of the Chief Justice. At this point they also broke flower pots kept at the verandah, and the chairs kept there and threw them down to the ground floor of the building. They also broke the flower pots and furniture kept on the Chief Justices Staircase. At this point they tore down the national flag flying in front of the Main Building of the Supreme Court and ripped the flag to pieces.
Further, at around 2:40 p.m. some lawyers and unruly persons entered Court Room No.14 (Main Building) in which the Honble Justices were presiding over a hearing, started kicking and shoving at the door of the Court, forcibly entered the Court and obstructed the hearing by the Court. They also hurled abuse in unspeakable words at the Honble Justices sitting in Court.
At that time I was present at the place of occurrence and saw that Mr. Rokonuddin Mahmud, Dr. Kamal Hossain, Ms. Tania Amir, Mr. Amirul Islam, Mr. Khairuzzaman, Mr Subrata Chowdhury, Mr. Subrata Saha, Mr. Awsafur Rahman and other lawyers led a procession of about two hundred lawyers?assistants and other unruly individuals and engaged in unlawful and offensive activities. Besides one lawyer whom I will recognize if I see brought down the national flag and ripped it apart.
This incident was witnessed by my colleagues, and other lawyers, court officers and staff, litigants present in court, and on-duty police officials. I hereby request you to treat this complaint as an FIR [first information report] and take necessary steps.
Date: 05.12.2006
Source: Noted as Shahbagh Police Station GD No. 214
Dated 05.12.2006
Sd,
Duty Officer,
Shahbagh Police Station,DMP Dhaka
Yours sincerely,
(Md. Rafiqul Islam)
Court Keeper
Bangladesh Supreme Court
High Court Division, Dhaka
