The Supreme Court lawyers decided on Sunday (May 11, 2008) to boycott the Appellate Division of the Supreme Court for two hours on Thursday, May 15, in protest against a series of verdicts, including the highly controversial ruling, which abdicated the power of the Supreme Court to review applications for bail regarding the Emergency Power Rules (EPR) made by the Supreme Court Appellate Division on April 23, 2008. The Supreme Court Bar Association (SCBA) decided that the protest is to start at 9 a.m. on the 15th. The SCBA is of the view that several verdicts of the Appellate Division of the Supreme Court, which prevents challenges to provisions of the EPR are in conflict with the rule of law, the fundamental rights of the people and the constitution. The SCBA went further to state that the lawyers are disappointed and surprised by such judgements. The lawyers are demanding the withdrawal of the state of emergency and for an immediate national poll in order to establish democracy and rule of law. The SCBA went further to term the EPR as a black law designed to put political opponents behind bars without due process. The lawyers are also of the view that under no circumstances could the Supreme Court be deprived of the power to grant bail when the court is of the view that applications for bail are justified.
The decision of the Appellate Division of the Supreme Court made on the April 23, 2008 goes against the foundational principle of the separation of powers and virtually makes the highest court of the country, the Supreme Court, subordinated to the executive. This is a fundamental blow, not only to the constitution but also to the very institution of the judiciary itself and the legal profession. If the executive can make laws under whatever provision, whether it be through the parliament or through the EPR, the courts have the ultimate right to decide on the legality and the justifiability of such laws. If the courts do not have such power then the very reason for their existence and the legal profession will come into doubt. The people can simply ask what the courts are for and what the lawyers are for.
Before the Trial Division of the Supreme Court gave its verdict interpreting the prohibition for any court to intervene on matters of bail it consulted the leading lawyers in the country as Amicus Curiae (Friends of the Court) who gave their unanimous view that the Supreme Court derives it power from the constitution and that power cannot be withdrawn or abdicated. On that basis the Trial Division of the Supreme Court decided that it had the jurisdiction to decide on the matter of bail and that the prohibition against courts on that issue does not apply to the Supreme Court.
The decision of the SCBA needs to be lauded and supported by the lawyers, the people of Bangladesh and also by lawyers and others throughout the world who oppose the absolute power of the executive. The lawyers of Pakistan have shown the way by uncompromisingly staging a protest lasting over a year to protect the independence of the judiciary from the executive which wants a pliant judiciary. They have demonstrated that there is no way to save the checks and balances within the power structure of a country and to protect the people without upholding the independence of the judiciary. They have also demonstrated that where there are no checks and balances the law itself becomes a mockery and then the judiciary and the lawyers
The AHRC congratulates the far-sightedness of the SCBA in deciding to engage in active protests to safeguard the powers of the Supreme Court and the independence of the judiciary. The time has come for a courageous movement of lawyers in Bangladesh as it happened also in Pakistan. The people also need to actively support the lawyers in this protest. The lawyers throughout the world should demonstrate their support for the SCBA and the lawyers of Bangladesh.
