FOR IMMEDIATE RELEASE
AS-320-2006
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
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.
7 December 2006
1. SUMMARY
Three senior lawyers (including both former and sitting heads of the Supreme Court Bar Association and the Bangladesh Bar Council) and six others involved in a writ petition challenging the assumption of office by the Chief Advisor of the interim Non-party Caretaker Government have been accused of sedition?in connection with incidents of violence at the Supreme Court premises on 30.11.2006 which followed the abrupt suspension of the hearing of the writ petition on a stay order?passed by the Chief Justice of Bangladesh.?
On 30.11.2006, as the High Court was about to pass an order in this writ petition, it was suddenly informed by the Attorney General that the Chief Justice had passed a stay order?suspending any further hearings. The petitioners?lawyers ?led by Dr. Kamal Hossain, Barrister M. Amir-ul Islam, and Mr. Rokanuddin Mahmud – immediately rushed to the Chief Justices chamber to try to meet him to seek revocation/clarification of the order when violence ensued in the court premises, resulting in damage to both public and private property, and judges and lawyers were forced to take shelter. It is highly unfortunate that certain quarters are now seeking to attribute this violence to the petitioners?lawyers among whom are included the most senior lawyers and leaders of the Bar, two of whom were involved in drafting the countrys Constitution.
That evening, the Supreme Court Bar Association (SCBA) expressed regret for any disrespect caused to individual judges. The lawyers for the writ petitioners held a press conference at which they called for an inquiry both into the CJs unprecedented order?and the ensuing violence. Two cases were reportedly filed by staff from the Supreme Court (SC) and the Attorney Generals (AGs) office regarding the violence but progress in these is not known to date (Case by Court Keeper Md. Nurul Islam being Case No. 29 dated 30.11.2006; and by Administrative Officer of AGs Ofice, Md. Abdul Quddus, being Case No. 30 dated 30.11.2006, both filed at Shahbagh Police Station).
Over the next three days the BNP held rallies demanding that those responsible for the violence be prosecuted. On 4.11.2006, a private complaint was made by a lawyer?before the Chief Metropolitan Magistrate who sent the matter for police inquiry and on receipt of a police report, recorded the matter as a GR case being Shahbag PS Case No. 6(12)06. The persons named in this case as accused are all practicing lawyers of the Supreme Court, namely Mr. Rokanuddin Mahmud,? Mr. Subrata Chowdhury, Mr. Enayetur Rahim and Mr. Awsafur Rahman.
That evening, many (but not all) judges of the Supreme Court attended a meeting at the CJs residence and adopted a resolution?condemning a group of lawyers and their flunkies?for the violence, and stating that they would not sit in 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. That evening the Court Keeper 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, and lodged Shahbagh PS Case No. 4(12)2006. The persons accused are all practicing lawyers of the Supreme Court, namely Dr. Kamal Hossain,? Mr. M. Amirul Islam,?and Mr. Rokanuddin Mahmud, as well as Mr. Subrata Chowdhury, Mr. Subrata Saha, Mr. Khairuzzaman, Ms. Tania Amir, and Mr. Awsafur Rahman.
Given an unprecedented situation in which the Supreme Court is currently refusing to sit (unless and until the SCBA and the BBA tender an apology for the events of 30.11.2006?, the accused persons are not able to immediately approach the Supreme Court to seek bail, as would be the usual course. The Supreme Court instead of holding or directing any inquiry into the incident has itself purported to find certain persons responsible for the violence, and directed their prosecution (for sedition) and punishment (by way of contempt). It has thus combined within itself the functions of complainant, prosecutor, and judge ?arguably resulting in a total denial of the fundamental principle of natural justice ?that?no one shall be a judge in their own cause.
2. BACKGROUND
2.1 Writ Petitions regarding Chief Advisers Authority and Powers and Election Schedule
On 26.11.2006, 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 as follows:
– challenging the assumption of the office of Chief Advisor by President Professor Dr. Iajuddin, (WP No. 11470 /06)
– challenging the Chief Advisors powers to take decisions unilaterally without consultation with the Council of Advisors, (WP No. 11471 /06) and
– 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) .
2.2 The Hearing
On 26.11.2006, the Attorney General, Mr. AJ Mohammad Ali, prayed for one days adjournment in order to prepare for the hearing, and in the meantime met the President Prof. Dr. Iajuddin Ahmed later at night.
The next day on 27.11.2006, it was reported in all national newspapers and the electronic media that the Election Commission, with the advice of the President, had declared the election schedule, despite the pendency of a writ petition on that very issue.?
On 27.11.2006, the Attorney General sought a further adjournment for the purposes of preparation of his submissions. Following submissions for the petitioners that they might be permitted to begin placing the petition given the urgency of the matter, with the AG responding when he was ready, the Court passed an order for the matter to be taken up at 2 pm the next day on 28.11.2006. However, the Court further deferred the matter until 29.11.2006.
On 29.11.2006, the AG argued vehemently for dismissing 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 CG only being in place for a total of 90 days, and further on the ground 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
– if it is accepted that the Presidents actions cannot be challenged then the Constitution would cease to operate as the supreme law of the land.?
The Court declared that it was minded to pass an order on 30 November 2006.?
On 30 November, the AG submitted an application for the formation of a larger bench for hearing of the case before the issuance of a Rule, given the questions of utmost public importance involved. However, he also argued that the petitions should have been rejected summarily without any hearing as
– the outcome of the case would have grave consequences for the nation;
– the petitioners had come to court to further their political purposes, namely to cause another obstacle to the forthcoming elections which have to be held in 90 days.
For the petitioners, it was submitted that the Court had already allowed extraordinary indulgence to the AG. A Rule is generally issued in a motion, often on an ex parte basis. The opportunity for a full hearing comes only after the issuance of a Rule. Therefore, the application of the AG for a larger bench was premature.?It was also argued that the AG was making contradictory statements, for summary dismissal of the writs on the grounds that they did not merit consideration, and on the other hand for constituting a larger bench.?It was further contended that the application for the constitution of a larger bench at this stage of the proceedings is being made with an ill motive and was unprecedented.
The Court queried whether the AG could apply for a larger bench at this late stage of the initial hearings, noting that in any event such an application could be made for the hearing to be conducted before a larger bench after issuance of a Rule.?
At one point the AG claimed that there was an earlier decision where the Appellate Division had stayed the proceedings of a case to constitute a larger bench and undertook to produce this before the Court at 2:00 p.m. after the lunch recess. The Court expressed the view that it was minded to pass an order at 2:00 p.m. since the AG had left the Court and had untaken to come back at 2:00 p.m. with a precedent which was relevant for the Court.
2.3 Chief Justices Stay Order
The AG returned to the court at 2:00 p.m. accompanied by several senior lawyers affiliated with the BNP and personally handed over to the Judges a stay order?apparently issued by the Chief Justice suspending further hearings of the writ. The Court then rose.
2.4 Violence Breaks Out
As the news spread that the powers of the High Court Bench had been mysteriously and illegally revoked and that the Chief Justice had left the Supreme Court premises, protests broke out in Court.?The chamber and the Court of the Chief Justice were attacked, and reportedly courts were interrupted while conducting hearings by persons kicking at their doors or entering the rooms and shouting abuse at the judges. A four wheel drive vehicle of a former State Minister parked in the Supreme Court premises was broken and set alight.
2.5 Responses of the Bar and Political Parties to the Incidents of 30.11.2006
The SCBA convened an inquiry committee to investigate the incidents of violence. It also questioned and condemned the actions of the CJ in passing this unprecedented order.?
Lawyers for the petitioners in the writ held a press conference, condemning the violence, and noting that an inquiry should be held and those found responsible punished. They also noted however that with regard to the stay order, no notice of this application had been served on the petitioners, nor had any of the usual procedures applicable been followed. The manner in which this order had been passed was clearly obstructing the course of justice and the enforcement of the Constitution. Such an order was unprecedented. The Attorney General clearly acted ultra-vires since such actions were apparently prompted by the out going Government and could not have been authorized by the Council of Advisers.
These actions manifested open and persistent defiance of the Constitution in order to deprive the nation and its citizens of a free and fair election in accordance to the safeguards provided in the Constitution, namely, that the election should be held under a Non-Party Caretaker Government and a truly independent Election Commission.
The Jatiyatabadi Ainjibi Forum (Nationalist Lawyers Forum) affiliated to the BNP held meetings in the SC premises (with the Jatiyatabadi Jubo Dol (Nationalist Youth Group), also affiliated to the BNP) holding meetings just outside the SC premises, calling for punishment of those responsible for the violence, but with no reference to the CJs order other than to say there was precedent for it.
Leaders of the Bangladesh Nationalist Party led 4 party alliance including former Ministers of the BNP and Jamaat also demanded punishment of those responsible.
The 14 party alliance condemned the abrupt termination of the hearing and questioned and regretted the politicization of the SC.
2.6 ‘Resolution’ adopted by the Supreme Court
On 4.12.2006, a meeting was reportedly held at the official residence of the Chief Justice in which many Supreme Court Justices passed a resolution?regarding the occurrence at the Supreme Court premises on 30.11.2006.
On 5.12.2006, a?notice signed by one Mr. Haq, Deputy Registrar-3, Supreme Court was issued to various persons (including the Attorney General, the Judges of the Supreme Court and selected electronic and broadcast media) referring to the said meeting and requesting them to take appropriate steps in light of a resolution?adopted at the meeting. A document was appended to the notice and titled Supreme Court of Bangladesh, Dhaka?purportedly containing the said resolution?
The said resolution?dated 5.12.2006 referred to the occurrence at the Supreme Court created by an organized group of lawyers and their flunkies?and called upon the Appellate Division to bring charges of contempt and sedition under sections 188/504/505/124A of the Penal Code against those responsible for the violence in the Court on 30.11.2006. This document also requested the Government to provide enhanced security for the Judges. This document also stated that the Supreme Court would not sit until the Supreme Court Bar Association and the Bangladesh Bar Council had tendered an apology for the events of 30.11.2006. The resolution, however 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.
2.7 Status of Sedition Cases
On 5.12.2006, and apparently on the basis of the said resolution, the said Court Keeper filed the complaint as described above out of which the instant FIR arises. The CMM later passed orders for this to be treated as an FIR. On the same day, the CMM also passed orders for the earlier case filed by Mr. Omar Sadat to be treated as a case of sedition.
At this stage any of the accused is liable to arrest.
2.8 Supreme Court Sittings Suspended
Between 5.11.2006 to 6.11.2006, none of the Benches of the Appellate or High Court Divisions sat (reportedly with two exceptions). It was reported on the news that the Chief Justice had stated that the Supreme Court will sit again on Sunday 10.12.2006 as many judges were of the opinion that the situation could not continue. Six judges had also reportedly abruptly taken leave during the period when the Benches were not sitting (see www.bdnews24.com)?
3. CONCLUSION
There is a national consensus for holding free and fair elections. The three writ petitions filed by the petitioners were brought in order to contribute to the process of creating an environment and enabling conditions for holding free and fair elections, in particular by questioning the authority and the unilateral process whereby the Chief Advisor has been acting. The manner in which the stay order?was passed, and the hearing of the writ petition into the authority of the Chief Advisor to assume office, as well as the manner in which the petitioners lawyers have been implicated in wholly fabricated and baseless cases on grave charges of sedition constitutes a serious negation of this exercise. It is particularly extraordinary that persons involved in making and defending the Constitution of Bangladesh should stand accused of sedition, not during military rule, but under a neutral non-partisan caretaker government regime.
These sedition cases may be seen as a way of diverting attention from the main efforts by many political parties and civil society to bring about significant reforms to enable a level playing field to be established for the elections.
CHARGESHEET AGAINST TOP LAWYERS IN BANGLADESH
To date four cases have been filed in respect of the incidents of violence at the Supreme Court premises on 30.11.2006. The police have now submitted a charge sheet dated 22.12.2006, against twelve lawyers practicing in the Supreme Court, including three of the top lawyers in the country (two of them involved in drafting the countrys Constitution).
One of these cases, being Shahbag PS Case No. 6(12)06 was lodged on 4.11.2006 lodged by Omar Sadat a lawyer and the son in law of a former Minister for Forests and Environment, Shahjahan Siraj. Originally filed as a private complaint by Omar Sadat,?the Chief Metropolitan Magistrate ordered a police inquiry. Following the police inquiry, the CMM directed that the case be treated as an FIR in respect of various offences including sedition.
Four persons were originally named in the case. Now a total of 12 lawyers 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/housetrespass/mischief by fire or explosive/mischief/criminal intimidation ). The highest penalty is seven years imprisonment (for mischief by fire or explosives and criminal intimidation) ?all offences are bailable. Sedition has not been included in the charge sheet.?
The lawyers charge-sheeted include three of the most senior lawyers in the country, two of whom were involved in drafting the countrys Constitution:
1. Dr. Kamal Hossain?lt;br />Senior Advocate, Supreme Court Former President of the Supreme Court Bar,and former Vice Chairman of the Bangladesh Bar Council;?Member, Law Asia, International Law Association, International Bar Association
2. Mr. M Amirul Islam?lt;br />President of the Supreme Court Bar,and former
Vice Chairman of the Bangladesh Bar Council; Member, of the Constitution Drafting Committee; former Minister for Food;?Founder, Legal Education and Training Institute, Founder Member, Ain o Salish Kendra, Member, SAARC-LAW
3. Mr. Rokanuddin Mahmud?lt;br />Vice Chairman of the Bangladesh Bar Council and former President of the Supreme Court Bar
4. Mr Subrata Chowdhury?lt;br />Advocate,Supreme Court Bureau Member, South Asians for Human Rights
5. Mr. Enayetur Rahim?
Advocate,Supreme Court Former Secretary, Supreme Court Bar Association
6. Ms. Tania Amir?????????} Advocate, Supreme Court
7. Mr. Subrata Saha???????}?
8. Mr. Awsafur Rahman??? }
9. Mr. Khasruzzaman Pipal }
10 Mr. Suhrawardy????????}
11. Mr. Mamun Mahbub??? }
12. Mr. Habibur Rahman?? }
1?Mr. Omar Sadat, a junior lawyer in the Supreme Court, who is the son in law of the outgoing Minister for Forests and Environment Mr. Shahjahan Siraj MP (BNP).
2 Senior Advocate and Vice-Chairman of the Bangladesh Bar Council, and former President Supreme Court Bar Association.
3?Senior Advocate and former President Supreme Court Bar Association and former Vice Chairman Bangladesh Bar Council, former Foreign Minister, former UN Special Rapporteur on Afghanistan, currently Chairperson of the Advisor Committee, Transparency International.
4?Senior Advocate and President of the Supreme Court Bar Association, and former Vice Chairman, Bangladesh Bar Council, former Minister and former Member of Parliament.
