BANGLADESH: Meandering Thoughts on Moudud, the Madam, and Mega-Mendacities 

Dear friends,

The Asian Human Rights Commission (AHRC) wishes to forward to you the following statement in the form of an article entitled Beyond Contempt: Meandering Thoughts on Moudud, the Madam, and Mega-Mendacities

Asian Human Rights Commission
Hong Kong

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A Forwarded Statement by the Asian Human Rights Commission (AHRC)

BANGLADESH: Meandering Thoughts on Moudud, the Madam, and Mega-Mendacities

From 2.30 to 4pm the mobile barely stopped ringing. ‘Court’er latest khobor ki shunechen? Bishwas kortey parben na.’[Have you heard the latest news from Court, you’re not going to believe it!] I answered immediately ‘You mean they didn’t even issue a Rule! ‘Na, aro kharap, Chief Justicer kachey Attorney General, Moudud Shaheb ittadi gechen, tarpor CJ stay diye diyechen adesh dewar agei  [No even worse, the Attorney General, Moudud [Ahmed] etc went to the CJ and the CJ gave a stay order even before issuance of Rule.

More calls. ‘Apni kothai? Theek aachen to? Court-ey onek gondogol, bairey gari purchey, CJ’r roomer dikey michil jacchey’. ‘ [where are you ? are you okay?  There’s trouble in court, there’s a car burning outside. A procession is moving towards the CJ’s room] “Moudud made a threatening gesture’ ‘Moudud paliey gelo’  [Moudud ran away]

***
During the week of 26th November, the High Court was due to hear three writ petitions relevant to the current political crisis: the first challenging the assumption of the office of Chief Advisor by ‘President Professor Dr. Iyazuddin’, the second challenging the Chief Advisor’s powers to take decisions unilaterally without consultation with the Council of Advisors, and the third challenging the declaration of the election schedule prior to the correction of the electoral rolls. On the first date of filing the writ petitions, the Attorney General prayed for one day’s time to read the writ petitions and in the meantime met the President later at night. (The next day in the morning, people watched in amazement the breaking news that the Election Commission, with the advice of the President, had declared the election schedule.)

The situation in Court had changed remarkably during the week. By Thursday only the hearing of the first writ had concluded. At the outset, even among those supporting the petitioners many felt that this case had been a real gamble and the 14 party alliance would have to pay a heavy price for the manner in which it had been brought, as well as its outcome. The logic being that the 14 party alliance had, first, left it too late, having however resignedly appeared to concede the President’s assumption of office on 29th October and second, seemingly acquiesced in his various actions as Chief Advisor by meeting him and allowing him to take decisions in the four weeks since then. The AG, Mr. Mohammad Ali, said as much, adding for good measure a third limb to his submissions that the President actions were in any event immune from any judicial review. The presentation of these propositions was surrounded by hours of time-wasting with the AG reading out in full the relevant Constitutional provisions, despite most lawyers, and dare I say it many ‘ordinary people’ now virtually knowing them by heart, after a month of non-stop 24 hour rolling discussions and analysis on the electoral framework and its hop-skip and jump approach to progress. And despite the extreme urgency of the matter, the AG seemed more than happy to delay the conclusion of the hearing for as long as possible (perhaps in another bid to create further facts on the ground which would favour one party, as had so successfully already been done with the Election Commission’s declaring the election schedule before the Court could hear the writ on this matter).

But somehow during the week the case turned around – much of this to do with the eloquent and, to my mind, unanswerable arguments on behalf of the petitioners, that an unconstitutional act does not become constitutional by lapse of time, that the President is not above the law or the Constitution, that the interpretation of Article 58C(1)(f) by which the President assumed the office of the Chief Adviser was self-serving and wrong (counting the dead as alive, and negating the option of choosing among our not inconsiderable citizenry in order to go straight to the option marked ‘President for CA’).

Before the lunch recess on Thursday 30th November, the AG submitted that he wished to file an application for a larger bench to hear the matter, given its constitutional importance, and the Court should therefore not continue to hear the matter. The two judges in Court No. 12 however commented that there appeared to be no precedent for this, and they were minded to issue a Rule and would reconvene at 2pm. Interestingly the AG then submitted – contrary to his  argument that a larger bench was needed for a fuller hearing! – that the judges should reject the petition outright.  It’s important to remember that whatever order the Court would have passed would not have been a final judgment with any binding consequences. A Rule [Nisi] is just the first stage of the case, which in this instance would have involved the Court asking the Chief Advisor to show cause why his assumption of office should not be held to be without lawful authority. So the AG would have had ample opportunity – even if a Rule were issued – to make a full reply, and if this was found cogent by the Court, even perhaps to obtain a judgment in its favour. Bizarrely, the AG was insisting that even this preliminary order not be issued and the matter be rejected summarily. From the AG’s conduct (and that of his cohorts), it seemed as though they felt that the threat of a mere show cause on this matter would bring the walls of this government come tumbling down, and with it the BNP’s carefully constructed electoral edifice. They were shouting and making intimidating gestures pressurizing the court in order to resist even issuance of the Rule and thus to prevent a full hearing of the petitions. I suppose when someone’s gone to so much trouble in designing and semi-executing a blueprint, it is galling to have anything happen which isn’t pre-programmed, however minute the change might be and even more infinitesimal its impact.

While the AG was ostensibly representing the Chief Advisor, it was understandably difficult for most observers to understand this as he was flanked through the proceedings by lawyers who just happened to be BNP MPs and former Ministers (yes Mr. Moudud Ahmed again) and indeed represented by them at a later  press conference (the AG like the other great constitutional office holders, the Election Commissioners suddenly having become rather bashful about media appearances).

This difficulty was further exacerbated when the AG, accompanied by Mr. Maudud Ahmed and others rushed to the CJ’ s home, hotfooting back to the Court with a signed piece of paper by which the CJ had apparently directed that the two judges in Court No. 12 stop hearing the matter with immediate effect. Within minutes the Court rose. Eyewitnesses stated that Mr. Moudud Ahmed then made gestures which some interpreted as threats to the lawyers for the petitioners, and others saw as an acknowledgment of their (the BNP and the Government’s)  ‘victory’ presumably in having pulled off an unprecedented and gross manipulation of judicial process.

It was at this point that the tensions in the Courtroom erupted beyond control. Reportedly Mr Moudud Ahmed led the charge in fleeing the court, and the AG, as well as senior ‘BNP’ lawyers hurriedly left the compound. Within moments, chaos commenced.  Lawyers and litigants were seen crowding the overbridge and the roof while pandemonium raged beneath. Some of the more lasting images screened later that night showed windows of courtrooms and the AG’s office being smashed, young men and boys in T-shirts wielding lathis [sticks] and brickbats laying into a four wheel drive carrying a flag stand with the flag of Bangladesh; the vehicle being set alight, and broken glass littering the corridors outside Court No. 1 (presided over by the Chief Justice, and the apex of our judicial system). Riot police were deployed and lawyers and judges were forced to take shelter in their rooms waiting for the storm to pass. When it ended the Supreme Court Bar Association announced its boycott of the CJ’s Court.

***
As the calls came I held back rising fears and tensions. I hadn’t seen the violence myself, but the descriptions were enough for a sense of devastation that this could happen to the Supreme Court, not just our workplace but the one institution which still remains a bulwark (however battered) for the protection of our basic rights.  At the same time, I felt that the method and manner of procuring the CJ’s stay order constituted the most brazen attack on the workings of the higher judiciary, and on the fundamental right to seek protection of the law in cases of alleged violations of rights. As such it would surely be the ultimate demonstration for those still intent on seeing no evil and hearing no evil regarding the immediately departed coalition government’s actions in seeking domination over the Supreme Court itself (admittedly building on such interference by other administrations – a story for another day) and indeed of its domination of key constitutional posts including those of the AG and CJ.

And it seemed that finally the CJ’s role in running the Court at the behest of what we politely like to call ‘certain vested interests’  would be exposed to the country at large, and not remain an open and shameful secret for lawyers alone to suffer. As Rokonuddin Mahmud put it, ” ‘manoniyo prodhan bicharpotikey amra boltey chai –apni ar manoniyo na, apni amader ‘prodhan’ na, ar apni kono bichar koren nai’. [We want to say to the Hon’ble Chief Justice, you are no longer honourable, you are no longer our chief, and you have not done justice”].

***
But I’d forgotten the two Ms and their marvellous magical ability to turn black to white, day to night, and wrong into right. And of course truth into lies.

And I’d forgotten the potency of images, and the weakness of mere words. So throughout the evening and the night, the day’s events (re-edited) flashed relentlessly over the screen on multiple television news programmes and their accompanying commentaries, showing in full technicolour the mayhem in the Court compound, the brickbats on the car window, the shattered glass on the floor, the burning ball of newspaper lying on the front seat of former Minister Mr. Shahjahan Omar BU’s four wheel drive, and finally lathi]wielding unknown young men (clearly neither judges nor lawyers themselves) laying into everything in sight, as well as the SCBA (Supreme Court Bar Association) members giving their responses announcing their protest programme.

But where were the BNP leaders? All gone to tea! No really. With the former Prime Minister in the glitzy China/Bangladesh Friendship Centre, of course, with its cream coloured carpets and the Madam in her usual gilded and carved ‘throne’ involved in a national exchange of opinions for lawyers including not only the golden oldies but also, the new generation of clean-cut young men and women (several already significantly reported to have benefited through clients and contracts gained through ministerial parents and in-laws).

Several of those among the cast of characters in Courtroom 12 only hours earlier  were now sitting in silence on the podium, gazing gravely into the middle distance. For a deluded moment, I thought that they were about to express regret for the part they had played in the pandemonium that occurred, and in contributing further to destroying the image of the Court as a place above prejudice, bias, and impartiality. But no, they or rather the Madam were actually, in all seriousness, calling for action against ‘the party which had caused such violence and treated the Court with such disrespect’. The latest twist in the tail or the mega-mendacity proffered being to claim that the lawyers for the petitioners were responsible and that action should be taken against them! With, of course, no mention in all this shrill name calling of how its not only broken windows and burnt cars – which are utterly condemnable —  that amount to disrespect, but also  acts such as the obtaining of the very stay order that precipitated the violence, and left the authority of the High Court judges in tatters, and denied the people the opportunity of a hearing .

As the news continued to roll, it focused more and more on the scenes of violence, contrasted with these exhortations. But of course there were no images of the AG (supported by senior BNP MPs) obtaining an unprecedented order from the CJ. Nor were there pictures of their ‘submissions’ which resulted in the order they got. Nor of their cold-bloodedly tearing up some of the agreed conventions which enable the functioning of the process of justice, however flawed – of  non violent, peaceful thoughtful and rational deliberation over certain questions raised and their authoritative determination – in their continuing desperation to un-level the judicial (and ultimately electoral) playing field.

****
Almost exactly sixteen years ago, in our own jamdani or perhaps kantha revolution of 1989, during the last few days of the anti-Ershad movement, when the area between Paltan to the Press Club turned into a non-stop 24 hour singing fiesta, with songs and slogans reverberating into the early hours, I remember standing with thousands of others roaring out the classic anthem against injustice and abuse of power ‘bicharpoti tomar bichar korbey jara, aaj jegechey shei jonota’ [those who will try the judges, they have arisen today]. Then I kept wondering how to adapt the words so that they’d be more appropriate eg. Shoirachar tomar bichar korbey jara… etc [those who will try the dictator…]. With hindsight, of course, we should have also thought about the dictator’s sidekicks and how they would reinvent themselves in the present….

Today, when there’s again a movement for democratic change albeit with very different parameters, it’s time to re-appropriate that song again, with a minor clarification – ‘Prodhan bicharpoti tomar bichar korbey jara, aaj jegechey shei jonota’. [….. Justice, those who will try you, those people have arisen today…]

This time they mustn’t get away with it.
Sara Hossain
3 December 2006

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