Lawyers' boycott is for an independent judiciary

The manner and method in which the judges of the Superior Court have not been confirmed and most senior was not even considered has struck at the very root of the independence of judiciary. Those who now question the call for the boycott earlier misled the same Prime Minister in 1994 to unilaterally appoint judges without proper consultation that has been practiced as an unbroken convention since the British rule. On protest from the Bar the convention of consultation and primacy of the opinion of the Chief Justice were restored on the intervention of the same Prime Minister. Since the present government came to power, the same people again misled the Prime Minister to break the constitutional convention to compromise the independence of judiciary.

Over and above, there is an attempt to amend the Bar Council Act without consulting the Bar Council to make the Bar Council subservient to the wishes of the government by introducing arbitrary and mandatory provisions thereby destroying the edifice of an independent bar and the autonomy of the Bar Council. Such steps are designed not only to undermine the independence of the Bench (Judges) but also to control the Bar.

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As a consequence of such actions and designs initiated from this ruling quarter, the Bar Associations including the Supreme Court Bar Associations of the country started boycotting the Court as the government has failed despite all our attempts to see the reason.

A six-point demand/programme was compiled by elected representatives of the Bar Association and elected members of the Bar Council as democratic elected leaders of all the lawyers across the nation. It is to be noted that the six-point demand/ implementation committee is much larger than the Bar Council as well as independent and separate from it. Bar Council, as an autonomous body adopted in its extended meeting the six-point demand/ programme of the six- point implementation committee and further reiterated the same on 18th July.

In similar manner, a movement was launched against the Court fee hikes last year. It is the lawyers community as a whole who took such decisions in an organised, democratic and orderly manner as was done on previous occasions. Bar Council acted merely as a facilitator to such meetings so that the entire Bar including all the District Bar Associations can speak in one voice on the basis of a consensus reached through reasoned deliberation by the elected leaders of the Bars. Thus the decision to boycott is not a decision made or imposed by the Bar Council per se, but rather reached by way of consensus amongst all the individual Bar Associations across the country, whereby every District Bar Associations took their own respective resolution accordingly to that effect.

Certain individual District Bars made demands and proposed action plan which were much more stern and drastic than the consensus view ultimately reached. The role of the Bar Council was purely as that of a facilitator amongst the lawyers community to reach unity.

A particular group, due to whose moves and designs the judiciary is being politicised does not like the united voice of the Bar. As they know that such unity will thwart the present style of governance, which is not the rule of law but rather the rule of thumb. We are therefore upholding the unity of the entire lawyer's community, irrespective of party political affiliation.

The lawyers being a conscious segment of the society committed to Rule of Law, independence and separation of judiciary, will naturally resist any meddling by or interference from the government into the affairs of an independent and fearless Bar. They can not be misled or confused by the divisive narrow and parochial move from this group who are bent on destroying the unity amongst all the Bars as well as the unity between the Bar and the Bench in the question of independence and separation of the judiciary.

Let us not forget for a moment that the petitioners in the landmark Masder Hossain case for the cause of the separation of the judiciary were in fact 218 judges of the sub-ordinate judiciary itself. The separation and independence of the judiciary as well as preserving an independent Bar are of grave Constitutional significance which is above and beyond any narrow party interest to control the Bench or the Bar.

This boycott by the lawyers is a protest against such meddling and interference by the government in matters which will have negative ramifications and consequences in achieving good governance, rule of law or democracy.

Whereas any democracy presupposes participation by the concerned people/group in the decision making process in matters that affect them in recent times, there has been no participation or consultation of any manner however, by or with the Bar or the Bench in matters that directly affect them. This is yet another malfeasance to disempower such independent institutions...... which plays a meaningful role in the scheme of 'check and balance' of power structures in any system of democratic governance. Rather than strengthening such institutions the Executive organ is even seeking ways and means to overpower and control the Judicial Organ of the Republic.

The Bar Council, the Supreme Court Bar association and all the district Bar Associations have amply demonstrated to the Nation at large through their democratic methods and practices how to work, achieve and ensure participating democracy in the decision-making process by their members and stakeholders in matters that affect them.

Rather than belittling such democratic norms and practices, the political Executive power may wish to take a lesson or two from the community of the lawyers as to how to ensure participation and consultation in the decision-making process by all concerned who are likely to be affected by a decision.

This group have not responded to letters, memos, initiatives of the Bar Council, Supreme Court Bar Association and others. They failed to respond and meet the Senior Advocates including Dr. Kamal Hossain, Late Syed Ishtiaque Ahmed, Dr. Zahir and others.

Their letters were not even acknowled-ged, not to speak of responding to those as is expected in any democracy. We have been waiting on a deputation to the Law Minister, every week organising human chain, holding meetings in every Bar Association and sparingly resorting to court boycott, but alas no response.

Lawyers are pledge-bound and under oath to defend and uphold the Rule of Law and independence of judiciary and that of the Bar and the Bench and, of course, of the Constitution. They have, therefore no option but to carry on this burden. This situation has been created not by the lawyers or judges, but due to misguided and ill advised caucus dreaming of establishing a autocratic regime with a totalitarian control in all offices. We as lawyers and citizens of this country abhor this anti democratic attitude and exercise our right to dissent causing the least possible inconvenience to the litigant people. If there were at all any inconvenience, it is not at the instance of the lawyers, but in order to remedy the wrong committed by the political executive power, so that the litigants, vast majority of whom are seeking remedy against the Executive actions, can get fair justice from an independent, nonpartisan, courageous and competent judiciary ably assisted by an independent and fearless Bar.

M. Amir-Ul Islam is Vice-Chairman of Bar Council.