Trails Of Trial

Worse still, the BNP-led four party coalition government has yet to appoint judges on an ad hoc basis to the Appellate Division; something badly needed to finalise hearing of the case. Consequently, nobody knows when the hearing will resume and the killers of August 15, 1975 punished.

For 21 long years the trial was barred by an executive order, which was later given legal cushion by the parliament. There're scarce instances in history that killers of a head of state are indemnified by law from trial.

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Although the infamous Indemnity Ordinance was finally scrapped by the parliament in 1996, legal tangles have complicated the trial process. This is really unfortunate for the nation and more so for the judiciary.

In fact, as the following facts indicate, the case has thrown a tough challenge before the judiciary.

Upon the filing of the case in October 1996, a trial court pronounced in November 1998 the verdict of the case and the High Court (HC) Division of the Supreme Court confirmed the death conviction in April 2001.

Ever since, there has been no headway. Four benches of the HC declined to hear the death reference and the appeal, prompting the then Chief Justice Latifur Rahman to intervene. Yet, three more judges expressed embarrassed so far.

After crossing many hurdles at the HC, the case moved to the Appellate Division only to get stuck again in a protracted legal limbo.

In August 2001, a judge withdrew from the case expressing discontent with the provocative statement made by lawyers of a convicted accused. Justice Golam Rabbani of the Appellate Division maintained that he felt embarrassed by the lawyers' demand to reconstitute the division, as they found it prejudicial to make submissions in his presence.

The petition said, as a High Court judge in 1999, Justice Rabbani admitted the appeal prayers of the case. Following that, two defence lawyers left his court amid an in-court altercation. The court, however, rejected the defence objection and reprimanded the lawyers of convict Bazlul Huda for making such allegations and sensationalising the issue through media.

Then, Chief Justice Mahmudul Amin Choudhury adjourned the hearing till October 2001, saying Justice Rabbani had decided to withdraw from the hearing due to what he called 'merely doing justice is not enough, it must be seemed to have done.' The case did not proceed further ever since.

The Supreme Court rule stipulates that a bench composed of minimum three judges is needed to hear an appeal. But, the leave to appeal petition could not be heard even after increasing the number of the Appellate Division judges to seven from five. Two new recruits also felt embarrassed. Surprisingly, the Appellate Division could not gather three judges to hear this historical case.

That aside, two of the judges who felt embarrassed to hear the appeal did hear another petition by one of the convicts for recalling an order that was mistakenly issued and for which the convict had no recourse but to undergo gallows.

The judges' going to retirement, being replaced and feeling embarrassed have become a three-dimensional crisis in the trial of this historic case. If the trend persist, it would not be possible to constitute a three-member bench in the Appellate Division before the retirement of the incumbent chief justice on January 27, 2004.

A new twist was added to the ongoing saga by the government's recent decision to appoint a judge superseding another. The move is viewed by many as a measure to stall the proceedings further.

The justice seekers, hence, will have to wait until 2005 for a three-member Appellate Division bench to hear the case; that too, if no other judge expresses embarrassment like their peers. The case is unlikely to be heard again before March 2005.

A likely solution would have been the government's decision to appoint a judge to the Appellate Division on an ad hoc basis. This would have enabled the resumption of hearing right away. Law Minister Moudud Ahmed already ruled out any possibility of such an appointment.

In October 2001, former Chief Justice Mahmudul Amin Choudhury wanted to have a judge appointed to the Appellate Division on an ad hoc basis, but he did not get his wish fulfilled.

"If you don't want to continue with the case, then do let us know, please... I don't get it why every government tries to pull the trigger resting the gun on the shoulder of the court," Justice Choudhury observed at that time.

The present Chief Justice had felt embarrassed to hear the case while he was a judge in the Appellate Division. His reason reportedly stemmed from the fact that two of the convicts were his relatives.

In the case of the other judges being 'embarrassed', no specific reasons have been cited.

A judge may well have valid reasons to feel embarrassed. But the impression could be that some of the judges may have felt embarrassed just to avoid being dragged into political controversy. This may sound plausible when it relates to a case like that of Bangabandhu and no specific reason is cited as the ground for being embarrassed.

Former Chief Justice and Chief Advisor to the caretaker administration, Latifur Rahman, wrote in his book (titled, "The days of caretaker government and my say"), that when most of the senior judges felt embarrassed to hear the Bangabandhu Murder Case, the (Supreme Judicial) Council was of the view that the judges are unwilling to hear the case, and in so doing, avoiding their responsibility.

"I've even seen that when the hearing of the case was about to end, the judge going by the words of lawyers would often feel embarrassed to hear the case without assigning any specific reason," he added.

Another former Chief Justice, Mostafa Kamal, told the BBC Radio on March 27, 2002 that the case had repeatedly been stalled due to the judges' feeling embarrassed.

"This is an important case which has political implications, and no judge wants to get involved in politics... but ultimately the judges have to be bold enough to deal with the issue," he observed.

It is a moral debt we owe to the nation, posterity and the rule of law that the perpetrators of such a heinous crime are punished.

The onus rests with the judiciary to show boldness in relieving us of the burden on our national conscience.

The writer is a senior reporter of The Daily Star.