A judge cries for justice

Sheikh Jahangir Hussain, a speedy trial tribunal (STT) judge reportedly sought justice and protection in a lengthy letter to the CJ. Nothing like this has ever happened in the history of the judiciary of Bangladesh, or perhaps in the sub-continent. The STT judge complained of undue pressures on him brought by two public prosecutor (PPs). The judge cited specific cases in which the PPs allegedly requested him to do certain acts, which the judge had declined. The STT judge, for instance, alleged that Mohammedpur Thana case number 6 of May 5, 2000, was transferred to him for disposal by the Sessions Judges (SJ) Dhaka. The documents of the case were allegedly delayed by the PPs when these were on the way to his court. Thereafter, the PPs, it is alleged, requested the STT judge to send the case back to SJ. This, the STT judge declined to do, on grounds of lack of jurisdiction.

It was further reported in the press that in the sensational murder case of Haris Ahmed, the PPs allegedly concealed the confessional statements of two significant witnesses for the prosecution. The other allegation against the PPs is that one of them saw the STT judge in the chamber with a request to see the documents of a hearing number 4/2000. The STT judge conceded to his request. The PP then requested the judge to grant bail to the accused persons involved in the case before Dhaka 10 by-poll. The STT judge declined, saying that the matter would be disposed of in accordance with law.

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The other side of the story

The other side of the story is contained in the statements of the PPs which appeared in the press. The PPs accused the judge of leveling "false and imaginary allegations" against them. They also reportedly threatened to sue the judge for civil and criminal liabilities.

The action taken

From what has so far appeared in the press, it is found that the judge had written to the CJ as well as to the Secretary, Ministry of Law way back in May. Nothing happened except that he was transferred to Barisal on June 13, 2004. His grievance petition having failed to get any response, the judge took the most desperate course of filing a writ petition in the High Court division against his transfer.

Reactions from the bar association

Reacting to the writ petition by the judge, the president of the Supreme Court Bar Association made a number of comments. Most of the comments are couched in carefully selected words with profuse use of 'ifs'. This has to be so because of (a) the highly sensitive nature of the case and (b) the entire matter is pending consideration of the High Court. However, one of the substantive statements deserves to be mentioned. The Bar Association chief asserted that if the Supreme Court had started investigation under relevant provisions of the constitution consequent upon the letter of May 30, 2004, the issue would not have surfaced in public and tarnished the image of the judiciary.

The image of the higher judiciary appears to have come under public gaze. In fact, the image of subordinate judiciary, in particular that of the magistracy, has been questioned time and again in the recent past. Then came the tier immediately above at the district level. Then came the famous case of an additional judge of the High Court who was recently removed on grounds of conduct unbecoming of a judge. In addition, there were many press reports in not too distant past that accused the government of selection and promotion of judges in the Supreme Court on political rather than on grounds of fairness and justice. Viewed in this context, the Supreme Court perhaps has an obligation to satisfy the principle of citizens' right to know. The citizens would like the Supreme Court to respond to the wake-up call.

Reactions from the government

The Law, Justice and Parliamentary Affairs Minister rejected the version put forward by the aggrieved judge. He termed the grievance petition filed by the judge to be politically motivated. Such a statement may well be questioned on the ground that independent investigation has not been carried out to support such a contention. It is said that the judge was transferred on "administrative grounds." Should a judge be transferred on 'administrative grounds' when the judge had brought to the notice of both the government as well as the Supreme Court about the administrative difficulties he was facing in discharge of his duties in accordance with law? In similar circumstances, perhaps two or three decades ago, the PPs would have been relieved of their duties on an official report from the judge. How fair the investigation will be may well be in doubt in view of the opinion already expressed by the Law Minister.

Who appoints the Pps

The PPs are appointed by the government. However, there are established procedures for such selection. This procedure is outlined in the Legal Remembrance's Manual (LR Manual). The prescribed procedure requires that the Deputy Commissioner (District Magistrate) writes to the SJ seeking his nomination of candidates that appear in his opinion best suited for the position of PP and on the civil side, a Government Pleader (GP). The nomination so made is not normally interfered with by the Deputy Commissioner because it is the SJ who is more familiar with the quality, conduct, and integrity of district level lawyers. The proposal for appointment based on SJ's recommendations is then sent to the Law Ministry and appointments are then notified.

Reactions of a former chief justice (CJ)

There is widespread public perception that the above procedure is not followed in letter and spirit, but selections are made on political rather than on grounds of merit. This imprecision has been confirmed by a former CJ. He is quoted to have said:

"The PPs and GPs are appointed on political considerations. They change with the change of government. The judges are expected to discharge their judicial duties impartially, but in such an environment can they freely do so?"

The last part of the statement appears to be an implicit reference to the instant case. The existing CJ, as reported in the press, seems to have echoed the views expressed by a former CJ already mentioned. He said that "judicial independence means freedom from improper pressure by any quarter in the decision-making process."

At the end of the day, various reports which had so far appeared in the press raised lot more questions than they had answered. Some of the substantive questions raised may be restated. First, what prevented the Supreme Court from acting on the petition of complaint of May 30? Who has the final authority to approve transfer of judges at the district level, the government or the Supreme Court, or both? What can the higher judiciary do to ensure fair and unbiased selection of PPs and GPs and their appointment? What more checks and balances are required for free and fair selection of judges in the higher judiciary? What can and should be done to strengthen the independence of the judiciary as well as its accountability?

These and other related issues need public scrutiny by an impartial body with participation from the civil society members. The working of the constitution as it relates to the three organs of the state has to be subjected to impartial and unbiased scrutiny by independent professionals. Some of the newspaper columns which appeared in the press in the recent past have drawn attention to the need for public scrutiny of the working of our constitution. Can this be done to ensure a better tomorrow for Bangladesh? No one wants to see anybody, least of all a judge, cry for justice.

AMM Shawkat Ali, PhD, is a former Secretary, Ministry of Agriculture.