Delayed, for how long?

Judges, one after another, felt embarrassed and were reluctant to hear the case. Besides the government has been appointing those judges to the Appellate Division who had earlier felt embarrassed in the High Court.

One wonders why the judiciary has not been able to find sufficient number of judges to hear the murder case for years. The long-drawn Bangabandhu Murder Case is not likely to resume until March 2007; especially after the parliament amended the constitution to extend the retirement age of Supreme Court judges by two years. The case, suspended since August 2001 for shortage of one judge, was supposed to resume in March 2005 with the elevation of a judge to the Appellate Division after retirement of Chief Justice JR Mudassir Husain. With the provision of age extension, Chief Justice Mudassir, who was supposed to retire on March 1, 2005 will now do so on March 1, 2007.

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The Appellate Division needs at least three judges to form a bench to hear the case, which can only be formed after the Chief Justice retires. Five of the seven-judge Appellate Division cannot hear the case now, as they have already heard the case in the High Court or felt embarrassed to hear the case at different times.

Justice Ruhul Amin and Justice Mohammed Fazlul Karim heard the case in the High Court and Justice Mudassir, Justice Amirul Kabir Chowdhury and Justice MM Ruhul Amin expressed embarrassment.

The Appellate Division now has only two judges -- Justice MA Aziz and Justice Tafazzul Islam -- who did not express embarrassment nor did they hear the case in the High Court Division or Appellate Division.

The murder case was filed on October 2, 1996, 21 years after the assassination of Bangabandhu Sheikh Mujibur Rahman and most of his family. The trial court gave the verdict on November 8, 1998, handing down capital punishment to 15 retired and sacked army men. The High Court upheld the punishment of 12 with only four of them now in jail. The four filed petitions for leave of appeal with the Appellate Division against the High Court verdict.

The case has also faced delay after the most senior judge of the High Court Division of the Supreme Court was superseded by his junior in the appointment to the Appellate Division. Had the government followed the line of seniority in appointing the judge, the hearing of the case might have taken place in February 2004. The judges assigned no reason why they felt embarrassed frequently.

For 21 long years the trial was barred by an executive order, which was later legalised through parliament. Still, there is no other instance in world history where the killers of a head of state were indemnified by law. The infamous Indemnity Ordinance was finally scrapped in 1996.

Though, scrapping of the ordinance paved the way for holding the trial, legal tangles are obstructing the trial process of one of the most brutal killings we have witnessed. It is not only unfortunate for the nation and the judiciary, but also unacceptable.

Still, a solution can be reached if the government decides to appoint a judge on an ad hoc basis to the Appellate Division. If that happens, the hearing can resume even today. But it solely depends on the government's willingness whether they actually want to complete the trial. The indication is that the present government is not willing to do so. Law Minister Barrister Moudud Ahmed has already ruled out the possibility of any such appointment.

In October 2001, the then Chief Justice Mahmudul Amin Choudhury wanted to have a judge in the Appellate Division appointed on ad hoc basis and suggested the government do so, but he didn't get a positive response. "If you do not 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," he said later.

One may call it a coincidence, but the fact remains that the hearing of this case has not taken place for a single day since the BNP-led government came to power. Maybe the government does not want to continue the case for political reasons. But why are the judges showing their unwillingness to hear the matter? Why are they feeling embarrassed without giving any reason although a judge should make know the reason for the sake of justice and transparency? These are questions often raised by the people.

There might be logical grounds for a judge to feel embarrassed. However, if a judge feels embarrassed just to avoid any political controversy that might arise afterwards, he, in fact, denies justice. Moreover, if a pattern of embarrassment is developed on a particular case, the ultimate end of justice will not be served.

Former chief justice and ex-chief advisor to the caretaker administration Latifur Rahman, in his book on his time as the head of the caretaker government, said 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 were unwilling to hear the case, and in doing so, 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.

Former chief justice Mostafa Kamal told the BBC on March 27, 2002, "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".

Unfortunately these judges do not bother to assign the reasons for their embarrassment, although a judge should inform the reason for the sake of justice and transparency. The judges while taking oath pledge to discharge their responsibilities as per law and with total faithfulness. He says on oath, "-----and that I will do right to all manner of people according to law, without fear of favour, affection or ill-will." The question is -- are they doing it?

What has been more than apparent in recent time is that the case has been viewed more with political consideration. Such unfortunate attitude on the part of the government would only fuel antagonism. The government must realise that delaying the case indefinitely would only increase the risk of losing public confidence, not only in the government but also in the judiciary. Meanwhile we continue to keep our fingers crossed.

Zayadul Ahsan is Chief Reporter, Special Affairs of The Daily Star.