Inner message of bulldozing the judges

The entire nation is horrified to see that the two High Court judges ABM Khairul Haque and ATM Fazle Kabir are confronting dishonour and harassment, in the name of providing unsolicited protection, from the intelligence men at residence as well at the court.

The trouble started following their delivering the historic verdict in the High Court bench on 30 August 2005 declaring the fifth amendment to the constitution illegal terming the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem, Maj General Ziaur Rahman from 15 August 1975 to 09 April 1979 as unlawful.

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The verdict was hailed by almost all legal experts except those BNP partisans. In the legal history of Bangladesh it may stand out as a milestone. Containing 22 observations the judgement stated that the constitution is the supreme and inviolable. No institutions -- the executive, judiciary, legislature -- are above the constitution. They cannot subordinate it. Promulgation of martial law is unlawful. The constitution cannot be brought under the purview of martial law. Those who declared martial law are violators of the constitution. The verdict observed that the inviolability of the constitution was affected from 20 August 1975 to 09 April 1979.

It may be noticed that this is not the first time that the court delivered verdict against the martial law and its ordinances. Martial law administrator HM Ershad set at least six High Court branches in six divisions violating the unitary character of the state. The lawyers filed writ against it and the High Court set aside the martial law ordinance approving setting up of those High Courts.

During Pakistani regime the upper court of Pakistan declared the act of dissolution of parliament by Ghulam Mohammad as illegal. In a similar verdict in 1975 the chief justice of Pakistan Hamoodur Rahman declared the capture of power by Ayub Khan and Yahya Khan as unlawful.

But nowhere in the above cases the judges concerned were subject to harassment and intimidation of the like as being experienced by our judges Khairul Haque and Fazle Kabir.

The obnoxious game of psychological torture exerted on the two judges went on increasingly. The next day the judges had to get down from the court, then engaged in hearing cases, to attend the call of the SB police due to their repeated aggressive insistence. Requests from the judges either to leave the message of the intelligencemen with the registrar of the High Court or to wait for some time to end the hearing were not complied with. The government agencies pretended to argue on the priority of the security of the judges who were offered 'gunman protection' but it is alleged to be a ploy to get on the nerve of the judges. The judges rightly refused that offer.

The attending lawyers of the court Barrister Rafiqul Haque and Barrister Rokanuddin Mahmud got agitated at the highhandedness of the DB men and urged the judges not to leave the court on the insistence of the government agencies in the middle of hearing to uphold the dignity of the judiciary. Does it not constitute an indiscreet act of the government to offer a discreet ground to the sensitive community of lawyers to agitate against the government trying to undermine the prestige of the judiciary?

This verdict broke like a storm. The Prime Minister Begum Khaleda Zia learnt about it at 9pm while presiding over a cabinet meeting. All on a sudden she flew into a rage expressing grave dissatisfaction with the law minister and other officials of the ministry. Practically they were not also aware of what judgement was passed because neither the case was anyway sensitive nor the verdict was delivered long hours before. But the prime minister perhaps got terribly allergic as the verdict touched the name of president Zia.

The law minister faltered this time to sense the impending danger. There was a second cause gaining momentum day by day. Begum Khaleda Zia rightly thought out that the verdict could shake the very foundation of the Bangladesh Nationalist Party and affect the vote potency in the next national polls.

On her insistence it is in inordinate haste that the appeal to quash the verdict was filed before the chamber judge almost at midnight and the stay order came out when it was just ten minutes to 12 midnight. The following day the full bench of the appellate division of the Supreme Court stayed it for two months from operation.

What badly ails our governments is their peculiar and pervert psyche that everyone and everything, no matter who or what it is, even not bothering about the judiciary, should go their own way. That is why the tentacles of politicisation have spread over the institution of judiciary too. Inducting judges in the higher judiciary on party affiliation ignoring candidates' qualifications and efficiency are but natural outcome.

The higher judiciary stands sharply divided between lawyers pro-government and anti-government. It has turned out to be a cockpit for the two conflicting groups despite constraints as ordered by the High Court. The newspapers headline hot preparation of the two for a legal battle over the fifth amendment to the constitution.

The political implications of the verdict are great and far-reaching. It may pave way for the restoration of four basic principles of the state as envisaged in the constitution of 1972. Some of them were clipped by amendments to the constitution by the martial law administrators. The anti-government lawyers will be all out to uphold the verdict.

On the other hand the pro-government lawyers view that the verdict will break the continuity of the constitution. They argue that decision on the four principles of the state has already been finally made and the people have accepted it. The verdict will destabilise the country. It cannot be accepted. It is obvious that if the verdict prevails the BNP politics will receive a severe jolt. So they are desperate to set aside the verdict.

It is not that the BNP leadership does not understand how indecently and excessively the intelligencemen behaved, under the guise of providing security, with the two judges of the High Court. In fact it is universally condemnable falling within the ambit of contempt of court. Amusingly, the law minister has come forward to regret the incident obviously to give an eye wash. The exercises at bulldozing those judges probably convey an inner message to the judges of the higher judiciary asking them to remain obliging to the ruling party or face dire consequences. In reference one eminent lawyer of the country pointed out that one chief justice of Uganda awarded a verdict against the dictator President Idi Amin. The hapless chief justice was kidnapped only to offer his dead body a few days later in a park. Of course, we do not believe that such disaster will befall the nation.

AR Shamsul Islam is retired Principal, Govt Mohila College, Pabna.