Appointment as Chief Justice of Bangladesh | A BROKEN DREAM | Status of Rule of Law, Human Rights and Democracy

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About three months before the date of retirement of Justice Md. Mozammel Hossain, various stories were circulating regarding the appointment of the next Chief Justice. Shamsuddin Chowdhury was trying hard to become the next Chief Justice and the other speculation was that Nazmun Ara Sultana, having been the first lady Judge as Munsif, District Judge, Judge in the High Court and the Appellate Divisions, was a possible choice as the Chief Justice. Even i that came to pass, I would have a chance of becoming the Chief Justice after her retirement. Moreover, the Prime Minister and the Speaker being females, the Prime Minister could show to the world that three branches of the State are headed by females in Bangladesh. It would be a historical event as nowhere in the world there was such a coincidence. Shamsuddin Chowdhury was scampering from earth to heaven for his selection. Even that if that happened there was also a likelihood of my becoming the Chief Justice as he would retire before Nazmun Ara Sultana.

On the other hand, Md. Abdul Wahhab Miah was very anxious about such rumors. Although he knew that he would not be chosen for that office, his apprehension was that if those judges were appointed, they are being junior to him, he would have no other alternative but to resign. But in case of my appointment, he would continue till my retirement on January 31, 2018. Accordingly, he was repeatedly requesting me to contact the Prime Minister and other policy makers so that I was not superseded. I told him that, I did not know whether I would be appointed to the office, but I am sure that Shamsuddin Chowdhury would not be taken into consideration for the office of the Chief Justice for he was not at all competent to occupy that office. Additionally, the Prime Minister was mature and competent enough to know right from wrong. She would not choose the junior most judge of the court as the chief justice. I also told him that I am the last person to approach on my behalf to occupy the exalted office.

It may be recalled, the conduct of Shamsuddin Chowdhury was beyond the control of the Chief Justice, when he was in the High Court Division. On different occasions, his Bench was changed and even then, he was passing orders recklessly against public servants and issued contempt rules without just cause and directed them to appear in person in court. He kept them standing throughout the court hours and then adjourned the matters. The government was also embarrassed by his conduct. While sitting in a writ Bench, he interfered with pure and simple criminal matters ignoring the grounds of the constitution of his Bench which was not authorized to adjudicate on those matters. On one occasion I persuaded the Chief Justice to change the constitution of the bench. Ultimately finding no other alternative, the government thought that he should be elevated to the Appellate Division so that he would not be able to pass such orders since he was the junior most judge and would have no such authority.

About his appointment, there was an interesting story. Though he had close friendship with Chief Justice Mohammad Mozammel Hossain, the latter did not recommend his name. As per provisions of the Constitution the President shall appoint the judges after consultation with the Chief Justice. the President appointed him without such consultation, when Shamsuddin Chowdhury was in London. The appointment was displayed in the TV scroll. On noticing the action of the government, the Chief Justice contacted the Law Minister saying that his name should be dropped. Shafique Ahmed, the Law Minister, wanted my advice in this regard. I told him not to worry about it, and instead to inform the Chief Justice that the government was thinking seriously about the amendment of Article 96 of the Constitution for removal of the judges of the Supreme Court by a resolution of supported by most two-third members of Parliament on the ground of proven misbehavior or incapacity. As a matter of fact, former Chief Justice Khairul Haque, Suranjit Sengupta MP and some other MPs were seriously pressing the Prime Minister to introduce such a provision by amending the Constitution. Murad Reza, the Additional Attorney General, who oversaw the Attorney General’s office as the Attorney General was out of the country, rushed to my official residence and intimated me that serious complications would arise if the Chief Justice was not eager to accept Justice Shamsuddin Chowdhury. I told him that I already had advised the Law Minister in this regard. Despite that I along with Murad Reza was trying to contact Justice Shamsuddin Choudhry in London to return immediately. After finally collecting the contact number from his wife we called him and advised him to return to Bangladesh on the next available flight. Murad Reza and I told him the reason and he assured us that he would try. But in the meantime, we got a message that the Chief Justice, frightened by the news of the possibility of a constitutional amendment after having been informed by the Law Minister, called the latter declaring that he had no objection to the appointment of Shamsuddin
Chowdhury.

I was clear in my mind that anyone amongst Nazmun Ara Sultana or Syed Mahmud Hossain might be appointed Chief Justice if the Prime Minister did not feel comfortable to appoint a minority member of the community in a Muslim majority country. I had also definite information that the Prime Minister was willing to recommend my name but was seriously weighing the impact of the appointment of a member from a minority community as the Chief Justice of Bangladesh. I, however, felt that under the circumstances then prevailing in the country, there was no reason on her part not to appoint me as the Chief Justice. I had also decided that if I was not selected, I would step down immediately. But I did not disclose my feelings to anyone. Meanwhile though, Abdul Wahhab Miah was so anxious that he was pressurizing me every alternate day to maintain a liaison with the hierarchy so that my name was recommended. I told him in clear terms that I was the last person to request anybody in the selection of a candidate for the exalted office. But I assured him that in no case Shamsuddin Chowdhury would be appointed.

Ultimately about seven days prior to the date of retirement of Mohammad Mozammel Hossain, Law Minister Anisul Haque wanted to meet me at a secret location. I told him to come to the Judicial Service Conference Hall which was just the right place for such a meeting. Accordingly, in the late afternoon the Law Minister came and congratulated me on my selection as the next Chief Justice of Bangladesh, telling me that it was decided in a meeting in the Bangabhaban with the President, the Prime Minister and himself. I kept the matter concealed, but the following day there were strong rumors that Shamsuddin Chowdhury would be appointed as Chief Justice. On hearing the rumors, I was laughing to myself; but the more the rumors spread the more concerned Abdul Wahab Miah became. I noticed that he could not concentrate his mind in the administration of justice. One day I sternly urged him that he should give attention to his work and should not pay heed to rumors. If destiny favored me, I would be selected as the Chief Justice, but assured him that Shamsuddin Choudhury had no chance even for consideration as a prospective candidate. Under the constitutional mandate it is the President’s power to select and appoint the Chief Justice. But in
Bangladesh the President is holding no power at all. It was not only during that period but had been all along after the presidential system was abolished. Wahab Miah left my chamber with a broken heart. As always, a day or two before oath-taking was to take place, it was published in the media that I had been selected as the next Chief Justice of Bangladesh. Accordingly, I took oath of office on July 15, 2015. It was a historic moment because no member of any minority community had ever occupied such an exalted office in a Muslim-majority country in the world.

As a convention, on the day of taking the oath, a felicitation for the Chief Justice is held. I had fixed the time at 10:30 AM for the purpose. It was a memorable occasion. I also realized that irrespective of the political polarization, all lawyers would join in the felicitation, although on the last five or six occasions, only a fraction of lawyers of the ruling party attended the occasion. It was for the first time the lawyers of the AL, BNP, Jamaat and Ganotantrik Forum attended. Courtroom number one was packed and left with no space inside the room, many lawyers were standing on the western and southern verandahs of the building. Therefore, I directed to my Registry to arrange extra chairs outside the courtroom and speaker so the lawyers there could hear the proceedings.

In reply to the felicitations, I told the lawyers that my priority would be to reform the judiciary. Among first actions:

  1. Judicial reforms;
  2. Ensuring the utilization of courts allocated full time in judicial work, i.e. sitting in court and rising according the agreed time;
  3. Digitization of the entire Judiciary;
  4. Bringing discipline to the Judiciary;
  5. Restoring public confidence in the judiciary;
  6. Making the Judiciary function without interference from the Executive;
  7. There would be no mentions in court and no fixation of any matter for early hearing while cases would automatically be listed in the daily Cause List based on the order of the judge -in- chamber;
  8. Curtailing holidays of the Supreme Court;
  9. Signing judgments and orders expeditiously not later than six months from the date of delivery;
  10. Increasing the court rooms and the number of judges.

It may be mentioned that during my predecessor’s tenure the court wasted about one and half hours every day. That is, though the time for the sitting of the court is 9:00AM, the court usually sat at 9:30 to 9:45AM. And again, after a recess, the court was scheduled to sit at 11:00 AM but we usually sat between 11:30 and 11:45 AM and rose at 1:00 PM in place of 1:15 PM. I had performed the functions of the Chief Justice many times when Chief Justice Md. Mozammel Hossain was away from the country. But when I wanted to sit in court on time Justice Abdul Wahhab Miah prevented me, saying that when I would be the Chief Justice, I would fix the time table, but the old system would be followed till the retirement of Chief Justice Mozammel Hossain. Other judges remained silent, meaning they were supporting Abdul Wahhab Miah’s view. So, I could not set a definite schedule. When I disclosed the details of the sitting of the court, judges were compelled to sit with me in time.

Another problem related to the wastage of time during mention of cases every Sunday. There used to be a long queue of lawyers every day. They mentioned that their cases were so urgent that they had fixed the matters with the chamber judge as per the direction of the Chief Justice, but the cases were not posted on the list. When I was sitting beside the Chief Justice I used to think of all the time wasted by him. But I was helpless. There were allegations of corruption regarding taking advantage by way of wealthy persons getting their cases listed in exchange of money. Sometimes lacs of taka were paid to some designated persons and it was an open secret.

There were also reasons for these. The former Chief Justice did not constitute a second Bench with senior most judges or the second senior most judge but sat with all the seven judges hearing miscellaneous petitions. It was such a laughable matter that senior lawyers were why we did not constitute a second Bench. I felt embarrassed and said that it was the prerogative of the Chief Justice. When the Chief Justice fixed two or three appeals of the convicted accused for crimes against humanity under the ICT Acts of 1973, he constituted a second Bench headed by Nazmun Ara Sultana. Never during his tenure of three years and eight months had the former Chief Justice ever given any independent Bench to me. I had the opportunity to preside the bench when he was abroad.

The Judiciary is of course a vital organ of the State. Normally whenever a new Prime Minister or President assumes office, s/he visits the National Mausoleum to pay respect to the martyrs by placing wreaths. Even foreign dignitaries including visiting presidents and prime ministers are taken there on the first day of their visit. But never had any Chief Justice visited the National Mausoleum to show respect to the martyrs. So, after the felicitation ceremony was over, I told all the judges that I would go to the mausoleum for laying wreaths to pay my respect to the martyrs. All of them expressed their willingness to accompany me. It was a memorable occasion. The GOC of the 9th Division and the local parliament member received the Chief Justice and the accompanying judges. Media people and people in general gathered there and I laid floral wreaths at the National Mausoleum officially and then wrote comments in the visitors’ book. This event was also widely appreciated by media.

On the following day, I constituted two Benches, one was with me as the Chief Justice, and the other one presided over by Justice Abdul Wahhab Miah and both the courts started working simultaneously. I directed the office to enlist all the cases which were not posted in the daily Cause List and prevented the lawyers from mentioning cases in open courts and thus wasting time. Within six months of my assumption of office, there was a complete change in the atmosphere at the Supreme Court and at one point I found that I did not find enough lawyers after the recesses. I disposed of around one hundred to one hundred twenty cases on petition day and twelve to fifteen appeals on appeal day. About sixty to seventy percent petitions were disposed of in open court by dictation, a practice that was not prevalent previously in the Supreme Court. The orders and judgments were available within a week or two, sometimes in a day. So, the litigants were relieved of their long agony due to not getting orders from the court and the lawyers were also happy.

Another improvement I was able to make was to restrict dawdling of lawyers on any matter. Within a minute or two, I brought out the point. The lawyers were sometimes found unprepared to meet the queries. All complicated matters were disposed of within five to six minutes. In no case I allowed a petition to take up more than ten minutes. Previously this would be heard for hours together. The net result was that the disposal rate increased by more than sixty percent. It so happened that after one year, some lawyers were not even interested to dispose of their cases and sometimes they were uneasy when their cases were listed.

I had directed the office to enlist the cases year-wise and the cases were appearing in the daily Cause List serially without interference and without any illegal financial transaction. I found no appearance of lawyers in old cases. Sometimes, I granted Suo moto leave when I found law points asking someone advocates-on-record siting in the front desk. There was another precedent in the court that even after dismissal of a suit by three courts, at the time of dismissing of leave petition a lengthy judgment was delivered. I stopped this practice and disposed of those petitions in concise orders. A petition which has no merit at all does not require a lengthy judgment taking up unnecessary time of the court and thus the process also helped in disposing of cases expeditiously. The judges were also relieved of unnecessary pressure and work load. I encouraged my brother judges to write short orders and while granting leave we passed short leave granting orders that enabled the judges to sign the orders very quickly. Previously I found some leave granting orders were not signed in three years—a period during which the appeal could have been disposed of. There was a radical change in the system of work at which the litigants, the lawyers and the judges were all happy. But the bench readers had to take a lot of pressure because of the huge number of cases handled.

Tahmina Anam, a writer and anthropologist and author of ‘A Golden Age’, wrote an article in ‘The International New York Times’ of February 9, 2015, where while writing about ‘oborodh’ (obstruction) she said, “Clashes with police and random acts of violence occur on a daily basis, schools and factories are closed, businesses are failing, and in the capital the simple act of getting from one side of town to the other has become dangerous. Amid this grim news, there is a small glimmer of light: the appointment of Surendra Kumar Sinha, a Hindu and the first minority Chief Justice in this Muslim- majority country.” She added, ‘Justice Sinha has already indicated that he wishes to modernize the judiciary. On Jan.18, in his first public address since being sworn in, he proposed the reform of colonial-era laws and a sustained effort to improve the efficiency of the courts. He also urged the judiciary to take a close look at itself and work harder, with greater transparency and in more democratic ways. If only Justice Sinha had been around a dozen years ago, when the judicial system came crashing into my own household… Justice Sinha has proposed doubling the number of judges and has called for more automation of the courts’ administrative functions. The law is not like antique to be taken down, admired and put back on the self’ she said. He wants his courts to enjoy the ‘full public confidence and credibility of all.’ In the current political climate, it is difficult to find cause for celebration. Nor
does it mean that Bangladesh’s treatment of minorities has fundamentally changed. There is a culture of repression in the legal system, too, that is alarming. And the mandate for the head is not an easy one: to strengthen the integrity and political neutrality of our courts. Justice Sinha’s appointment is no panacea. But if he stands by his opening remarks, Justice Sinha can be that leader.”

Among other international print media praising my appointment were The Economic Times of India, General Knowledge of India, Pakistan Defense, Jagran Josh of India and The Guardian of Britain in which a detailed report progressing from the time of my appointment as Additional Judge, Appellate Division, performing functions as Chairman of the Judicial Service Commission, presentation of papers in different seminars abroad, etc. were highlighted. On social media platforms as well, there were more than 10,000 comments praising my appointment and hoping that there would be a revolutionary change in the judiciary during my tenure.

During the tenure of the former Chief Justice, there was serious squabbling between Abdul Wahhab Miah and AHM Shamsuddin Chowdhury that led to such an extreme situation that they did not speak to each other. Justice Abdul Wahhab Miah’s view was that Shamsuddin Chowdhury does not show any respect to him and in course of his conversation Shamsuddin Chowdhury would intervene. He had no courtesy, manners and good behavior as a judge. Shamsuddin Chowdhury’s version was totally otherwise. He used to demean Abdul Wahhab Miah. It was a convention being followed that whenever a judge of the higher court goes on retirement, a lunch is arranged by the other judges in honor of the retiring judge. Similarly, a farewell lunch was also arranged for Mozammel Hossain on his last working day. Mozammel Hossain and Shamsuddin Chowdhury were very close to each other being barristers. I requested the Chief Justice to resolve the dispute because I was apprehending that if such dispute persisted, it would be difficult to work in a harmonious atmosphere. The dispute was accordingly resolved.

One morning, Abdul Wahhab Miah came to meet me in a very foul mood and told me that I am being the guardian of the judiciary I must look after the prestige and dignity of the judges. I told him that as the Chief Justice, I would not hesitate to do anything to uphold the prestige of the judiciary and wanted to know what had happened to him. He brusquely told me that he had decided to issue contempt proceeding against the Law Minister the following day and came for my permission. I wanted to know from him what had happened and why he was so seriously agitated against the Law Minister. When I heard his reason of harboring anger toward the Law Minister, I was extremely embarrassed. It seemed that the Law Minister on the previous day commented at a forum that the judges were delaying the preparation and signing of judgements, and as a result, the litigants were suffering. Abdul Wahhab Miah took the statement of the Law Minister personally because he was always late in delivering judgments. I told him that since he was the senior most judge he should not do something like that. Because the Law Minister without mentioning the name of any judge had made a general statement which was correct. If he were to issue a contempt
proceeding, it would prove that he was late in delivering judgments, which was true; and secondly, being the senior most judge, if he behaved in such a way, what the junior judges would learn from him, I inquired.

I said I was embarrassed by the conduct of the judges of the High Court Division in issuing contempt proceedings on flimsy grounds and cited the example of Sahmsuddin Chowdhury. Abdul Wahhab Miah realized my sentiment and left. It may be recalled, except for one or two, most of the judges were taking long time in writing judgments. It came to my notice that Abdul Wahhab Miah had three-year-old judgments in the High Court Division when he was elevated to the Appellate Division. Shamsuddin Chowdhury had also kept about 300 plus judgments when he was elevated to the Appellate Division. Some of the judges retired while they had judgments unsigned for two to three years prior to the date of their retirement.

Though Mohammad Mozammel Hossain also showed his eagerness to elevate Abdul Wahhab Miah to the Appellate Division, he could not totally rely on him. I was convinced about his mindset over an incident. After assuming office, Mozammel Hossain began going on foreign trips. Whenever an invitation came, whether it was befitting for a Chief Justice to visit was not a concern to him. He went to the U.S. and Canada along with some other judges as head of the delegation to see case management and other related matters on a trip financed by the UNDP. During each vacation or long holiday, Mozammel Hossain used to be away on one or two foreign trips. On one occasion, before a court holiday, I arranged a tour program as the Chairman of the Judicial Service Commission. A few days before my journey, I wrote a letter to the Chief Justice seeking permission to leave the country. The Chief Justice told me that he was also planning to visit Singapore to attend a seminar and requested to delay my foreign trip till his return. I told him that my program was finalized about six months ago and I had already purchased my ticket and it was not possible to change my schedule. The Chief Justice was going out with the Registrar and some other judges. Later, I came to know that he changed the names of members of his entourage and included the name of Abdul Wahhab Miah. After their return, I wanted to know from Abdul Wahhab Miah whether he had delivered a paper at the seminar. He told me that just two days before the trip he was included in the delegation by the Chief Justice. He simply visited Singapore without participating in any discussion. Mozammel Hossain arranged his trips by giving charge to Nazmun Ara Sultana, because he did not feel secure to give charge to Abdul Wahhab Miah. If all the trips of Justice Mozammel Hossain are scrutinized, this will become clear. If we do not have respect and confidence over a brother judge, it is unhealthy for the judiciary, and I have seen some who play double roles by pretending to show cordiality externally only.

Reference:
1. Article 95 (1) of the Constitution.

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