Elevation to the Bench | A BROKEN DREAM | Status of Rule of Law, Human Rights and Democracy

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During that time, a lawyer over fifty years old used to be considered for elevation to the Bench though the Constitution provides for 10 years practice in the Supreme Court. When I was in my 40s, I was offered the office of judgeship. But on two successive occasions my name was dropped because of my age. ATM Afzal, the former Chief justice, on one occasion harmlessly remarked that my age was the barrier to my elevation although he was very eager to elevate me to the Bench. After the Awami League came to power in 1996, Abdul Matin Khasru, then minister in charge of the Ministry of Law offered me the office of the Deputy Attorney General. I declined the proposal and he was very much annoyed with me. There was a dearth of lawyers with experience in criminal law in the Attorney General’s Office. I told him that I would accept any offer of becoming an Additional Attorney General, to which he said that Mahbubey Alam had been appointed to that position. I told him that during the previous government there were more than one Additional Attorneys General. He said that those appointments were in violation of the law. I told him that was not my problem, but I would not accept any offer less than an Additional Attorney General.

Though my name was in the list for appointment as a judge of the High Court Division from before, my name was dropped because of disagreement with Law Minister Abdul Matin Khasru in the first batch of elevation. In any case I was not much interested to become a judge because of my highly successful practice. My senior S.R. Pal also did not like the notion as it was not advisable to accept such an offer good by a good lawyer with a successful legal practice. At the time of recruitment of the second batch of judges Law Minister Khasru made three phone calls to my residence. My wife received the calls and he requested her to ask me to have a cup of tea with him. After the third call, my wife Shushma told me with some anger that since a minister was repeatedly calling me I should meet him adding that it is my duty to respond to his request. My wife advised me that if it was for elevation as a judge, I could decline his offer, but it was not fair to keep away without responding to him.

Ultimately, I went to meet the Law Minister in the late afternoon at the Pathokali Trust office located at the northern side of the then Sheraton Hotel, where he was doing his evening office. Sometimes thereafter, I noticed that Abdul Wahhab Miah arrived there with Advocate Syed Reza. I realized that Khasru was in the process of selecting some judges. As Md. Abdul Wahhab Miah came with Syed Reza, an Awami League leader from Comilla, I was confident that Syed Reza came for Abdul Wahhab Miah. After some discussions and tea, Syed Reza handed over the curriculum vitae (CV) of Wahhab Miah. Khasru also requested me to give him my CV and said that whatever misunderstanding we had previously should now be buried. He also told me that there was scarcity of judges with progressive thinking, so I should accept the offer. I told him that I would think over his offer and discuss with my wife. In course of our discussions, it was time for Maghrib prayers and we were about to leave. But Khasru requested me to wait for some time. After offering his prayers, he took me to another room and requested me by holding my hands that I should not refuse the offer. I then contacted my wife and intimated the desire of the minister. She told me that she would not express any opinion other than that it was indeed a respectable offer, but still I should think over the matter taking into consideration our financial condition.

At that time, I had a four-story house in Madhubazar, West Dhanmondi, and Dhaka. After thinking about the financial condition, I decided to accept the offer and gave my CV to the law minister. He requested me to help in reorganizing the Attorney General’s office and in selecting some judges. We discussed some time in choosing at least ten judges, but it was very difficult to select suitable persons. He told me that Syed Reza and some Awami League leaders were applying pressure to appoint Abdul Wahhab Miah. He said that two district judges would also be included and wanted to know about Mamtaz Uddin Ahmed. I suggested including Advocate Abdur Rashid. He was a progressive lawyer and a competent one. He accepted the proposal. Then I advised him to appoint at least two Deputy Attorneys General who could be selected for judgeship in due course. One was Syed Mahmud Hossain, the present Chief Justice, and another was Hasan Fayez Siddiqui. I told him that these two young lawyers are promising and would make good judges. Then he requested me to ask them to meet him.

The following morning, they met Law Minister Khasru and they were appointed Deputy Attorneys General. When my appointment was finalized, and the gazette notification was published, I called my junior, Mahbub Ali, now a Member of Parliament from the Awami League who was then working as Assistant Attorney General. I told him that he had worked with me for a considerable period and I wanted to hand over my ‘sheresta’ [briefs] to him. If he was ready to take the charge of my chamber, then I would take my oath of office. If he did not take the responsibility of the briefs within seven days, I would not take the oath. I had considered that I had about 4,000 plus briefs lying in my ‘Sheresta’ and unless I got a trusted lawyer, I would not accept the judgeship. Mahbub Ali responded by saying that he was supposed to visit China as a member of a government delegation and he needed one-months’ time to take charge after his return from China. I advised him that if he could deal with briefs properly, he would be able to visit China every month with the income from the briefs. I told him clearly that he would have to give up his plan of visiting China and take charge of my briefs otherwise I would have to make a different decision. Advocate Mahbub Ali accepted my offer and on the following day he met Law Minister Matin Khasru and offered his resignation as Assistant Attorney General. Matin Khasru threw his letter of resignation and said there was a dearth of honest officers in the Attorney General’s office, so he must withdraw the resignation. Mahbub Ali did not accept the direction of the Law Minister and came to me the following day and informed me about his resignation. Though a junior lawyer, Mahbub Ali is an honest lawyer and belongs to a very respectable family. He maintains honesty and dignity, but he did not have enough space in his house to keep four thousand briefs and requested me to allow him two months’ time to keep the files in my residence. I told him that I could give him fifteen days’ time and by then he must find a suitable place for storing the files. When he said that it was not possible to shift such a huge volume of briefs within fifteen days, I advised him to move them to my Supreme Court’s chamber, which was shared with Advocate S.A Rahim, who rarely came to court. Mahbub Ali was sharing a chamber with Mahbubey Alam but the chamber was occupied with Alam’s briefs. Mahbub Ali accordingly transferred the briefs as per my advice.

I took the oath on October 24, 1999 with seven other judges. Even after my elevation, I found no change in my mind, because I was attached to Pal, a reputed lawyer who commanded much more respect than an ordinary judge. Just fifteen days before our confirmation was due, the governing party changed and Bangladesh Nationalist Party (BNP) formed the government. I was sure that if I was not confirmed by the party in power, I would return to my practice. So, I was not too anxious. Mahmudul Amin Chowdhury was the Chief Justice at that time. Two days later, the Chief Justice wanted to know about my briefs and with whom they were lying. I told him that I had handed over the briefs to Mahbub Ali and disconnected the telephone. About four days thereafter, the Chief Justice called me and enquired about my briefs again. I was a bit annoyed about his questions and told him that I had already told him the briefs were with Mahbub Ali. I disconnected the line. Following this I was wondering why the Chief Justice (Mamun Bhai) had asked twice about my briefs, although he is known to me from the beginning of my profession at Sylhet. We sat in the same table of the Bar. There must be some reasons behind it, I thought. If I were not confirmed because of political reasons, I would have no objection. But if it was due to some other reasons, then I would have to think it over. I was certain of my integrity, capability and acceptability as a good judge by members of the Bar.

Sometimes thereafter I heard whispering that out of eight judges appointed along with me, three of them would not be confirmed, and I thought that among the three, one must be me. Nobody could say who were the other two, but my name was being told by almost everyone. Then I realized that there was a link between the Chief Justice’s query and the ongoing rumor. Some lawyers including the vice-president of the Bar and judges were against my confirmation and they made representations to the Chief Justice which I heard later. Even then I kept silent and watched the progress. On the following morning, the personal assistant of the Chief Justice came to my chamber and told me, “Sir, I am happy to intimate that your name has been recommended for confirmation.” I wanted to know the
names of those along with me who else were recommended. He expressed his inability saying that he respects me like a father, so he gave the news about my confirmation. In the late afternoon, after court hours, I wanted to convey
my congratulations to Abdul Wahhab Miah that he was going to be confirmed with a view to test his reaction. On the intercom I was surprised to overhear at that time that he was talking with Momtazuddin and I heard their discussions because of a cross connection. Justice Abdul Wahhab Miah was telling Justice Momtazuddin Ahmed in clear terms that Sinha would not be confirmed as he was a corrupt judge and that there were many allegations against him. On hearing the conversation, I became completely dumbfounded by the spread of the rumors against me and was bewildered that the person who took the leading part in this was none other than my close colleague.

After two days the gazette notification was published. I called the Chief Justice with a request to give me a short notice to meet him. He told me to visit him right away but, I said, I would want to meet him at his residence. He told me to come after Maghrib prayers. I reminded him that he knew me from my early days in the profession and about my connections with prominent lawyers. On the first occasion when he enquired about my briefs, I was not at all worried, but on the second occasion I became worried because even after knowing about my professional life he was asking about my briefs with a motive which I realized but as he was the only authority to recommend my confirmation, I thought that I should answer the correct reply and if I said more, it would tantamount to influence him, certainly it would be against the ethics. It was the Chief Justice who would recommend the judges who according to him were fit for confirmation. After the gazette notification, I came to clarify. Then I reiterated the story about the handing over the briefs to Mahbub Ali and told the Chief Justice that if he found anything misleading, I would not take oath despite the gazette notification. He can confirm this from Abdur Rahim. The Chief Justice was dissatisfied after hearing everything scolded me and told me I should have told him the story earlier. He said that a good number of lawyers and judges were against my confirmation and even the vice-president of the Supreme Court Bar Association (forgot his name, he hails from Barisal) made a representation to him. He took a lot of pressure for recommending my name. I told him that his recommendation must be independent and without influence. Though he had good relations with me from earlier days of our profession, I did not tell him because I was clear in my conscience that I did not commit anything unethical. He then told me that within six months of my elevation, the senior judges were determined to recommend me for confirmation on being satisfied with my judgments but because of the pressure he was confused.

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