Fazlul Karim’s Appointment as Chief Justice | A BROKEN DREAM | Status of Rule of Law, Human Rights and Democracy

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M.M. Ruhul Amin, the then Chief Justice, was due to retire on December 22, 2009. He had superseded Md Tofazaal Islam and Mohammad Fazlul Karim. Md Tofazaal Islam became the 17th Chief Justice and took oath on December 23, 2009 and retired on February 7, 2010. He was in office for less than two months. He was made Chief Justice because he presided over the Bench which heard the Bangabandhu Murder case. He also superseded Mohammad Fazlul Karim, who was bent upon becoming the next Chief Justice of Bangladesh. The only plus point in his favor was that he was the third judge in the High Court Division who had heard the Bangabandhu Murder appeal after the dissenting verdict delivered by Md. Ruhul Amin and Khairul Haque while hearing the main appeal in respect of maintaining the conviction of two or three accused. Md. Fazlul Karim was entrusted as third judge to hear the appeal who was against the line of political thinking of the Awami League. The office of Chief Justice was made political for a long time and it was beyond comprehension that anyone would become the Chief Justice outside the political line of thinking.

His name was also not considered during the caretaker government because he heard the appeal of the Bangabandhu murder case and MM Ruhul Amin, who was junior to him, was made the Chief Justice. Fazlul Karim had
the tenacity and perseverance to continue in judicial works despite being superseded twice. His only aim and object were to become Chief Justice of Bangladesh because his father-in-law Justice Imam Uddin was also a Chief Justice. He was moving heaven and earth to become the 18th Chief Justice. On the other hand, A.B.M. Khairul Haque also wanted to become the Chief Justice after retirement of Justice Tofazzal Islam. He had worked only a few months in the Appellate Division because he was elevated with me in July 2009. The point in his favor was that he had delivered the verdict of the Fifth Amendment to the Constitution and Bangabandhu Murder appeal.

Mohammad Fazlul Karim was a Barrister and as was Law Minister Shafique Ahmed. They had a special connection, but Shafique Ahmed had little power in the selection process and the Prime Minister alone was the authority although the Constitution empowered the President of the country to appoint the Chief Justice. Even at some point, Mohammad Fazlul Karim came to my residence twice to seek my help for his selection. There was serious persuasion on behalf of Mohammad Fazlul Karim. Ultimately somehow, he convinced late Akhtaruzzaman Babu, who was a powerful MP from Chittagong. The Chittagonians had their soft corner for their friends irrespective of their political identity. Akhtaruzzaman was successful in convincing the Prime Minister in favor of Md. Fazlul Karim. The government was in a dilemma; on the one hand, A.B.M. Khairul Haque was a very junior judge in the Appellate Division and, on the other hand, Md. Fazlul Karim had managed to reach the Prime Minister through Akhtaruzzaman. Though there were two other judge’s seniors to Khairul Haque they were out of consideration. At the eleventh hour, the Law Minister and I had a telephonic discussion. In the evening of the same day I told Fazlul Karim that night would be the crucial one as the decision on the next Chief Justice would be made. I told him I would let him know the final decision at night. Just immediately before making the decision, Shafique Ahmed rang me at around 11.00 PM to receive assurances from Mohammad Fazlul Karim that if he was chosen as the Chief Justice he would not embarrass the government. I rushed to Fazlul Karim’s house at around 11.30 PM and found him sitting in the drawing room with his wife. He was of course very happy to know the positive outcome. I communicated the message of the Law Minister to Fazlul Karim. He was physically challenged person but the moment I entered the room, he was so anxious that he stood up with the help of stick. I asked him not to stand up. He caught my right hand and told me, “I always looked at you like my younger brother. I will do whatever you want me to do.” I was surprised by his words and expressed my anxiety that he should not belittle himself for an office he was going to hold which was an exalted one. Standing there I communicated the words used by Fazlul Karim to the Law Minister and gave the phone to Fazlul Karim to speak with the Law Minister.

Thus Justice Md. Fazlul Karim became the Chief Justice of Bangladesh. After he assumed the office, he recommended some advocates for elevation as additional judges including Md. Ruhul Quddus and Khasruzzaman. But immediately after publication of the names, there was a report in the newspapers that both Md. Ruhul Quddus and Khasruzzaman had criminal records while studying in the university. In fact, those were political cases. Nevertheless, the Chief Justice did not invite these judges for taking oath. It was an embarrassing situation for me, the Law Minister, the government and others, who had recommended him as the Chief Justice. The government was annoyed about this event. A few days later a group of judges which included me along with Chief Justice Karim visited South Korea for a
program arranged by the Korea International Cooperation Agency. After the orientation program, I invited the Chief Justice to my room for a few minutes for an emergency discussion. I requested the Chief Justice to change his decision and save us from embarrassment by taking on those two judges. I reminded him the night when he gave me his words and more so because those two names were recommended by him. The Chief Justice stoutly denied deviating from his decision. Thereafter, his relationship with the government was not strained. He was in office for about seven months and twenty-one days. Those two judges took oath after A.B.M. Khairul Haque took office. He was appointed on November 30, 2010 superseding MA Matin and Shah Mominur Rahman. Both took long leave instead of resigning till Khairul Haque retired on May 17, 2011. Thereafter, Mohammad Mozammel Hossain was appointed as the Chief Justice on May 18, 2011, superseding Abu Nayem Mominur Rahman. Soon thereafter, the latter resigned.

When Khairul Haque was the Chief Justice the strength of the Appellate Division had reduced to three members only: besides the Chief Justice there were Mohammad Mozammel Hossain and me. The government was delaying filling the posts with a view to avoid Md. Abdul Wahhab Miah. There was enormous pressure on the court and the load of work could not be transacted with only three judges. During that time Abdul Wahhab Miah was the senior most judge of the High Court Division. While the government was reluctant to elevate him to the Appellate Division, it was also apprehended that if other junior judges were appointed there might be a commotion in the Supreme Court Bar because he was not aligned with the political ideology of the Awami League and he had close relations with lawyers of the opposition political party. He was involved in bar politics and the Supreme Court Bar was dominated by pro-BNP lawyers and Md. Abdul Wahhab Miah was popular to them. He had been secretary of the Bar Association twice. He was lobbying robustly for his elevation. At one point of time he even started behaving abnormally in open court and it was the talk of the day in the Bar Association and judges’ quarter.

He was so ambitious that he wanted to occupy the office of the Chief Justice from the day he was elevated as additional judge and he expressed his intention on one occasion in my presence at the Bangladesh Bar Council. The Bangladesh Bar Council was conducting a training course for lawyers. Barrister Amirul Islam was the chairman of the program. Former and sitting judges and senior lawyers used to conduct the classes. One day retired Justice AM Sadeque, an amiable and well-behaved judge, was waiting in the room meant for the judges. At that time Sadeque enquired about judicial works from Abdul Wahab Miah and me and praised us saying that we had a bright future and would be able contribute much the judiciary. Abdul Wahhab Miah responded by stating, if God forbids, Justice Sinha would remain as Chief Justice for more than three years and he would be the Chief Justice for 11 months, although he was senior to me in terms of enrollment in the Supreme Court, but because of age seniority, Sinha was given seniority at the time of elevation. I knew Md. Abdul Wahhab Miah from before in which sense he was making the comment was clear to me and I avoided in making any comment.

Obaidul Hasan and M. Enayetur Rahim were junior to Abdul Wahhab Miah when they were practicing at the Bar. They along with Syed Rezaur Rahman were involved in the Jatiya Ainjibi Samity, a parallel lawyers’ forum headed by Advocate Khandker Mahbuddin Ahmed. The biggest such forum was Samannita Ainjibi Samity headed by Shamsul Hoque Chowdhury. Naturally Obaidul Hasan and Enayetur Rahim had a soft corner and close relations with Abdul Wahhab Miah. These two judges were going door to door for the elevation of their senior to the Appellate Division. They used to visit to my chamber almost once a week and after exchange of greetings, I used to ask them whether they had any business with me. I knew the purpose of their visit but pretended knowing nothing. They knew that I am man of very strict personality and did not dare raise the issue at any point. They are in the habit of saying; “Sir, we’ve come to convey Salams to you.”

One weekend morning Mahbubey Alam came to my official residence at Kakrail for discussion on a private matter. We were then on very good terms because of our progressive thinking. He is a thoroughly progressive- minded gentleman and has a weakness in Rabin Dra Sangeeta and occasionally arranged Rabindra Sangeet programs at his residence sometimes inviting Indian singers for selected audiences. Abdul Wahhab Miah could not imagine that the Attorney General would be at my residence and I noticed a bit of embarrassment in him on seeing the Attorney General. Mahbubey Alam and Abdul Wahhab Miah were on good terms, but they kept a distance from one another due to their different political thinking, although when they met they behaved as if they were close friends. This kind of exchange of views appeared to me meekly and I used to enjoy the moment whenever they met each other. As observed above, Mahbubey Alam was a very progressive man, while although Abdul Wahhab Miah pretended to be progressive minded, his performance and conduct proved otherwise. Despite knowing everything about him, Obaidul Hasan and Enayetur Rahim kept their closeness with Abdul Wahhab Miah and they were very much interested in his elevation.

However, both Obaidul Hasan and Enayetur Rahim belonged to strong Awami League leaning families. Obaidul Hasan’s younger brother Sajjad, an additional secretary, was working as private secretary to the Prime Minister and he is very close to the Prime Minister. Enayetur Rahim’s younger brother is a whip of the Parliament where the Awami League is in the majority. I realized the purpose of Abdul Wahhab Miah’s to my residence and requested him to have a cup of tea with us. He was hesitating in the presence of Attorney General Mahbubey Alam saying that since we were discussing something confidential his presence would not be befitting. After taking tea, Wahhab Miah wanted to leave but I came out from my chamber requesting the Attorney General to wait for a while. Out on the verandah Abdul Wahhab Miah embraced me and said, “Friend, forgive me if I’d offended you. Please help me to be elevated to the higher bench.”

It was the first time he expressed regrets and asked for my forgiveness. But I told him that still I treated him as my close friend and I would be happy if he was elevated to the Appellate Division and that I would not be standing in his way. It seemed to me he relaxed after this assurance. When I returned to the waiting Attorney General, Mahbubey Alam in his usual fashion laughingly asked me that certainly Abdul Wahhab Miah had come to lobby for his elevation. I smiled. Then Mahbubey Alam said, “This gentleman has polluted the High Court Division and committed blunders and if he was elevated, there would be serious complications in the administration of justice.”

Ultimately however Abdul Wahhab Miah managed to get his name included along with those of Nazmun Ara Sultana, Syed Mahmud Hossain, Muhammad Iman Ali and Hasan Adbul Foez Siddique for the elevation. The last three judges were much junior to him. Later, I had an occasion to meet the Prime Minister and she asked about the judiciary and at one point she told me that she was compelled to appoint Md. Abdul Wahhab Miah because of Law Minister Anisul Haque. I came to know later that Wahhab Miah met the Law Minister and embraced him and somehow convinced him to pursue the matter of his elevation with the Prime Minister. Anisul Haque subsequently admitted to me that he had made an error and due to this he was facing a lot of criticism from the Prime Minister.

On many occasions I performed the office of Chief Justice as the Chief Justice was touring not only during holidays but also during court hours regularly. On one occasion, while I was in charge, I noticed a news item published in the daily Jugantar regarding corruption of one Faruk Ahmed. The report provided of case numbers. Faruk Ahmed had retired as Special Judge, Dhaka, a few days earlier. It had been alleged that he had indulged in serious corruption in the last six months before retirement. Soon after reading the news I went to inspect that court. I had inspected some of the cases mentioned in the report and noticed that the said officer delivered judgments on two or more cases in a day. He did not follow the procedure for attendance of witnesses and by examining one or two witnesses, without waiting for the arrival of other witnesses, closed the prosecution cases and delivered judgments acquitting the accused. I inspected only two months’ judicial records and in two months he had disposed of about one hundred cases most of which were matters of gold smuggling or cases relating to smuggling of other valuable goods. I found collusion of the public prosecutors as it was revealed on inquiry of the Bench Assistants and lawyers. Moreover, without the help of the Public Prosecutors he could not deliver judgments in such a manner. I directed the Bench Assistants and other officials to bring a printer for printing the records of the cases so that I could submit a report on that day because on the following day the Chief Justice would resume his office.

I noticed that in cases which were not ready for hearing, he framed charge and fixed the following day for trial and after examining one witness, he closed the prosecution case and delivered his judgment. After bringing the record, I sat at the Judicial Service Commission at night and dictated the report. I finalized the report by 10:00 PM and directed the Registrar to keep open the office till I returned. Gigantic corruption and fraud were practiced by the officer in acquitting huge number of sensational smuggling and corruption cases. I submitted a detailed report pointing out that since the officer had retired, the Durnity Daman Commission (ACC) would take legal action against him and directed the Ministry not to give his pension benefits until the investigation was complete. I also pointed out that due to shortage of time, I could not inspect other cases and requested the Chief Justice to hold an inquiry with another judge of the High Court Division in respect of cases heard by Faruk Ahmed in the preceding two months. This news was somehow leaked to the media and published the following day. The Chief Justice on coming to know asked me why I had submitted the report without waiting for his return and requested me to withdraw the report promptly. I told him that I had only pointed out whatever irregularities I found, and this type of officer cannot be exonerated. He, being the Chief Justice, could keep the report concealed without communicating to the Ministry and the ACC or in the alternative he could withdraw the report in exercise of his power. But I could not withdraw the report after submission.

This officer was known to be corrupt and his name was proposed by the Ministry on three occasions and the GA Committee, the highest body headed by the Chief Justice and three senior judges of the High Court Division to oversee the transfer and postings of judicial officers, refused the proposal even though the Chief Justice had pressured the members of the committee to approve the proposal due to the persistent demand from the Ministry. This officer hailed from Kishoreganj and the Chief Justice was also of the same locality. But the judges refused to approve the proposal. At one stage one judge threatened to resign from the Committee if the Chief Justice insisted on Faruk Ahmed’ posting to Dhaka. The Chief Justice then reconstituted the GA Committee and approved the proposal. When the fact was brought to the attention of the Law Minister, he did not make any comment. In respect of another judicial officer on one occasion the Prime Minister asked me how a judicial officer can leave the country after passing judgment and how he could afford to stay abroad. I told her that it would be better to ask her Law Secretary because he was brought at the instance of the Ministry. There were innumerable incidents of this nature.

Normally I do not allow lawyers to make irrelevant submissions and cannot tolerate dawdling of lawyers at the hearing of any matter. I always preferred disposal of cases without wasting the court’s time but some judges do not have any interest in clearing the docket; rather they are happy if lawyers can be made happy and allow irrelevant submissions. I had once noticed that a lawyer was making irrelevant submissions while I was presiding over a Bench and Md. Abdul Wahhab Miah was asking questions with a view to linger the submission of the lawyer.

Finding no alternative, I intervened and asked the lawyer to answer the question of law involved in the case. Suddenly Justice Abdul Wahhab Miah started shouting in open court and saying things like “I could not tolerate him and could not allow him to ask any question. I always suppressed him” and so on. By nature, Wahhab Miah’s voice was very loud. When he was talking with any person supposedly normally someone would feel that he was squabbling. It is a court tradition that whenever the presiding judge intervened in a matter during a hearing, the puisne judges would cease talking. Thus, decorum was maintained. It is a tradition being practiced over centuries. Naturally, I felt embarrassed due to the misbehavior of Abdul Wahhab Miah in open court. I immediately came down from the court. So naturally all the judges followed me. After entering the chamber, I requested Abdul Wahhab Miah with folded hands in front of the other judges, “Don’t create any scene like this in open court breaking all decorum.” This would send the wrong message to the Bar and added, “I tender my unconditional apology if I’ve committed any mistake. Please come and sit in court to transact the business of the day.” I calmed the situation for the time being in
the interest of justice with a view to keeping harmony among the judges. I believe, even if there is a misunderstanding it should not affect our judicial work.

During that period, I was fortunate enough to have played a vital role in the administration of justice, commanded respect from all because of my swift grasp of points of law in most matters, and accordingly was able to play a pivotal role in the policy matters of the judiciary bypassing the Chief Justice.

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