A BROKEN DREAM | Status of Rule of Law, Human Rights and Democracy : INTRODUCTION

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A BROKEN DREAM | Status of Rule of Law, Human Rights and Democracy : INTRODUCTION

Of the organs of the State, judiciary is an essential and integral part and its independence Bangladesh, which emerged through a war of independence against Pakistani occupation army in 1971, included democracy as one of the basic State principles in the constitution of 1972, and the constitution ensured the separation of judiciary from the executive, and the independence of judiciary. Part V1 of the constitution deals with the judiciary, which suggests an independence of judiciary from the executive interference. However, bureaucratic procedures and absence of political will of the succeeding governments have made the independence elusive. Besides, succeeding governments, both military dictators and civilian governments have been averse to the idea of judicial independence and have been engaged in the process of subverting any efforts to curtail the executive’s undue influence.

Equally important is the significant changes judiciary in Bangladesh have undergone in the past four decades, through inclusion of highly skilled professionals, introduction of technology, commitment of equal treatment of citizens, challenging the culture of impunity by trying the killers of the father of the nation and war criminals, and acting vigorously as a protector of civil liberties, to name but a few.

I had the opportunity and honor to observe this transformation and the hindrances as a participant of our judiciary since 1974-rising from practitioner at a lower level of the judiciary in the north-eastern district of Sylhet to the highest judicial position of the country, the Chief Justice of Bangladesh. But in 2017, after the historic verdict upholding the independence of judiciary, I was forced to leave the country and resign and exiled by the present government. It was unprecedented in the history of the judiciary. The unanimous verdict the highest court of the country with observations about the state of governance and tendencies of political leadership, was applauded by the citizens, lawyers, members of the civil society and drew significant attention of domestic and international media. However, it irked the power that be.

The series of unfortunate and unprecedented events, which led to the tension between the executive and the judiciary and subsequent improper and empathetic action against a sitting Chief Justice began on September 22,2014 when the Parliament amended the constitution to provide power of impeaching the judges of the higher judiciary to the members of the parliament. The constitutional sixteenth amendment deleted the provision of removing the judges from office through a highly powerful committee of peers called the Supreme Judicial Council (SJC). The SJC, as stipulated in the constitution, also allowed the offender judge to have self- defense. Most importantly, the process was meant to protect the judiciary from being subjected to political vagaries and serving political leaders than the citizens’ May 5, 2016, a special Bench of the high Court division by majority declared the amendment unconstitutional. Soon after the verdict the MPs blasted the judges for nullifying the amendment and began displaying sheer disrespect to the judiciary. However, the State opted for an appeal which was heard by a seven-member Bench. It was incumbent on me to preside the Bench. On July 03, 2017, the Bench unanimously dismissed the appeal upholding the High Court Division’s verdict. The complete text of the unanimous verdict, observations made public on August 01, 2017.

Following the decision on September 13, the parliament passed a resolution calling for legal steps to nullify the verdict. The Prime minister and other members of her party and ministers blasted me for going against the Parliament. Cabinet members including Prime Minister begun smearing me alleging misconduct and corruption. While I remained confined at my official residence and, lawyers, and judges were prevented to visit me, media were told that I am unwell and have sought medical leave. Various ministers said I will go abroad on medical leave. On October 14, as I was compelled to leave the country, I tried to clear the air in a public statement that I am neither unwell nor am I leaving the country for good. I was hoping that my physical absence combined with court’s regular vacation will allow the situation to calm down and good sense will prevail, the government will understand the essence of the verdict-upholding the independence of judiciary-is beneficial to the nation and the State. Finally, in the face of intimidation and threats to my family by the country’s military intelligence agency called the Directorate General of Forces Intelligence, I submitted resignation from abroad.

This book highlights my early struggle for survival and judicial life, experiences, challenges before the judiciary in Bangladesh, its struggle for independence: erosion of values in judicial service & of politicians: political interference and the state of nascent democracy: reflection of judicial mind on different issues: censuring public prosecutors’ conduct in prosecuting cases: police excesses: impact of Emergency and the role of DGFI in extorting money from businessmen. Also, the role of the Bar Council which is crucial as it has failed to stand behind the court in defending its independence due to partisan divisions: interference in the administration of justice. This book provides intimate accounts of the developments which led to a tension between judiciary and executive in Bangladesh and my forced resignation, however, they are told as my life-long journey in quest of justice instead of trying to provide an Assessment of the state of governance or the future pathway of the nation. Those are to be decided by the people of the country, who have never shied away from sacrifices for liberty, justice and equality. This is an incomplete autobiography as to how be me able to become the first minority, both by ethnically and by religion, Chief Justice in a Muslim majority country. This is also an account of the adverse situations I have endured to ensure judiciary’s independence. My journey through the tempest is also the journey of the nation through the whirlwind. As such, the book has relevance to those who tries to understand contemporary Bangladesh, its trials and tribulations. Anyone interested in the relationship between the executive and the judiciary in developing countries, challenges of judiciary in fledgling democracies will find the book relevant.

This book will have more than served its purpose if it inspires the reader, he be a lawyer or a politician or a teacher of law college or university, or a layman, with belief that the vocation of a lawyer is an honorable vocation requiring the highest standards of latitude, integrity and uprightness: so also, to a judge or a politician. There are some errors and omissions in the citations and these are due to shortage of sufficient books that were collected by me, but I am unable to bring with me. Some of the references are made from memory and I hope to correct them in the next edition.

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