As Chief Justice I attended a seminar arranged by the ‘International Conference of Jurists’ held in Mumbai, India from March 27 to March 29, 2015. There I was awarded with the prestigious ‘International Jurist Award’ for my extraordinary contribution in the field of ‘Administration of Justice’. I participated ‘Regional Consultative Meeting on Judicial Service Commission Model Law’ in Kualalumpur, Malaysia from June 9 to June 11, 2015. I delivered a lecture on ‘Contribution of the Judiciary of Bangladesh in Strengthening Rule of Law and Democracy ‘on October 5, 2015 at the Gujrat National Law University, Gujrat, India. In this seminar The Governor and the Chief Minister graced the occasion. Then I opened the new modern Auditorium. During a visit to India organized at the behest of the dynamic Indian Prime Minister Narendra Modi, I met President Pranab Mukherjee at the Rashtrapati Bhaban and the Prime Minister Narendra Modi at his official residence. On my first interaction Pranab Mukherjee completely charmed me. His simplicity, intelligent remarks, steady but forceful low voice, the topics he discussed convinced me that he is a well-read intellectual and possesses a commanding personality. He was truly appropriate for the high office of the President of India. One can easily pass an entire day listening to him. He has a sublime soul, is a versatile jurist, and a graceful example of dignity and refinement. He started with the Constitution of India and I noticed the vast knowledge of constitutional law he possess—it was as if he was teaching constitutional law to me, while in his presence I felt like a novice in constitutional law. He critiqued the judgments of the Supreme Court regarding the appointment of judges through a collegium system saying that the judges drafted the Constitution and treated it as if they were lawmakers. They had usurped the power of Parliament. He pointed out two judgments of the Supreme Court.1 According to the President, the Supreme Court seized power to appoint judges through a collegium without any warrant in the Constitution in defiance of Ambedkar’s views. At the end he gifted me some books written by him.
From the Rashtrapati Bhaban, I was directly taken to the Prime Minister’s official residence. There was only a woman interpreter with us. The Prime Minister spoke in Hindi, although he is fluent in English, which I knew from two previous occasions. In the beginning the Indian Prime Minister asked about my Gujrat visit and the areas I had visited. It was a very organized tour and I was treated as a state guest. On the first day of my visit, the Governor arranged a grand dinner in my honor in which all judges of the high court, cabinet ministers and high-level government officials attended. I congratulated Narendra Modi for arranging such a tour and thanked him the honor given to me. I also congratulated him for establishing the first university of Forensic Science and Technology, a unique institution in the world, and the Gandhi museum, a very modern museum with two big auditoriums, the construction of which was completed in six months when he was the Chief Minister of Gujrat.
Narendra Modi is an institution by himself. He is a self-made personality, politician and an unquestioned nationalist. His eyes and expression led me to believe that after Nehru, this was the dynamic leader for India who was born for take the country to a height which would dominate the world one day. We had very cordial discussions for over one and half hours on various issues. The Prime Minister assured me of giving all cooperation and help in the administration of justice in Bangladesh including training facilities of judges in the Forensic University in Gujrat and the National Judicial Academy in Bhopal. After my arrival from India, I heard whispering in the government and particularly in a powerful elite intelligence agency that I did not accompany our High Commissioner in New Delhi intentionally as I had secret discussions with the Indian Prime Minister. As a matter of fact, I had no idea whether the High Commissioner, who was with me at the Rashtrapati Bhaban, would be allowed to accompany me or not. He did not tell me anything though he knew my schedule.
Later I also attended the 16th Conference of Chief Justices of Asia and the Pacific region held in Sydney, Australia, from November 6 to November 9, 2015. In 2016 I attended the ‘10th Chief Justices 13th SAAR CLAW’ from March 04 to March 07, 2016 in Nepal. Later I attended the conference on Effective Adjudication of Terrorism Cases held at the United Nations Security Council, New York, USA. I stayed in the Millennium Hotel just opposite to the UN headquarter. Prior to the conference we were taken to General Assembly conference hall, the Security Council room and other important halls where different conferences are held throughout the year. When we were taken for the lunch to the main cafeteria I found two Bangladeshi workers who had been there for a long time. On seeing me they came forward and introduced themselves. They served me special salads and desserts besides the usual menu. They were very happy to meet me and wanted to take photographs with me. They told me that had met politicians, diplomats, ministers and people from other segments of society but, they felt, my visit was special as no Chief Justice from our country had ever attended any meeting there. They added, my presence there was extra special to them particularly because, according to them, I had made revolutionary changes in the judiciary which they came to know from their relatives and the media.
I also came to know from them and other diplomats that only six seats are reserved for Bangladesh and no other person can enter the General Assembly Hall when the assembly is in session, although we learn from the media that every year more than hundred delegates come from Bangladesh to attend the General Assembly session at the cost of the public exchequer. In 2009 a total of 227 Bangladeshi delegates came to attend UN General Assembly Session with the Prime Minister, while in 2013 the number was 134, and in 2014 the number of delegates from Bangladesh to the UN General Assembly Session was 178.1(a) I learnt that huge amounts of foreign currency are spent every year unnecessarily. If there is no need for additional personnel, why should the state bear their expenses? No one is above the law; not even the Chief Executive of the country. Hence, she cannot spend superfluous foreign currency to cover expenses for employees or officers who have no role in the programs.
I placed a remarkable contribution in the discussion concerning counter-terrorism. I also attended the ‘19th Annual International Judicial Conference’ from May 18 to May 16, 2016 in USA. It is an honor to have the privilege to participate the Committee established pursuant to UN Resolution No 1373(2001). In that conference I took part in a panel discussion on the ‘Regional Effort to Support the Judiciaries of South Asia in the Effective Adjudication of Terrorism Cases’ in ECOSOC Chamber in the UN Headquarter, New York from 3:00 PM to 6:00 PM on March 9, 2016. I also participated in an event of exchange of views from Supreme Court of South Asia on Adjudicating Terrorism Trials from 9:00 AM to 12:30 PM in the Lipton D’agostino Hall, New York University School of Law. I played a very effective and vibrant role in all the sessions.
In the briefing at the UN terrorism conference I stated that terrorism, in any form, has been one of the constant concerns affecting every country in the 21st century. In many countries of the world it has been one of the most pronounced threats to peace, security and stability. The international community’s understanding of the term ‘terrorism’ has undergone transformations over time. Sami Zeidan, a Lebanese diplomat and scholar, had observed: “There is no consensus on the definition of terrorism. The difficulty of defining terrorism lies in the risk it entails in taking positions. The repercussion of the current preponderance of the political over the legal value of terrorism is costly, leaving the war against terrorism selective, incomplete and ineffective.”2 I mentioned that while condemnation of terrorist activities by the international community has been unanimous and unequivocal, the efforts so far taken to combat this phenomenon have been occasionally marred by differences of approach.
Regarding our government’s approach, I pointed out that Bangladesh has demonstrated a firm commitment to combating domestic and transnational terrorist groups and the government’s zero tolerance approach had made it harder for transnational terrorist groups to operate in or establish safe havens in our country. Even then, risks and vulnerabilities posed by certain fringe terrorist elements remain a threat to our national security. In one sensational case, I said, in 2006, the masterminds behind the banned terrorist outfit ‘Jama’ Atul Mujahideen Bangladesh’ (JMB) were found guilty and sentenced accordingly on charge of murdering two young judges in a remote south-western district of the country.
I also quoted3 what the apex court had observed: “Islam is a religion of peace. It is derived from the word ‘Salam’ meaning peace. Using the holy name of Islam, the perpetrators have engaged in a wild, mad struggle jeopardizing the law and order of the country resulting in killing of innocent people as has been done in the present case of killing two judges. Islam does not encourage use of force in the matter of religion.” I also underscored the enactment of the Anti-Terrorism Act, 2009 with provisions to deter certain terrorist activities and bring to justice the perpetrators, abettors and other accomplices including those who provide funding. In 2013, I informed the conclave, the law was further amended wherein a list of International Conventions, Instruments and Protocols had been incorporated, and violation of any provision of those instruments had been made punishable. One of the notable provisions of the Act is its extraterritorial application.
It provides: 4 “If any person commits an offence in any foreign country and then takes shelter in Bangladesh which, if committed in Bangladesh, would be punishable under this Act, the said offence shall be deemed to have been committed in Bangladesh and the provisions of this Act shall apply to the said person if he cannot be extradited to a foreign State having jurisdiction over the said offence.” I made observations saying that it is well acknowledged that without effective regional and international cooperation it would not be possible to combat and defeat terrorism and
financing terrorism. The South Asian Association for Regional Cooperation (SAARC) had been sensitive to the challenges posed by terrorism since the outset and adopted the SAARC Convention on Suppression of Terrorism at its 3rd Summit held on November 1, 1987. The convention stipulated that it was “required that each state should refrain from organizing, instigating, assisting or participating in the acts of civil strife or terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commission of such acts.”
South Asian Judiciaries, I said, may share their experiences with each other in respect of disposal of cases relating to terrorism. The South Asian countries may actively consider setting up a Judicial Research Academy where joint research studies could be conducted about the various dimensions of counter-terrorism legislation and adjudication of terrorism related cases. The Regional Toolkit being developed by Counter-Terrorism Executive Directorate also looks like a sound initiative. Although I am personally not yet quite familiar with the Toolkit, from what I have gathered, it could be a useful exercise to implement and validate the Toolkit in the national level in our region, particularly through our respective Judicial Training Institutes. The higher judiciary in the region should also be involved in discussions concerning breaking the nexus between terrorism and violent extremism, on one hand, and transnational organized crimes, illicit financial flows, and external financing, on the other hand.
The judiciary may also help propagate the messages of a culture of peace, non-violence and tolerance through its verdicts and pronouncements. And finally, I summed up saying that terrorism has no country and it is a threat to the entire human race and humanity. As a peace-loving country, Bangladesh is fully committed and ready to fight against terrorism and support all meaningful steps taken by the international community to combat the menace and I am sure that our intentions and endeavors will take us to the desired goal through our concerted efforts to a better future, which is not only the demand for the present, but also the next generation.
In New York University School Law in reply to a question regarding what the biggest challenges judges are facing in terrorism cases, I said the biggest challenges emanate from weak investigation reports and prosecution in relation to counter-terrorism cases. Despite the stringent counter-terrorism legislation’s in place, there still are different levels of understanding about their application among the law enforcement and investigation agencies, which often results in relatively weaker submission of charge sheets and resulting charges.
All our neighboring countries have National Judicial Academies to serve the training and research needs of the judges, government attorneys, government legal officers, judicial officers, private practitioners and others who are directly involved in the administration of justice. But it is very disappointing that we do not have that type of academy. These academies are the crying need for effective adjudication of terrorism cases. These academies should help establish a modern and independent judiciary offering contemporary training facilities and opportunities for exchange views on challenges and best practices relating to the application of existing norms and standards in relation to adjudicating cases including counter-terrorism cases.
As a practice being followed by me for long, whenever I visit a country I purchase some books—kind of a second priority. I expressed my desire to our ambassador at the Permanent Mission Masud bin Momen, a career diplomat, low speaker and a perfect gentleman. His wife is a welleducated lady with a personality to go with it. Her quality as a good cook may be compared with a qualified trained chef of Bangladeshi dishes. Momen took me to the Strand Book Store at 828 Broadway on 12th Street, Manhattan. It is possibly one of the biggest libraries in the world. One may pass the entire day visiting the library. With such a huge amount of choice I felt indecisive about which books to select because each book seemed like my favorite. I purchased nine books hoping that on my next visit I would purchase more. This bookstore also sells second hand books in excellent condition. When leaving I ran into an employee of Bangladeshi origin working there for more than twenty years. He got extremely emotional on seeing me and wanted to entertain me. However, I managed leave by letting him take a photograph with me.
I also attended ‘29th LAWASIA Conference and Golden Jubilee Celebration’ in Sri Lanka and presented a significant speech. I also attended the ‘3rd Asian Judges Symposium on Environment from September 16 to September 18, 2016 in Philippines. I joined ‘Bangladesh Law Society’ in New York, USA. I also attended seminars on ‘National Initiative towards Strengthening Arbitration from October 14 to October 25, 2016, held in USA and India respectively. In Indian seminar the President opening speech seminar and the Prime Minister delivered the valedictory speech. I also attended the conference on ‘The 2nd China South Asia legal Forum’ arranged by China Law Society from October 14 to October 17, 2016. In the conference I was honored to give the opening and valedictory speeches. In this seminar the senior most Police Bureau member graced the occasion.
Over time I attended and participated in many law conferences. The last was the Asia Pacific Chief Justices conference in Japan. It was one of the biggest conferences and more than 35 Chief Justices and other 15 judges of the apex courts from different countries attended. There were five sessions and only ten Chief Justices including myself were key speakers. My topic was ‘Role of Courts Regarding Family Issues and Protecting Violence against Women in Bangladesh’. It was a challenging issue around the globe but more so in the 3rd world countries. It varies in nature and extent in different countries depending on the financial conditions, rule of law, democracy and literacy of women. Bangladesh being a Muslim majority country, I realized, most of the countries wanted to hear me expound on the subject, especially on custody of minor children of broken families, marriage, dowry, violence against women, etc.
Initially I thought the other Chief Justices and social activists weren’t sure what to expect from me because Bangladesh is a poor Muslim majority country. But in fact, it is different from other Muslim countries of the world. I told them we have one of the best constitutions in the world. Rule of Law, protection of life and property and democracy are enshrined in it. The government is changed according to democratic processes. The Prime Minister, Speaker, the leader of the opposition and another large political party’s chairperson are women. Six women judges were working in the High Court Division and in the lower judiciary 35 percent of judges are women—a figure far above many developed countries like US, UK and even India.
I added for the protection of women and children we have a good number of laws. I mentioned those laws and said that we had established Family Courts in every district court. We even diluted religious sanctions in cases relating to custody of minors because we give top priority to the welfare of the minor while deciding custody issues. If the court finds that the welfare of the minor would not be protected, s/he would not be given custody in accordance with personal law. Courts do not hesitate to give custody of a male or female child beyond the prescribed age limit. In matters of maintenance and dower the courts lean toward the women. I also explained the philosophy of marriage, which I have discussed in another chapter.
After my speech, almost all judges expressed their satisfaction that Bangladesh judiciary had attained tremendous height which can be compared with any other country. They told me after my speech that initially they had a poor opinion about the Bangladesh judiciary but after my deliberations they adopted a much better estimation of our judiciary. The Chief Justice of China wanted to know whether there was any Shariah court in our country. I told him that under a modern Constitution there was no place for Shariah court. I explained to him the tenets and functioning of our Constitution and said that the rule of law was being maintained. Following the discussion, he requested me to give five or six constitutional judgments including the then recent Constitution 16th amendment judgment, a topic that was much discussed among them.
According to him, Chinese economic development was progressing rapidly, and they were looking forward to developing human rights in their country. His final statement was totally unexpected. He said, he wanted to keep my judgments in the museum of the highest court and wanted my signatures on the first page. The Chief Justices of Malaysia and Pakistan disclosed that as shariah courts are functioning as per their constitutions they worked within limitations. It is my pride to mention here that whenever I attended a seminar everywhere my counterparts were telling by themselves that I am a Hindu by faith though listening their conservativeness I felt so proud. But possibly I was expecting something more forgetting that though we achieved independence sacrificing three million martyrs, our leaders forget them of their thirst for power.
When I was in The Hague I visited the International Criminal Court and the International Court of Justice and had detailed discussions with my counterparts. At International Criminal Court they wanted to know about the trials for crimes against humanity. I appraised them of the successful completion of trials of about 20 cases without outside help and assured them that the trials were being held impartially by affording all facilities to the defense. We have provisions of review against any order under our law though we do not follow the customary international law because in the presence of domestic law covering the field, international law could not prevail. We had already settled this point before the International War Crimes Tribunals were created.5 I mentioned that we respect international laws but if those laws or provisions had not been incorporated into our domestic law, they are they are not enforceable in national courts.
While visiting Russia I executed an MOU with Russia and as part of cooperation. The Chief Justice of Russia visited our country on my invitation in October 2017. He is the only Chief Justice of a superpower ever to have visited Bangladesh. Though I was in Dhaka and still the Chief Justice, I could not meet him as I was under house confinement. It is shocking for me and disgraceful for the country that I was not allowed to talk with him. This incident surely undermined our government’s position because only a few days earlier we had met in Tokyo at the Asia Pacific Region’s Chief Justices Conference and had talked about his forthcoming tour of Bangladesh. We had exchanged gifts and he knew that I was still the Chief Justice and that I was not sick. As happens most often we gave precedence to narrow interests than to the national interest. The government did not know what talks and cooperation in the judiciary to be made between us. Those points were not addressed, and we are deprived of many things for the judiciary due to my absence.
- (1993) 4 SCC 441 and (1998) 7 SCC 739
(a). Daily Manavjamin, May 17, 2018
- Sami Zeidin, Spoke on Terrorism, 36 Cornell International Law Journal (2004) page: 491-492
- Sheikh Abdur Rahman v. State, 15 BLT (AD) 326
- Section 5 of the Act, 2013
- Hossain Mohammad Ershad v. Bangladesh, 21 BLO(AD) 69; Bangladesh v. Sheikh Hasina, 60 DLR(AD) 90; and Criminal Appeals Nos. 24-25 of 2013; Abdul Quader Mollah v. Government