Senior Judge of High Court Division of the Supreme Court of Bangladesh Justice Nazrul Islam Chowdhury recently attended a seminar on "Repression on the media and political violence: state responsibility and democratic culture" held at BRAC Centre Inn in Dhaka organised by a human rights organisation named Odhikar. In his speech as a special guest Justice Chowdhury expressed his deep concern on extra judicial killing in the name of so called 'crossfire'. He also expressed his grave concern on the effectiveness of the lawmakers in making laws. His comments received fierce reaction with offensive languages/derogatory remarks from the State Minister of Law, Justice and Parliamentary Affairs Advocate Kamrul Islam. The following day the Minister for Law, Justice and Parliamentary Affairs Barrister Shafique Ahmed reacted in the same way albeit in a mild but coordinated languages. He blamed Justice Chowodhury as being ignorant.
If Justice Chowdhury's whole speech is seen/read, one can see he has not done anything wrong. He has said what is true, he has highlighted what concerns to any conscious citizen of the country. One may disagree with the form/style of Justice Chowdhury's speech, but hardly any conscious person can disagree with the contents of his speech. Those who know Justice Chowdhury personally can confirm Justice Chowdhury's unique style of gesture and speaking. He did not do anything intentionally or artificially at the seminar.
In fact, occasional outburst from the higher judiciary is good for healthy democracy, rule of law and government. As a guardian of the Constitution the higher court judges can convey the message impartially without fear or political colour. The government can get a positive signal and may wish to change its direction, which is perceived to be wrong. Such outburst from the higher judiciary when government goes ahead with clear discriminatory policy or their policy is bound to be against the rule of law is not uncommon in developed countries. We have seen, on many occasions, the British High Court Judge vehemently attacking the government on its policy on anti terror legislation, detaining an accused for indefinite period, electronic tagging, and government's association on Guantanamo Bay, etc. But we have not seen any British Minister attacking/humiliating judges publicly or overreacting with offensive or inappropriate languages.
If a Minister in the UK acted or behaved in the way the State Minister did in Bangladesh, he/she would have been sacked or forced to resign. Unfortunately, this tradition has not yet developed in Bangladesh. However, we have been assured by the fact that the Prime Minister Sheikh Hasina has already warned the State Minister to be cautious when speaking in the media. We believe the Prime Minister's step was in the right direction.
Constructive criticism from the higher judiciary, no matter how and where it is made, is useful for the country, essential tool for improvement and above all beneficial for the government of the day. The government should not be afraid of constructive criticism and ministers should not be allowed to overreact with inappropriate languages or derogatory comments. Otherwise there will be a conflict between the judiciary and the executive, the result of which would not be helpful. Lesson should be learned from recent incidents in Pakistan. One may blindly argue that Bangladesh is Bangladesh, it is not Pakistan. I agree. But if we look at recent history we can see General Moin U Ahmed was more or less able to do in Bangladesh what President Parvez Musharraf had done in Pakistan in coming power and violating/flouting the Constitution. Could Bangladesh and its people have done anything to prevent General Moin? The universal lesson of the history is that nobody tends to take lesson from the history.
The Supreme Court is considered as the guardian of the Constitution. Its High Court Division has original, appellate and special jurisdiction (Art. 101 of the Constitution). It is considered as court of record (Art. 108 of the Constitution). The judgement of the Supreme Court shall be binding on all courts subordinate to it (Art. 111 of the Constitution). The High Court Division has superintendence and control over all courts subordinate to it (Art. 109 of the Constitution). All authorities, executive and judicial, in the Republic are required to act in aid of the Supreme Court (Art. 112 of the Constitution). Judges of the Supreme Court are oath bound to uphold the Constitution (In fact, a Supreme Court Judge while taking oath utters, among others, That I will preserve, protect and defend the Constitution and the laws of Bangladesh, Third Schedule [Art 148]) which ensures and guarantees fundamental rights of ordinary citizens of the country. Therefore, Supreme Court Judges have special position, status and prestige. They are neither civil servants nor ordinary employees. Comparing them as employees by the State Minister goes beyond all comprehension and cannot be accepted.
The State Minister's overreaction/comments with offensive languages/scandalous remarks are tantamount to the contempt of the Supreme Court. In the light of the numerous judicial decisions, contempt of court can be classified into three broad categories: (1) scandalisation of the court, (2) disobedience to the orders of the court and breach of undertakings given to the court, and (3) interference with the due course of justice. The State Minister's derogatory comments (such as, amra ain banai aar tara bekka korea khachhe, Tini khomar ojuggo opradh korechhen, sasti take petei hobe, songsode ninda prostab anbo, etc.) can, no doubt, come under the first category. The Supreme Court has shown utmost patience and tolerance in that they have not yet taken any step in relation to this contempt. If they did the matter could have been hostile and confrontational resulting in national crisis.
The State Minister threatened to go to the Supreme Judicial Council against Justice Chowdhury. Well, sudden outburst from the higher judiciary or constructive criticism cannot be a subject matter for the Supreme Judicial Council. Supreme Judicial Council is formed/referred by the President of the Republic for specific reasons. If the President has any reason to apprehend that a Judge is incapable of performing his functions because of physical or mental incapacity or has been found guilty of gross misconduct, he may direct the Supreme Judicial Council to inquire into the apprehended incapacity or misconduct (Art. 96 of the Constitution). Justice Chowdhury's comments do not come under any of these categories. Justice Chowdhury is physically very well and mentally fully capable. He has not done any gross misconduct. The State Minister has not probably understood, as eminent lawyer Barrister Rafiq-ul Haq said, what is covered and what is not covered by the provision of the Supreme Judicial Council.
Irony is for the State Minister. He was never seen practising in the High Court, let alone be a good Advocate in the courts!
I know Justice Nazrul Islam Chowdhury personally. I met him on quite a few occasions, both in the UK and Bangladesh. He is one of the talented judges in the current Supreme Court of Bangladesh. I have few learned fellow colleagues who were direct juniors of Justice Chowdhury and from them I have heard high admiration of him. Justice Chowdhury has wisdom, wealth of long legal experience, analytical power and strong backbone. He was politically impartial during his long legal career [this is proved by the fact that he was elected as a Secretary of the Supreme Court Bar Association as an independent candidate] and indeed has been maintaining so in his judicial career. Justice Chowdhury is articulate and has sense of humour. With such a personality higher judiciary of any country can be proud of.
(The writer is Solicitor, Supreme Court of England and Wales)
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Tags :Constitutional Law
