Syed Badrul Ahsan
The demarcation of territory between the judiciary and the executive in Bangladesh has been getting blurred of late. One does not require much wisdom to comprehend the inglorious way in which the ruling political class has effectively created a crisis over the role, or non-role as the case might be, played by the Chief Justice of the Supreme Court in an interpretation of the law and the Constitution. Justice Surendra Kumar Sinha, having been pushed into hot water over the judiciary’s decision to scrap the sixteenth amendment to the Constitution, has now gone, or been made to go, abroad.
But Justice Sinha’s departure has not lessened or softened the debate around him any. If anything, it was Sinha himself who clearly had the last word in all this on-going debate over what he did and what he should not have done when it came to the judgment over the sixteenth amendment. He informed the media, and therefore the nation, shortly before his flight to Australia that he had not been ill, that he was unhappy with what he saw as government interference in the functioning of the judiciary. Indeed, when he spoke to the media scrum gathered at the gates of his residence, little sign was there of any illness he might have been suffering from.
Where does that leave Law Minister Anisul Huq, who informed the country not long ago that the Chief Justice was ill, that he had cancer? It feels rather eerie revisiting all the drama that has been building up around Justice Sinha in these past many weeks. Where any question related to his health should properly have been the preserve of his medical team, we the people were treated to the curious spectacle of the Law Minister giving us medical bulletins related to Sinha’s health. Not that we concurred with the minister, of course. The public concern had more to do with the health of national politics as it shaped up, or declined, around these vexed questions being raised, often with malicious intent, on the state of health of the Chief Justice. Not until Justice Sinha’s appearance outside the gates of his residence did we get to know that he had not been ill at all.
That begs the question: who drafted the letter which the Law Minister flaunted only weeks ago before the media about the head of the judiciary asking for leave? If we are to take the minister’s word for it — that Justice Sinha did indeed write and sign that letter — how does the government explain this new narrative of the Chief Justice’s not being physically unwell at all? Unfortunately, in the aftermath of Justice Sinha’s departure for Australia, we remain in the dark about the nature of the crisis, about the probable fall-out from it on national politics. In the days ahead, the darkness will gather substance, will become thicker, will confound us all even more. Meanwhile, there are certain points, those that were truly a build-up to this unsavoury situation, that we need to revisit in the national interest.
The government has informed us that eleven specific allegations happen to be there against the Chief Justice. The Law Minister has hinted that the Anti-Corruption Commission will be looking into these allegations, obviously because they affect not only the person and career of the Chief Justice but also the reputation of the institution of the judiciary itself. The question, though, is a simple one: With the government in the know about these allegations against Justice Sinha — it cannot pretend that it suddenly came upon them after Sinha’s flight to Australia had taken off — why did it not move to have the Chief Justice stay in the country and face the charges against him?
And that is not the only question. The mystery deepens with every passing day. If Justice Sinha is a corrupt man, if indeed he is guilty of what he is being accused of, how is it that the government did not take steps to inquire into his conduct before all this crisis around the sixteenth amendment exploded in the country’s face? It is standard procedure, in every country, that an individual considered for a position in the service of the republic has his or her antecedents thoroughly inquired into and cleared before he or she can assume that responsibility. Did the government not explore Justice Sinha’s past when it mulled the matter of his elevation to the position of head of the nation’s judiciary? If it did and if in the process it overlooked his ‘transgressions’ in service, why did it paper over those ‘transgressions’? And why are those ‘transgressions’ being revealed to the country now?
The answers to these questions will, one can be pretty certain, not be forthcoming. No one is arguing that the Chief Justice is innocent or that he is guilty of everything he is being accused of. What exercises the public mind, though, is the nature of the fury which the ruling dispensation has been directing at Justice Sinha since the judgment over the sixteenth amendment came to pass. And then remember, if you will, the gamut of condemnation and vilification the Chief Justice has been compelled to go through in light of the judgment. All of that has been ugly. The beauty which characterizes the relationship of the legislative, executive and judicial branches of the State one to the other has gone missing. Here is how it all happened:
A retired judge of the Appellate Division, in unprecedented fashion, went public with his opinion that the Chief Justice would be compelled to leave the country;
A former Chief Justice, at present presiding over the Law Commission, publicly criticized the Chief Justice over the judgment in the sixteenth amendment case;
The country’s agriculture minister, not willing to be left behind, held out the threat that Justice Sinha would either have to leave the country or undergo psychological treatment at the mental hospital in Pabna;
In the Jatiyo Sangsad, the Chief Justice was subjected to some of the worst abuse and vilification a public figure has suffered through in this country. It was unfair, for here were our lawmakers running down the head of the judicial branch, knowing full well that the latter had little opportunity, given the nature of his office, of defending himself or responding to their questions about his performance or character or both.
It is a sad situation, one that will have repercussions which may well stretch into the future, to our collective embarrassment. It is a dismal condition, for in all the developing crisis around him, the Chief Justice was kept incommunicado at his residence. Other than the Law Minister, no lawyer, no politician, no friend, no critic, no well-wisher was permitted to meet him. Not until moments before his departure for the airport did the nation get to glimpse him, for a few brief minutes.
And now we understand the President of the Republic has handed over to Justice Sinha’s colleagues the files detailing the charges against the Chief Justice. The Attorney General sees much that is true with regard to the slew of accusations brought against Justice Sinha. And the country has been told, again in a manner that is as unprecedented as it is shocking, that Justice Sinha’s colleagues in the Supreme Court have collectively expressed their inability to work with the Chief Justice from now on. For the first time in the history of the judiciary anywhere, members of the judicial branch of a State have made it known that they will not work with the man who heads the institution they are part of.
What does all this tell us about the present, about the future, about the State? Where do we the people go from here?
Syed Badrul Ahsan: Associate Editor, The Asian Age. Contributing Columnist, Shottobani