Bangladesh's confused courts

Bangladesh's confused courts
RATER ZONAKI
October 8, 2007
Source: UPI Asia Online

Column: Humanity or Humor?
Bangladesh is witnessing a show of legal battles in the country's courts. Since the state of emergency was imposed last January, the military-backed government has been arresting and detaining numerous people every day under the Special Powers Act-1974 and later, under the newly imposed Emergency Powers Ordinance-2007 and the Emergency Powers Rules-2007.

Now a debate is under way, in the Supreme Court as well as among the public, as to whether or not detention orders issued by the government can be challenged. High Court judges have expressed confusion as to whether or not they are allowed to hear petitions lodged by detainees and grant them bail.

The debate moved to the Appellate Division of the Supreme Court for a decision. After months of intense debate, the Appellate Division decided that the High Court judges did have the authority to respond to petitions from detainees, despite the suspension of the fundamental rights of citizens during the state of emergency. This decision supported the action of the High Court, which had already granted bail to a number of detained persons. This did not stop the government, however, which in many cases implicated the same persons in other charges as soon as the court ordered their release.

Needless to say, continuing their legal battles in the High Court was a horse race for the rich, who can easily afford the high costs of carrying their cases all the way to the Supreme Court.

Debate on the role of the courts has increased following the recent decision to grant bail to high-profile persons including the two former women prime ministers, Sheikh Hasina and Begum Khaleda Zia. When Hasina was charged with graft and arrested in mid-July, she challenged the action in the High Court. The court granted bail to the former prime minister and asked the authorities to release her. However, the Appellate Division, presided over by Chief Justice Mohammad Ruhul Amin, overruled the order of the High Court and asked that the case be taken to trial.

A similar thing happened in the case of Khaleda Zia, who filed a petition with the High Court, which granted her bail, and the Appellate Division overruled it. Her lawyer reportedly complained that the Appellate Division did not explain why it stayed the High Court's order. Other such incidents have occurred in the Supreme Court, which is the last resort for those seeking justice.

Leaving aside the matter of the subordinate courts, it is not the intention of this writer to criticize the role of the highest court of the country. Rather, it is interesting to note that the decisions of the two branches of the Supreme Court contradict each other, although they adjudicate depending on the same laws. This practice raises many questions in the people's minds, although few dare to question the decisions of the courts despite their controversial rulings, for fear that contempt-of-court charges could be brought against them.

Why are the High Court's and the Appellate Division's decisions so radically different on the same issues? Do the judges of these two branches of the Supreme Court belong to two different ideologies depending on their superiority? Which is right and which is wrong according to the judges' conscience, as far as delivering justice for citizens is concerned?

In reference to this contradiction, Chief Justice Mohammad Ruhul Amin commented in a public meeting: "I won't say this occurrence is totally absent ... Some points of law are being relaxed for some people and made tougher for some others. As a result, what verdict a judge delivers on a point today gets changed the next day." He was responding to a senior lawyer's point that some judgments were delivered considering "something else," not based on the arguments of the case.

One can only imagine the frightful state of affairs in the judiciary of Bangladesh when the chief justice admits this in public.

A lot more fun lies ahead for the nation. A number of special tribunals have recently been established by the Anti-Corruption Commission to try cases of corruption. The trial rooms have reportedly been cordoned off by the armed forces while at least one army officer remains present in front of the judge during the trials. Relatives of the accused persons and media are denied access, however. As a result, the trials that take place in these courts have raised questions among the public, although the people indeed want to see corrupt people brought to trial.

Many former ministers and lawmakers, as well as their family members, have been convicted in the Anti-Corruption Tribunals in recent months. The defendants are expected to challenge these verdicts in the two branches of the Supreme Court. According to the chief justice's admission concerning practices at the topmost level of the judiciary, can anybody be optimistic about the impartiality of the courts? Will the final judgments depend on "something else" rather than the merits of the cases? If legal points are "relaxed," what is left to adjudicate?
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(Rater Zonaki is the pseudonym of a human rights defender living in Sylhet in Bangladesh who has been working on human rights issues in the country for more than a decade and who was a journalist in Bangladesh in the 1990s.)