New low in the dispensation of justice?

The process of the dispensation of justice has suffered a new hit in Bangladesh. Across the country, citizens are dismayed at what appeared to be a blatant violation of independence of the judiciary.

The unfortunate events unfolded on Tuesday after the District and Sessions Judge of Pirojpur, Md Abdul Mannan, rejected bail petitions and ordered the authorities to send AKMA Awal, the president of the district Awami League (AL) and former member of parliament, and his wife, to jail. Three cases were filed by the Anti-Corruption Commission (ACC) last year against the ex-MP for obtaining the lease of government land using fake documents. His wife was accused in one of the cases. Hours after the bail rejection, Judge Mannan was stand released and attached to the law ministry. Almost immediately, his subordinate Judge Nahid Nasrin was given the responsibility of acting District and Sessions Judge. Later that day, she granted bail to the two accused.

Opposition parties, jurists, the lawyers' fraternity and activists have sharply reacted to this patent breach of independence of the judiciary. They claim that the incident has eroded people's faith in the judicial process and damaged the judiciary's image. Terming the episode unprecedented, the corruption watchdog Transparency International Bangladesh (TIB) expressed concern that the incident would further strengthen vested interest groups who want to establish the culture of impunity. TIB felt it will create a dreadful example that will strangle the rule of law, justice and accountable democracy.

The president of the Supreme Court Bar Association argued that from the Pirojpur event, it appeared that a person could secure bail through the court on the government's directives, and demanded the resignation of the law minister. The minister binned the claims, and justified the decision to stand release the judge "to bring the situation under control" and went on to claim that the concerned judge was "insolent and rude" towards lawyers and "people took to the streets". His other explanations are no less baffling.  "If the court behaves in such a manner and creates a situation where law and order and upholding of the rule of law come under question, then a step has to be taken. Under such circumstances, the step has been taken. There was no violation of the law", he asserted.

In a further twist to this bizarre tale, the chief protagonist AKMA Awal has pointed the finger at a sitting minister for influencing the original "illegal rejection of the bail prayers".

The Pirojpur district court episode has given rise to some important insights.

Firstly, the local AL president and former lawmaker has been accused by the ACC of fabricating documents, presumably using his authority to unlawfully gain control over government land. Secondly, Judge Mannan had to lose his position for a decision that he had taken in good faith, a decision that did not augur well in some powerful quarters. Thirdly, it reflects tensions that plague key power-holders within the ruling party.

Finally, and more importantly, the reaction of the law minister, the most important officeholder tasked to ensure the rule of law, is quite revealing. Instead of expressing regret over this unsavoury development, he justified the action against the judge in unequivocal terms. The minister said that one of the grounds for removal was the judge's "insolent and rude behaviour" with the lawyers of the local bar. This begets the question—aren't there procedures in place to take action against such misdemeanours of the judges, if indeed they take place? If the answer is yes, then were those procedures followed in Judge Mannan's case, and was he given the opportunity to present his case to a competent authority before the summary action was taken? On the contrary, isn't the decision of Pirojpur Bar to boycott the court in the wake of bail rejection tantamount to contempt of court and a breach of the "Cannons of Etiquette" framed by the Bangladesh Bar Council, which all bar members are bound to maintain? It also leads to a larger question: doesn't this set a dangerous precedent in which lawyers linked to the ruling party, disgruntled by a verdict, will press frivolous charges of misdemeanour against the judge and create ground for the latter's removal, and subsequently get to reverse or amend the original verdict?

The law minister has invoked the law and order question to further justify his action. "Bringing the situation under control" was his ultimate rationale to remove the judge. One wonders if the law minister draws his wisdom from a shadow jurisprudence that obligates judges to consider not only the merit of the case under the law, but also to take into consideration possible ramifications of their pronouncements on public order. Jurist Shahdeen Malik has already asked—isn't the law minister sending a message to other judges that they risk being "attached to the Ministry" if their verdicts negatively impact the law and order situation? Doesn't the case also signal a new reality in which, along with police, RAB and other related agencies, the onus now also rests with the judiciary to enforce the law?

Analysts have raised some important legal questions. Article 116 of the Bangladesh Constitution reads: "the control (including power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court". Until now, it is not clear if the Supreme Court was indeed consulted in the Judge Mannan case and if so, in what form that consultation took place within that narrow time margin.

Under Section 20 of the ACC Act of 2004, only Special Judges have the jurisdiction to try cases. The additional district judge who became the Acting District and Sessions Judge after the stand release of Judge Mannan (and subsequently granted bail to the Awal couple) was not accorded the power of Special Judge and thus was not duly authorised to try the ACC case at all. Therefore, as analyst M R Khan has argued, there is every reason to believe that the controversial decision to grant bail by the substitute judge suffers from Coram non judice (without a judge or without jurisdiction).

The Pirojpur case was not the only instance of summary removal of a judge for pronouncing an unfavourable verdict. On June 4, 2014, when local police authorities refused to record a complaint of custodial torture related death against a RAB official, the senior Judicial Magistrate of Brahmanbaria District, Nazmun Nahar, ordered the Officer-in-Charge (OC) of Nabinagar Police Station to register a First Information Report on a case involving death due to alleged custodial torture of one Shahnoor Alam. On June 5, the Magistrate was withdrawn from the case, or "closed", for allegedly issuing the order to the police to record the complaint. On June 8, 2014, Magistrate Mohammad Kawsar of Brahmanbaria District and Session Judge Court, amended the previous order given by Nazmun Nahar; and instructed the OC to take the case only after investigation.

The stand release of district judges and the subsequent reversal of their judgements by substitute judges demonstrates the strain under which the country's lower judiciary has to function. It also reflects the degree of control that the executive branch wields over the process of dispensation of justice. All these make the claim of the existence of an independent judiciary fairly tenuous. It is time that the concerned authorities commit to and act for the full independence of the judiciary, in which the Ministry of Law and Justice can only be concerned with matters pertaining to the drafting of laws, supervising the work of the attorney general's office, public prosecutors and the likes, and advising the government on legal issues, leaving the whole gamut of dispensation of justice to the Supreme Court. Only such an arrangement can ensure an independent and robust judiciary and regain people's trust in this important branch of the state.

C R Abrar is an academic and rights worker.