How far will the executive-judiciary tussle go in Bangladesh?

How far will the executive-judiciary tussle go in Bangladesh?

Farah Masum,

A year and a half before the scheduled elections, pre-poll tensions in Bangladesh have been overshadowed by the tussle which has ensued between the judiciary and the executive. The issue is being reported in the media partially, while certain matters remain behind the scenes. And speculations abound about where this issue will finally end up. The tensions between these two organs of state had been simmering from even before the judgement on the 16th amendment had been published. The judgement exacerbated the matter and things might worsen further in the coming days.

The latest development in this unfolding event is Awami League general secretary and road transport and bridges minister Obaidul Quader paying a visit to Chief Justice SK Sinha. Quader had dinner at the latter’s house and spent around two hours there. There has been no reliable report on what transpired between the two, but there has been a noticeable change in the activities of both sides since the meeting.

The prime minister was kept informed about the ruling party’s general secretary meeting with the chief justice, though it is not known if she was apprised about all that was discussed. The AL general secretary is generally considered to be close to both the prime minister and to the large neighbor India. However, to the apparent eye, the outcome of his discussions with the chief justice does not seem to bode well for the ruling party.

The 16th amendment had long been a bone of contention between the judiciary and the government. Ever since coming to power, the AL government has been trying to gain control over the judiciary to meet its political goals. As a part of this, certain amendments to the constitution were scrapped, including the 13th amendment which had provision for a caretaker government system. In political cases, leaders of the political opposition were deprived of the routine legal support from the upper courts. The trials of crimes against humanity were carried out, despite the legal procedures of these trials being questioned at an international level.

However, the judiciary took a firm stand when the interests of the judges were involved. It did not acquiesce to the issue of the parliament being vested with the power to impeach judges. Even Justice Khairul Huq who had scrapped the 5th amendment and reverted the constitution almost to its original form of 1972, excused the Supreme Judicial Council provision.

Almost all the judges appointed by the government were in consensus about handing over the power to impeach judges to the parliament, as laid down in the 16th amendment by the parliament unilaterally elected in 2014. So even though the judges of the Appellate Division were appointed during term of the present government, they were in unity about scrapping the 16th amendment. They have taken side with the chief justice, as opposed to the government, in supporting this judgement.

Before declaring this judgement, the chief justice has attended a tea with the president at Bangabhaban. No agreement was reached on reflecting the government’s stance in this judgement. After the judgement was passed, the ruling party general secretary had dinner with the chief justice, but no commitment was made to amend the judgement in any way.

Orders have been issued from the top level of government to launch an aggressive campaign against the judgement. Even level-headed ministers have been hotly castigating the sensitive institution of the judiciary. These attacks reflect the concern and the desperation of the government. Three or four more writ or review petitions related to public interests may also come forward in the manner of the writ against the 16th amendment. These may have a strong impact on the government.

If a case, in the meantime, is filed over Article 116 concerning the separation of the judiciary, then the control of the lower courts will be vested in the Supreme Court and the judge may be consensus about this as in the case of the 16th amendment. If the appointments, promotions, disciplinary action and other measures pertaining to the judges of the lower court is brought under control of the Supreme Court, the scope for the government to use them in political interests will be significantly curtailed. The government will be unwilling to relent in this matter.

The government is concerned about the case pertaining to scrapping the 13th amendment. The case hasn’t been reviewed by the Supreme Court as yet. If the Appellate Division gives its approval, it may come up for review. This has certain fundamental flaws. Firstly, this judgement had been passed on a 3-2 majority. Chief justice of the time Khairul Huq immediately retired after he passed this judgement. He signed the final written judgement of this case about over a year after his retirement. There is no provision in the Bangladesh constitution or the Supreme Court to sign a judgement when not under oath. So Khairul Huq’s judgement may be declared void. If that judgement is declared void, it will remain unsettled. A new bench will be formed to finalise the judgement. Also, in an unprecedented manner, after submitted the judgement, Khairul Huq had recalled it and made some changes and then submitted it again. This has been recorded in the Supreme Court. If the case comes under review, any decision may be taken.

Another point of concern is that the 15th amendment may come under challenge. This may even lead to the caretaker government system being revived. The government’s concern is steadily mounting.

The second significant aspect is that according to the Supreme Court rules, there can be nothing contradictory between the summary of the judgement declared in court and the written detailed judgement. In the summarized judgement, Khairul Huq had spoken of the caretaker government remaining for another two terms, but in the written judgement he left the matter up to the next parliament. Under the circumstances, the government is concerned about the outcome of this case’s review. There have even been recommendations to the head of government to make sure the head of the judiciary steps down before the end of his tenure in office.

Another point of concern is that the 15th amendment may come under challenge. This may even lead to the caretaker government system being revived. The government’s concern is steadily mounting.

It is now apparent that the distance between the government and the judiciary over the 16th amendment. If things proceed in this manner, there are apprehensions within the government of a Pakistan-style Panamagate which shook up the government there this year. These apprehensions have grown further due to the attitude of diplomatic missions of certain influential countries. The European Union has called for a halt to abductions, killings and other human rights violations, to stem the flow of illegal migrants from Bangladesh to Europe. The big neighbor is also eyeing the Bangladesh government with suspicion for its leaning towards Chinese investment a la Nepal and Sri Lanka. Delhi sources say by September it may change its Dhaka mission head with a more trusted individual in order to implement the central government’s political strategy.

The government may see several matters of consternation popping up in the days to come. Under these circumstances, the government is juggling between hard and soft strategies to confront or compromise with the judiciary, in order to iron out the tensions and conflict.