Controversy engulfed the Supreme Court Chief Justice Surendra Kumar Sinha since the days of a judgment passed by a constitutional bench headed by him.
The Appeal bench of the Supreme Court ruled the fate of the judiciary not be decided by the Parliament. The judiciary needs to be independent in matter related to appointment of judges as to be the sole purview of the learned Court to function under the presidential authority. The landmark judgment passed by the Apex Court bench headed by the Chief Justice has been alleged to have curbed the rights and privileges of the Members of Parliament in selecting the Justice in the Supreme Court having the power to remove any siting judge if considered unwanted. Such privilege and power is however enjoyed by the authoritarian states in the world.
The pro-active judiciary of Bangladesh headed by Justice Sinha has become a soft target of political attack. The ruling dispensation unearthed a story of anti-national activity of Mr. Sinha during 1971 liberation war alleging his so-called involvement with Shanti Committee, a heinous Pakistani sponsored outfit responsible for indiscriminate massacre of Hindu community. Youth Women wing of the ruling Awami League in Dhaka in a recent meet has blamed Mr. Sinha a tout of the opposition Bangladesh National Party, who had no Hindu identity but was out to destabilize the Hasina Government.
Both the food minister Kamrul Islam and one junior minister Biren Sikdar has publicly demanded removal of Shri Sinha from the post of chief justice of Supreme Court in presence of the Prime Minister of Bangladesh. The Prime Minister Sk Hasina countered the observation of the judgment while talking to few Hindu puja organizers in Gana Bhawan. She affirmed it was one and only his father Sk Mujib brought freedom who was ordered to be hanged to death by the Pakistani ruler Yahia Khan. But the deceased President Jia Ur Rahman was spared by the Pak forces occupied Bangladesh. After the judgment passed, rumour of corruption has been orchestrated against Justice Sinha who was once very close to Sk Hasina and who made the chief justice of Bangladesh.
In his full bench judgment, the Chief Justice observed,“ the nation was not built by a single person. If we really serious, we must desist from talking individual pride in nation building which is a self-defeating step and it goes against the desires of the assassinated father of the nation, Sk Mujibar Rahman.” Mr Sinha has however been misquoted and misunderstood the meaning of ‘single person’ meant Sk Mujibar Rahman in the rank and file of the ruling leadership, according to the text of the judgment available with the bdlawforum.com. It seems the things may not rest until removal of the controversial justice from the four walls of the Court, the stand is however received with lukewarm response among the citizens of Bangladesh.
A seven member Supreme bench heard the appeal against the High Court judgment on whether or not the Supreme Judicial Council should have the power and right to decide appointment or removal of Judges under the Presidential authority instead of the existing process of Parliamentary assent and endorsement. Five Justices out of seven passed the judgment in favour of Supreme Judicial Council. The dispute brewed with an amendment of Article 16 of the Bangladesh Constitution by Sk Hasina government that has empowered the members of the Parliament to appoint or remove any Judges of the High Court and Supreme Court including Chief Justice of Bangladesh. The High Court has ordered for outright rejection of the unconstitutional power of the members of the Parliament and desire of the government in the matter.
In dealing with the case, the learned High Court summarily rejected the power of the Parliament on Judges appointment or removal. The HC has pulled up the MPs those are empowered to decide on the issue of judges’ appointment/ removal through an unconstitutional amendment of Article 16 by the present ruling dispensation headed by Sk Hasina. While the government put up the issue for a review of the High Court order at the Appeal Court of a 7 Judges Constitution bench by Chief Justice of the Supreme Court, the Apex Court reiterated the observation of the High Court and viewed the amendment of Article 70 pursued by the present government found to be also highly unconstitutional on the ground that the ruling MPs shall be bound to say yes to any proposal tabled by the government in order to retaining their membership with the Parliament. Even disfavoured with, no ruling party MPs will dare to oppose through action on anything put forwarded by the government, which accordingly to the Appeal Court headed by the Justice Sinha has made the MPs as slaves of their masters at the top. The arbitrary amendment of Article 70 has chained the people’s representatives in the Bangladesh Parliament. Thus the very spirit of the Constitution has been diluted.
The Appeal Court has upheld the observation of the High Court that getting endorsement of the MPs of the ruling party through the compulsion of the amended Article 70 would subject the Judges to be appointed or removed as per wishes of the party high command, nevertheless, the amended article would check recurrence of the disobedience of the party whip in the Parliament, in a way it would make the constitutional democracy a mockery. In the same breath, the Chief Justice has disapproved the High Court observations on attack on the poor standard and quality of the some MPs nominated by the ruling party who should have no moral right to adjudge the quality of the Judges as to be appointed or removed. The appeal court bench has summarily disapproved hard hitting speeches in un-parliamentary language by some MPs on the floor of the house against the judgment of the High Court on the issue. In his delivery of judgment, CJ Sinha found the state of disrespect to each other as uncalled for and sought good sense to prevail on both Judiciary and Parliament and both should possess respect to each other in a democratic polity.
The bench headed by CJ S K Sinha regretted that Bangladesh was yet to evolve a mature democracy with mutual respect and tolerance to each other. All Constitutional bodies include Election Commission, Accountants and Auditor, PSC are not yet allowed that much of autonomy that can ensure free and fair surveillance for good and transparent governance responsive to the people. The nomination and selection of the fittest candidates in all these bodies without any influence from the vested interest would have strengthened the People’s Republic.
In delivery of the judgment, the Chief Justice mentioned 21 times the name of the father of the nation, Sk Mujibar Rahman and regretted that his dream for a secular transparent people’s democracy was yet to find ways in Bangladesh. Each time a set of new rulers have played with the nation since 1961 when “Bismillah Rahim e Rahim” was included the Pakistani Constitution with tacit approval of their military junta. With the victory of the liberation war, a new Constitution in 1972 having included with secularism, socialism and parliamentary democracy having a faith on an independent Judiciary and Press that was made of blood of the martyrs saw the light of the day. But the assassination of the father of the nation, the dream for an ideal nation buried. Following the path of the Pakistan, Bangladesh military junta headed by both Jia-ur-Rahman and General Ershad has illegally altered, abused our ideal constitution to fit their evil purpose. “Bismillah Rahim e Rahim” was finally placed at the helm of the constitution by replacing the secular democratic socialist republic constitution of Bangladesh under Sk Hasina government. Yet successive governments have failed to rehabilitate the 1972 Constitution and compromised with the values as pronounced by their father of the nation. Islamisation of Bangladesh is near complete.