In the Court of Justice Mahmud Hossain

Shayan S. Khan
Thursday, February 8th, 2018


 

Following a series of incidents without precedent that threatened to cripple the dispensation of justice in the country, this week presented the chance, finally, for the judiciary to get back on its feet again with the appointment of a new Chief Justice. Justice Syed Mahmud Hossain took oath as the 22nd Chief Justice of Bangladesh on February 3rd, at what constitutes possibly the most fraught period in the history of the institution to which the keys now pass to him, the Supreme Court.

 

Forthcoming proceedings in the court will determine history’s judgement of the man who preceded him, Justice S. K. Sinha, who certainly took to the task with a relish, and rocked the boat in a few matters, quite unlike those who came before him.  Right from the outset, Justice Sinha signalled his intent to leave his mark on the position, and thereby the country’s judicial system, by going against the grain. It would prove to be his downfall in the end, as he was forced into resigning his post last October under distressing circumstances, the very first chief justice to do so, over the entire fracas kicked up by certain observations he made in authoring his judgement in a case that struck down the 16th amendment to the constitution.

 

Since then, for over three months, the country was forced to make do with an acting chief justice, as the government, or rather the president, obviously took much greater care this time, in nominating the next person to fill the nation’s top judicial post. On more than one occasion, the law minister was pushed by the media on the subject of the delayed appointment – previously, the longest the country had been without a permanently appointed chief justice was 13 days. At one point, he lashed out in response, “I cannot say when, where and how chief justice will be appointed…it is his (president’s) matter.”

 

The president’s matter, only to to the extent of course, that the constitution allows the president to act, only upon the advice of the prime minister and his or her cabinet. And such advice is passed on in what is considered to be privileged communication, and hence we are not privy to what is said. This, along with the procedure for electing a president in the first place, which is by majority vote in parliament, ensures a latent bit of politicisation around judicial appointments anyway.

 

When the announcement finally came last Friday, there was little scope to raise too many eyebrows. With the recent retirement of Justice Nazmun Ara Sultana, the ignominious exit of Justice Sinha, and the perceived unpredictability of Acting Chief Justice Wahhab, that left only four Appellate Division judges to choose from. Justice Syed Mahmud Hossain was the senior-most, and he carried with him some other advantages. Previously, he had twice been chosen to head the 5-man search committee that the president relied upon to appoint the country’s Election Commission, in 2012 and 2017.

 

Justice Wahhab is understood to have tendered his resignation upon being superseded, and so the new chief justice is now the head of an Appellate Division manned by just four judges, down from eleven in 2009.  The chronic crisis of judges at the Appellate and High Court divisions has caused a huge backlog of pending cases. The four Appellate Division judges are dealing with more than 16,000 cases. On the other side, 84 HC judges (down from 100 in 2012) are dealing with over 400,000 cases. In the lower courts, around 1300 judges are hearing a whopping backlog of more than 2.8 million cases as of 2017. Some 400 posts of lower court judges remain vacant.  According to the numbers provided by the law minister himself in parliament recently, some 3.3 million cases remain pending in the country’s various courts.

 

The previous chief justice, on more than one occasion, had insisted upon expediting the process of appointing new judges to the High Court in particular, but to no avail.

 

“I advised the government to appoint eight additional judges to the High Court in August 2016 after a long discussion with the law minister,” he told the National Judicial Conference in the capital’s Bangabandhu International Conference Centre in December  2016. “On mutual consent, a recommendation was sent to the government for appointing the judges, but the process has yet to see the light.”

It is yet to see the light still.

 

A man for all seasons

 

Addressing the enormous backlog of cases stands as the principal administrative challenge facing the new chief justice as he takes office. The law minister has repeatedly said new judges will be appointed ‘soon’. But it’s difficult to know how definitively one should take his assurances.

Soon after his swearing-in, speaking at a reception accorded to him jointly by Attorney General Mahbubey Alam and Supreme Court Bar Association President Advocate Zainul Abedin, Chief Justice Hossain himself acknowledged the issue, saying  “It is said the bar [association] and the bench [SC] are two feathers of a same bird. One of them is inactive without the other. So, case backlog is a problem not only for the court. It is a reason for uneasiness also for the bar. If the piles of cases increase, faith and confidence of the justice seekers towards the bar will decrease.”

 

To that end, he said the trend of filing adjournment petitions ‘without any reason’ has to stop. Justice Hossain also touched upon a theme put in place by his predecessor, that of ‘digitalisation of the judicial process’, and asked for everyone’s support in welcoming the change that will take place due to digitalisation.

 

In his statement, the SCBA president noted that Justice Hossain was appointed as a deputy attorney general in 1999, and as an additional High Court judge in 2001 (during the regime of the then Awami League-led government), while he was confirmed as the HC judge in 2003, when BNP was in office. Later he was elevated as a judge of the Appellate Division on February 22, 2011 for his “competence and quality”, Advocate Abedin, a senior leader of the BNP, added.

 

Justice Hossain certainly comes with immaculate credentials against his name. During his time at the High Court, he has authored some landmark majority judgements on its behalf. His judgements bear the mark of his extensive knowledge of case law, and he has a knack for using international law as a guide for interpreting domestic law. They also reflect the utmost faith that he reposes in the Constitution. Judges, by convention, tend to be cagey with the press. Our best hope for getting to know the man and what sort of chief justice we may expect him to be, probably lies in sifting through some of the judgements he has been involved in, or authored. This is what we found:

 

BNWLA v. Government of Bangladesh

 

In 2008, following widespread reports of sexual harassment,  the Bangladesh National Women Lawyers Association (BNWLA) brought before the Supreme Court a writ against the Government of Bangladesh on sexual harassment. After noting that there were no specific legislative provisions for addressing sexual harassment of women and girl children, the Court found that there was an urgent need to address this issue, and invoked its responsibility under art. 102 of the Constitution for enforcing fundamental rights in the absence of legislation. Justice Hossain authored the majority judgement.

 

In it, the Supreme Court defined “sexual harassment” and laid down directives in the form of guidelines to protect women and girl children from sexual harassment at the workplace and educational institutions in both the public and private sectors “to be followed and observed … until adequate legislation is made in this field.” In formulating these guidelines, Justice Hossain relied on various testimonials of sexual harassment, as well as on constitutional provisions, international instruments and foreign case law, according to the ITC-ILO COmpendium of Court Decisions.

 

“The fundamental rights (…) are sufficient to embrace all the elements of gender equality including prevention of sexual harassment or abuse. (…) The international conventions and norms are to be read into the fundamental rights in the absence of any domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction to interpret municipal law in conformity with international law and conventions when there is no inconsistency between them or there is a void in the domestic law. Protection from sexual harassment and right to education and work with dignity is universally recognized as basic human rights,” Justice Hossain wrote.

 

BLAST v Government of Bangladesh and others

 

In another landmark judgment for women’s rights, the High Court in 2010 declared that “Imposition and execution of extra-judicial penalties including those in the name of execution of Fatwa is bereft of any legal pedigree and has no sanction in laws of the land.” In doing so, the Court cited the constitutional mandate of equality and the state’s international human rights treaty obligations to ensure women’s right to live free from violence, according to the Bangladesh Legal Aid and Services Trust.

 

The bench comprised of Justice Syed Mahmud Hossain (who authored the judgement) and Justice Gobinda Chandra Tagore directed that persons responsible for imposition of extra-judicial punishments and their abettor(s) shall be held responsible under the relevant sections of the Penal Code and other laws. They further directed the law enforcing agencies, Union Parishads and Pourashavas (municipalities) to take preventive measures against the issuing of such “fatwas” in their concerned areas, and to take legal steps for prosecution in case of such occurrences, as appropriate. They directed the Ministry of Local Government to inform all law enforcing agencies, Union Parishads and Pourashavas of the unconstitutional nature of such penalties.

 

In a particularly significant step, the Bench directed the Ministry of Education to introduce educational materials in the syllabi of all educational institutions particularly in madrasahs, on the supremacy of the Constitution and rule of law.

 

Government of Bangladesh v Advocate Asaduzzaman and others (16th Amendment verdict)

 

The supremacy of the Constitution is a theme Justice Hossain returns to in his separate judgement in the controversial case over the 16th Amendment to the constitution, that the Appellate Division of the Supreme Court ultimately judged to be ultra vires, which is to say “beyond the powers”, in this case of the legislature to enact, since it contravenes the constitution. It is notable that all but one of the judges on the 7-member bench, in this case, delivered separate judgements. Even though all the noise was generated by Justice Sinha’s rather rambling yet bold judgement that ran over 500 pages of the 799-page full judgement, Justice Hossain’s crisp, cogent arguments in a 35-page judgement make for intriguing reading, and reveal much about his legal mind.

 

Justice Hossain starts with a meditation on the principle of ‘separation of powers’, noting it to be a sine qua non (essential or absolutely necessary) for the independence of the judiciary, which is “a basic feature of the constitution”. He then brings in the view of views of ex-Chief Justice K. Hossain in Jamil Huq vs. Bangladesh, to establish that “full judicial powers have been conferred by Bangladesh Constitution on the Supreme judiciary as an independent organ of the State,” before moving on to an assessment of the principle in other jurisdictions.

 

By resorting to extensive references to case law, Justice Hossain asserts the “unamendability of the basic structures of the Constitution”, and states that the “Sixteenth Amendment having come in conflict with…unamendability of the basic structures of the Constitution….falls outside the ambit of the constituent power of Parliament.” He then proceeds to a defence of the Supreme Judicial Council, as it existed from 1977 till 2014 (the enactment of the 16th Amendment) as the appropriate instrument for addressing complaints against judges, and notes how the process of impeachment, whereby parliament is empowered to remove judges, has proved unsatisfactory in some jurisdictions.

 

The new chief justice’s conviction in his own judgement is likely to be tested quite early on, as the government has already filed a review plea against the judgement, and it will be one of the most watched cases on the new chief justice’s in-tray as he takes office.

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