BD first Hindu CJ forced to leave amid row with govt

DHAKA: Surendra Kumar Sinha, Bangladesh’s first Hindu Chief Justice, is believed to have been forced to go on a leave amid reports that the government was upset with him over his decision to scrap parliament’s authority in impeaching Supreme Court judges, India media reported on Saturday.

Sinha, 66, left for Australia last night, saying he was “embarrassed” over the controversy
surrounding his July ruling. He also denied claims by the government that he was sick. “I am the guardian of the judiciary, in the interest of the judiciary I am  leaving temporarily so that its image does not get hurt. I will return,” he said ahead of his departure for Australia.  But Sinha added he “firmly believes” his stance over a recent verdict was misinterpreted to the government, upsetting Prime Minister Sheikh Hasina but expected her to realise the fact soon.

He also rejected an earlier claim by Law Minister Anisul Huq about his sickness while his leave application to President Abdul Hamid was being processed. “I am not sick, I am well... I am not fleeing either,” the chief justice told newsmen in front of his official residence while on his way to the airport.  He also issued a written statement, in first such media interaction since the government announced his one-month “sick leave” beginning October 3.

Sinha, however, added the way a “political quarter, lawyers, and especially some honourable ministers of the government and the honourable prime minister are criticising me recently over a verdict embarrassed me.”  The government row with the higher judiciary sparked in July this year when the apex court delivered a verdict declaring void the 16th constitutional amendment, scrapping parliament’s authority in impeaching Supreme Court judges.  The dispute grew in the subsequent weeks as several senior government leaders virtually attacked Sinha over his comments, blasting the government for its reaction and gave Pakistan’s example where ousted Prime Minister Nawaz Sharif was stripped of his premiership under an apex court ruling.

Prime Minister Hasina accused him of defaming parliament and president and “humiliating” Bangladesh by referring to Pakistan’s instance premier’s removal saying “he (chief justice) should have quit (and) the most humiliating thing is the comparison with Pakistan which is intolerable.”

Main Opposition outside parliament Bangladesh Nationalist Party of ex-premier Khaleda Zia has supported Sinha, saying the government was trying to control the higher judiciary by launching a campaign against the apex court judgment.

Hours ahead of his departure, BNP Secretary General Mirza Fakhrul Islam Alamgir said that the government forced Sinha to go abroad to “establish its full control over the judiciary.” “It’s now clear to the entire nation that the government has taken all the steps to send the chief justice abroad by force,” he said.  Sinha, Bangladesh’s first Hindu chief justice whose tenure expires in January 2018, in his written statement said he was a “bit worried about the independence of the judiciary.” He complained that the judge who became the acting chief justice to perform the “routine” job in his absence was encouraged by the government to bring changes to the Supreme Court administration soon. “If any interference is made in the chief justice’s administration, it can be easily assumed that the government is interfering in the higher court and this will further deteriorate the relationship between the judiciary and the government. It would not bring any good to the state,” he concluded.

Hasina said, “People’s court is the biggest court; no one can ignore people’s court…I’m lodging my complaint with this court… I want justice from the court of people,” she said. “When you (chief justice) make criticism in this regard, then you will have to accept other…so you should have stepped down before making such a comment,” she said.  The row emerged in May when the apex court first refused to accept a government formulated code of conduct for lower judiciary judges, saying it undermined the Supreme Court in regulating them. Bangladesh’s original 1972 Constitution had empowered parliament to remove Supreme Court judges but a 1975 amendment entrusted the President with the authority.  In a subsequent amendment in 1978, when a military regime was in power, the authority was bestowed on Supreme Judicial Council, comprising apex court judges.

Attorney General Mahbubey Alam confirmed his decision to bdnews24.com on Monday, a day before the Supreme Court is set to open after a one-month break.

Some of the chief justice's observations in the verdict that took away parliament's powers to sack judges have antagonised stalwarts in the ruling Awami League.

Pro-Awami League lawyers had threatened to start a campaign against Sinha after the end of the court's vacation phase.

The chief justice asked for a one-month leave from President Md Abdul Hamid, effective from Tuesday, the day the court is set to open. "As far as I know, he (Chief Justice Sinha) is going on leave from tomorrow."

The President's Press Secretary Joynal Abedin refused to comment when approached by bdnews24.com.

Justice Md Abdul Wahhab Miah, the most senior among appellate judges after Sinha, will carry out the duties of the chief justice in his absence. Sinha, who had on various occasions pulled up the government for “undermining” the judiciary, has three months left in office before his retirement.

Bangladesh’s Parliament raised the stakes in a stand-off against the judiciary last week by passing a unanimous resolution to take “proper legal steps” over a Supreme Court verdict nullifying the Constitution’s 16th amendment. The amendment, passed in 2014, had empowered Parliament to remove judges of the Supreme Court found incompetent or guilty of misconduct, based on a two-thirds majority.

This amendment had in a way restored the power of Parliament to impeach judges and was in line with the original Constitution of 1972. The Supreme Court had in July this year scrapped the amendment, suggesting that it was antithetical to the independence of the judiciary and restored the Supreme Judicial Council, headed by the Chief Justice, with powers to remove errant judges.  The Parliament, dominated by the Awami League, not only resolved to reverse the Supreme Court’s decision, but also found fault with Chief Justice SK Sinha’s comments in this regard. He had said that the Constitution was a product of the collective will of the people and not just one individual, which was interpreted as an affront to “Bangabandhu”, Sheikh Mujibur Rahman, by the ruling Awami League.

The largest party in opposition, the Bangladesh Nationalist Party (BNP) had welcomed the Supreme Court decision but its position seemed to be guided more by schadenfreude and less by a clear-cut position on the judiciary’s independence.

The Supreme Court’s contention is that Bangladesh’s political system is unlike the parliamentary systems in the United Kingdom and India, for example, where legislators are empowered to impeach judges. Bangladeshi MPs do not have the freedom to vote on conscience on issues including impeachment, bound as they are by Article 70 that prevents legislators from voting against their party’s decision on any matter. This prevents a dispassionate deliberation over any prospective impeachment, giving political parties, and those in the executive undue influence over appointments in the judiciary.

Instead of taking a course of confrontation against the judiciary, Bangladesh’s parliamentarians and its attorney general would be better off proceeding with a review petition to the Supreme Court and presenting their position dispassionately. The Supreme Judicial Council might have had a legacy connecting it to the country’s authoritarian past, but the arguments of the Supreme Court that it is seeking to protect judicial independence from the executive in light of other laws that bind legislative work in Bangladesh need to be contested by the government point by point — not by a mere resolution.