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Justice embarrassed is justice denied

Professor M. Shah Alam
THE first word 'justice' in the headline above actually means, for the purpose of our write-up, justices, quite substantial in number, who expressed embarrassment to hear or take part in the proceedings of the case of the killing of Bangabandhu Sheikh Mujibur Rahman. The result has been unfortunate and undesirable for law and justice.
For reasons of the Indemnity Ordinance and of politics, it had not been possible for long twenty-one years to file a case for the killing of Bangabandhu. But once the case could be filed and litigation started, its procedure was remarkably fair and transparent. After the Indemnity Ordinance was repealed in November 1996, the then Government, followers of Bangabandhu, could, if they so wanted, enact necessary law to establish special tribunal for expeditious disposal of the case which involved gruesome killing of Sheikh Mujibur Rahman along with members of this family. But it decided to proceed with the trial in the regular courts under existing law, forgreateracceptability and transparency.
The whole nation keenly observed from the beginning of 1997 to November 1998 how the litigation was conducted in the sessions judge's court in Dhaka. Defendants enjoyed all procedural and substantive rights to plead the case. There were also interventions by the High Court Division of the Supreme Court, for example, during the trial, Mrs Zobaida Rashid was relieved of the charges by the High Court Division. Writ challenging the legality of the repeal of the Indemnity Ordinance was dismissed by the same court. Petition was also filed to the higher court seeking to halt the proceedings in the trial court, but did not get success. In November 1998, learned Sessions Judge pronounced death sentence to fifteen of the accused.
Thereupon, started a new phase of the suit in the High Court Division where appeal against the lower court verdict and death reference were combined for hearing. At this stage, several honourable judges of the High Court Division expressed their feelings of embarrassment and refused to hear the case. Because the honourable judges felt embarrassed or some High Court Division benches advised the parties to go to the appropriate court at appropriate time, the process for final disposal of the case remained stalled. Ultimately when the appropriate court was found, there was split judgement, which was finally decided by the third judge, appointed for the purpose by the honourable Chief Justice. Then came the time for final appellate hearing in the Appellate Division where a fresh round of feelings of embarrassment by the honourable judges started.
In August 2001, after an honourable judge of the Appellate Division withdrew from the leave to appeal hearing following a provocative statement by the defence lawyers, the case was halted at the door of the highest court. The case is still there, as three judges who do not feel embarrassed to hear leave to appeal petition are not yet available. Five out of the seven judges currently sitting in the Appellate Division are unable to hear the leave petition either because they are embarrassed or because they were involved at the earlier stage of the case. On the other hand, for political reasons it appears unlikely that the present Government would appoint an ad hoc judge to make a division of three judges necessary to hear the petition. Result is that the final disposal of the suit is stalled, with no apparent sign of movement forward in the nearfuture.
The process for final disposal of a case can be so stalled, and as a result, a person can be deprived of justice. But it was never so strikingly seen to happen before. Naturally the question which is increasingly becoming prominent in the minds of the people at large is why the case which has passed its long procedural and substantive stages transparently, and is legally awaiting leave to appeal hearing would face the fate of being so stalemated? We need to understand what is 'being embarrassed' means. Is it devoid of any legal content or it is a matter solely of subjective wish of the judges? Can such a state of things be allowed to continue indefinitely if it would lead to any possibility of negation of justice?
To feel embarrassed and not to hear a case on that ground alone ought to have a moral and legal basis. Whether it is solely a matter of subjective wish of the judges is a question that needs to be asked. For the judges to refrain from judicial activities without valid reasons is contrary to the principle of justice. It is failing in duty too. What the judges say or do cannot solely be a matter of personal wish or desire. It must be based on law and justice. Judges enjoy the power of discretion, but it must be applied judiciously.
When a judge is involved in one stage of the proceedings of a case, legally he cannot take part in any subsequent stage of the same case. For example, if a judge is related to any party by marriage or by blood, or if he has business or any other common interests with the parties, he can feel embarrassed and withdraw from the hearing of the case, or the higher court can for the same reasons prevent him from hearing the case. If an honourable judge feels embarrassed for any other reasons, he must give his reasons. Mere subjective statement expressing the feeling of embarrassment is not sufficient; it must be objectively justified. The right of feeling embarrassed ought to be judiciously applied. It is not valid to feel embarrassed without specific reasons.
Honourable judges of the High Court Division and Appellate Division of the Supreme Court who have expressed embarrassment in the Bangabandhu murder case have
done so without specific or adequate reasons except the present Chief Justice. If the honourable judges of the highest seat of the judiciary who are the constitutional pillars of the edifice of rule of law transform the matter of being embarrassed totally into their own subjective thinking or wish, where will the citizens go for ultimate justice? Other consideration aside, Bangabandhu Sheikh Mujibur Rahman was a citizen of Bangladesh. His kith and kin have also a right to get justice. Why the highest court cannot conduct the litigation, which the lower court already did? Shall it not undermine the confidence of the general people in the highest court? Is it not a crisis of the rule of law?
What will be the appeal outcome of the Bangabandhu murder case is not the issue now. Surprisingly, whether the judges are ready to hear the appeal or even the leave to appeal has become the main issue. To feel embarrassed and to refrain from judging for reasons of personal wish has to legal acceptability.
Professor M.ShahAlam is the Dean of Department of Law, University of Chittagong.