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Govt should explain judges' embarrassment

Kamal tells The Daily Star
The state is responsible for prosecuting the killers of Bangabandhu and the government has failed to carry out this constitutional duty, Dr Kamal Hossain said in an interview with The Daily Star yesterday, on the 30th anniversary of the August 15 tragedy.
The constitution empowers the government to appoint judges on ad hoc basis to resume hearing of Bangabandhu Murder Case, but unfortunately the government, being reluctant to pursue the case, is continuously showing disrespect to the constitution, he said.
Asked if the government is accountable to people to explain why the judges are being
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embarrassed to hear the case, Dr Kamal said, "Government should explain this."
"The government owes the expectations to the people. The people are concerned that criminals are not being prosecuted and punished in accordance with law. It is the responsibility of the state and the government to give the people and explanation."
The Bangabandhu Murder Case remains pending since August 2001 after four of the 12 convicts filed leave to appeal petitions in the Appellate Division and the judges felt "embarrassed" one after another to hear the sensational case. The 12 were sentenced to death for killing Bangabandhu and his family members on August 15, 1975.
The eminent jurist said the protracted delay in the hearing of the appeal of the persons convicted is a serious concern among those who have respect for the constitution.
"A criminal trial and any appeals arising out of it should be expeditiously disposed of. This is because of the dictates of justice," he said.
The constitution expert observed that a society that respects the rule of law legitimately expects that those who are responsible for carrying out a crime, and a crime [Bangabandhu murder] of such magnitude, should not escape justice.
The constitution assures its citizens that those who are guilty of a crime shall not escape punishment in accordance with law. This is the expectation that remains unfulfilled when an appeal against a conviction remains pending for several years, he added.
"The fact that some judges may not be available to hear the appeal because they had heard the matter in the High Court division is not a ground for endless delay."
He also said that there is a clear provision in the constitution which empowers the government to appoint judges on ad hoc basis to hear the appeal.
"It is normally the state's responsibility, as it is the state which prosecutes criminals, and it is the State upon which the constitution vests a duty to see that prosecutions are effectively conducted and that judgements are obtained," Dr Kamal said.
"And any appeal against judgements are disposed of expeditiously, so that, those convicted are meted out punishment in accordance with law, which is therefore the manifest failure . on the part of the state to carry out its constitutional duty not to take any steps to see that the pending appeals are disposed of without further delay and that punishment according to the judgement is meted out," he
continued.
Regarding judges being embarrassed to hear the appeal of the case, Dr Kamal said, "Some judges in the Appellate Division of the Supreme Court expressed their inability to sit and hear the appeal on the ground that they are embarrassed. One of the grounds could be that they had heard the matter in the High Court division or it could be that they have some special relationship with any of the parties."
"Or there may be other grounds which they have to indicate why they are embarrassed. But being embarrassed does not mean that ad hoc judges cannot be appointed to constitute the bench," the constitution expert said.
"And this is clearly provided by the constitution that if you cannot have sufficient number of judges to make a bench in the Appellate Division, you can appoint ad hoc judges and the state which is entrusted with the duty of prosecution must take the initiative to move in the matter for appointment of ad hoc judges."
Asked about the government's role in appointing judges, Dr Kamal said, "Government must initi-ate.Government must be accountable to the entire nation for its continuing failure to discharge its constitutional duty. Unfortunately, we find that we have those, now in the government, [that] are continuously showing disrespect for the constitution."
"The disrespect they are showing to the constitution is something that cannot but be condemned by all who would want to see the constitution being respected by all citizens or would like to see that the constitution is respected," he added.
Asked if the judges should be accountable for their embarrassment, Kamal said, "By practice this question arose earlier on and it was set thereafter, that when a judge says 'he is embarrassed', he would state his reasons and communicate it to the chief justice."
There have been cases where the chief justice had not excepted this ground, and then required that just to hear and dispose of the case, he added. ".
The chief justice has the discretion to decide whether the ground raised by the judge is appropriate or not."
"In the case of High Court judges, if he [chief justice] doesn't consider it appropriate, he can send it back to the same judges saying, 'no, you dispose of it," Kamal said.
If the same thing happens in the Appellate Division, then certainly this can be noted and the government in that case can appoint judges on ad hoc basis in consultation with the chief justice.