For once, this is an issue in which the ruling party Awami League (AL) is not locked in battle with its diehard opponent, the Bangladesh Nationalist Party (BNP). This time around, the AL is tussling with Dhaka’s senior judiciary over the issue of the latter’s independence and accountability. The matter has come to a head with the delay in the review of the death sentence awarded to a number of people for the 1975 killing of Sheikh Mujibur Rahman, Bangladesh’s first president, leader of the nationalist struggle and father of Prime Minister Sheikh Hasina Wajed. In the process, the traditionally sacrosanct position of the judiciary in the Bangladeshi polity has been challenged like never before.
The League has let loose its shoguns against the judiciary, most prominently Home Minister Mohammed Nasim who does most of the thunder bolting on behalf of his party. He has spoken loudly that the judiciary should be answerable to the people and the legislature. He did so in the Sangsad, which has given him immunity from the ire of the justices. Sk. Hasina herself has had to meet President Shahabuddin Ahmed, himself a much-respected former chief justice, to explain a remark she made on the judiciary.
The bench, particularly at the apex, constituting the Supreme Court (High Court Division and Appellate Division), have always been considered to be beyond the purview of criticism. Its members, especially the previous chief justice, a renowned jurist and Islamic scholar, have been stout defenders of the Supreme Court´s independence and self-accountability. The position they hold is that the judiciary should be accountable first to its conscience and then to the Constitution, and beyond that, to nothing and no one else.
Critics have an obvious problem with this reasoning, since it seems to place the judiciary above the law, a position not seen to be in line with an egalitarian state. More specifically, the AL government has taken offence at what it thinks has been the judiciary´s lenient attitude towards accused criminals or under-trial prisoners, which it says has taken the punch out of its own anti-crime drives. Human rights groups support the rights of the arrested including political prisoners, while the AL leaders scoff at the practice of too-easy granting of bails.
And so we come to the “August 15 killers” as Sk. Mujib´s murderers are known. Their fortunes have swung with whoever is in power, the AL or the BNP. In the 1980s, the BNP-dominated Sangsad gave them immunity after a special amendment was passed to that effect. When the AL took over in June 1996, it successfully challenged the amendment in court, and tried to haul in all those involved. The majority are now serving the death sentence, while the government continues to seek the extradition of a few who have moved to the United States and Canada.
The relationship between the courts and the ruling party soured considerably when the mandatory review of the death sentences on Sk. Mujib´s killers reached the Supreme Court in November 1998. It evolved into a crisis when it appeared that given the backlog of cases, the review would take almost two years just to be heard. Rallies and processions followed, where the AL leaders aimed strong words and veiled threats. The unnerved justices went on to meet the president. Meanwhile, to add another twist, Mohammed Nasim, the son of Mansur Ali, the home minister in Sk. Mujib´s cabinet who was killed inside the Dhaka Central Jail in 1975, took it upon himself to promise security to the judges and their families.
In all this, the stance of President Shahabuddin Ahmed has been positive as expected. The former chief justice headed a neutral caretaker government in December 1990, a role that helped defuse a constitutional crisis. The manner in which he conducted himself then earned Ahmed immense respect and credibility. He was later elected president by the Sangsad as the AL candidate. Ahmed has stood his own ground as president, not shirking to criticise inter-party conflicts. In the present context, he has steadfastly demanded that the Bangladesh judiciary be allowed to remain unfettered.
It is not that the judiciary has been squeaky clean. Indeed, corruption and influence-peddling are not absent among the justices, and more so in the lower rungs. So much so that the chief justice has made a public statement that all corrupt and incompetent judges from all levels would be weeded out of the system. However, the present charge against the courts does seem to be motivated by a partisan agenda, even though the origins of this agenda —the bringing to book of the killers of Sk. Mujib may have positive elements.
Meanwhile, the present controversy has been rendered even more knotty with the involvement—and how could it stay away? of the opposition BNP. Its leader, Begum Khaleda Zia has said that before any other trial is conducted, there has to be proceedings against all those involved in the killing of some 300 of her party activists over the years. On the other hand, there are those who want re-trials of some cases decided by allegedly pliant judges during the Begum´s husband Gen. Ziaur Rahman´s rule; some even accuse the late general of involvement in the assassination of Sk. Mujib.
The history of Bangladesh is replete with killings — constitutional, extra-constitutional, or of the plain street variety —of political leaders. This trial will add another chapter to that long hunt for a proper process by which those culpable, belonging to whichever party, are kept within the reach of the law. For that, the judiciary will have to enjoy a free run, without interference from any quarter. It must be left to search its own soul and set its own accounta-bility standards.