IT IS not Justice SK Sinha, or the judiciary but the formal governance system that has been put under a question mark because of the recent events. What began as a conflict with the judiciary as represented by the Supreme Court with Sinha as the chief justice has descended into a general mayhem and confusion that is startling and shocking. The pillars of the state — the executive, the legislative and the judiciary — are looking vulnerable and one cannot say for certain how long the system will take to heal.
Several questions have emerged on the issues that need answer. They have arisen because of confusion and opaque nature of the circumstances surrounding the Sinha ‘exit’. They are:
— Did the government which is now bringing allegations against Justice Sinha appoint him without proper vetting and background check? What is the appointing process?
— What is the guarantee that current justices of the Supreme Court are above such similar claims and which later may cause another Sinha like crisis?
— What we have now are allegations against Sinha and not proof. Is it common to take cognisance by other judges of the Supreme Court who refused to sit with Sinha on the bench before an investigation is carried out of allegations?
— Does the role of the president include handing over alleged evidence of corruption to the Supreme Court judges on Sinha without letting him know? If this was done as per the ‘inherent powers’ of the president (the law minister mentioned this aspect), what is the scope of such powers?
Much of the issues sounds legal in nature but are rooted in the perplexity of ordinary people trying to understand what is going on. There is anxiety not about Justice Sinha but about the health of a system which allows the kind of drama to unfold seen in the past few months. The feeling certainly is that the crisis should end and normal life resume ensuring such situations not arise in future.
Was it the 16th amendment verdict that was the proverbial straw?
Many, particularly from the opposition Bangladesh Nationalist Party, are saying that the government must have been aware of the allegations against Sinha from before but did not act as Sinha is an Awami League nominee. Whether a fact or not, certain doubts are inevitable. Justice Sinha had in court disclosed the matter of him being a member of a shanti committee in 1971 on his own. Obviously, he would not have done so if he was a war criminal but it is also true that this has been discussed openly since long by people, including critics from within the ruling party, which happened after the conflict had escalated.
Now, it is a matter of concern because Sinha was presiding over many sensitive cases, including those relating to war criminals. How was the government confident that he would give an unbiased verdict on such cases if he was a collaborator as his critics are pointing out? Did the authorities have the right to take such a risk? Were they caught in an uneasy situation where after having appointed him the chief justice, they had no option but to go along?
Forget everything else and look upon the 16th amendment case. This was a landmark case that has affected the conceptual nature of the state management. Some call this restoration of the inherent independence to the judiciary while others call it a denial of the rights of the parliament to impeach judges. No matter what, it has profound implications.
Given that and given the allegations that are now surfacing, how did the government allow such a sensitive case to be handled by a person as the chief justice whom the government has now decided to investigate and prosecute, including on corruption charges? More seriously, he is being accused of acting in collusion with the BNP. So if the chief justice was in league with the BNP, on whose shoulders does the responsibility fall of giving him full power to decide on the 16th amendment review petition?
It is the timing that is disturbing because if the authorities claim that he is a corrupt and conspiratorial person, they must prove all this evidence that came to them after the verdict of the 16th amendment or answer why they were sitting on it for long.
They must also explain why such matters were unknown to them and if so, it means the competence of the government is limited as far as vetting goes.
Such a man of power may be easily influenced by many quarters on various issues; so clearly the SC judges must be kept under constant surveillance. Was this done?
The NOW is the post-16th amendment scenario which saw high political mobilisation and hostility towards Justice Sinha, in particular, and, generally, against the Appellate Division of the Supreme Court. Since the present Supreme Court, led by Justice Abdul Wahab Bhuiyan and the co-judges, were all signatories to the verdict, are they not a party to allegations, raised by the government, centred around the verdict including minimising the role of Sheikh Mujib? Is it the political or the legal aspect of the 16th amendment that is now paramount?
It may, therefore, be a good idea to investigate the present members of the bench and give a clean chit before the review petition on the 16th amendment is heard. This will ensure confidence that the review process of the court is beyond any kind of doubt.
The politics of Judges in conflict
THE way the entire episode was handled seemed very haphazard and odd. Justice Sinha was on leave when a report surfaced that a writ was about to be signed to challenge the validity of the parliament. Sinha has been accused of complicity with the BNP and AL leaders are not holding back on this. The prime minister has said that many chief justices have been part of conspiracies before, too, and that means the matter is not judicial or of due process but politics.
It is at this juncture that the crisis leaves the premises of the judiciary and enters a completely different one, where issues are not decided on legal arguments and reasoning. That this should happen 45 years after 1971 is what should make everyone ponder because they mean that the formal governance system remains weak and vulnerable and unfortunately has become linked to political issues. The Supreme Court must remain above all controversy but where is it now?
Afsan Chowdhury is a journalist and researcher.
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