Fact File
An eyewitness account of what happened in Court No.12 on 30 November 2006
Moin Ghani
The following is a brief summary of the hearing that took place in Court No.12 on 30 November 2006 on the writ petitions challenging the assumption of the office of the Chief Adviser by the President:
In the morning the Attorney General (AG) of Bangladesh appeared before the Court with an application for the formation of a larger bench for hearing of the case. He argued that under the High Court Rules there was no bar to filing any application at any stage of a case. Since the hearing on the writ petitions challenging the assumption of the office of the Chief Adviser by the President was of utmost public importance a larger bench of the High Court Division should hear the matter.
The Court was of the opinion that the hearing had already taken place and the Court was going to pass an order on that day (30 November 2006). At the end of the previous day's hearing the court had expressed this view.
The AG argued that the petitions should have been rejected summarily without any hearing. This was an unprecedented case and the outcome of the case would have grave consequences for the nation. The petitioners had come to court to further their political purposes. They were agitating in the streets and were believed to cause another obstacle to the forthcoming elections which have to be held in 90 days. Therefore, the petitioners had come to court to win political points. This case has serious political consequences and the court cannot be oblivious of that.
At this point the court commented that the Court does not look at the political colour of any case. It only looks at the constitutional issues.
Dr. Kamal Hossain, appearing for the petitioners, submitted that the Court had already allowed extraordinary indulgence to the AG. A Rule is generally issued in a motion, often on an ex parte basis. The opportunity for a full hearing comes only after the issuance of a Rule. Therefore the application of the AG for a larger bench was premature. He agreed that the issues were of great public importance and for that very reason a Rule should be issued. The issues raised merited a full hearing. A larger bench may be constituted for the actual hearing of the case after the issuance of the rule. He also argued that the AG was making contradictory statements: On the one hand he was saying that the writ petitions should be summarily rejected but on the other he was saying that a larger bench should be constituted. There is no objection to a larger bench but that can only be constituted at the time of hearing, and after the issuance of Rule. He further contended that the application for the constitution of a larger bench at this stage of the proceedings was being made with an ill motive. If such an application was allowed then the very foundations of this institution would be undermined. The Supreme Court has had over 150 years of practice and there was no precedence for such an application at this initial stage, prior to the issuance of a Rule. He argued that the submissions made by the AG were extraordinary. He also pointed out that a court should not be conducted in the manner in which it was being conducted. He blamed the lawyer audience on both the sides for screaming “yes” and “no” to the court. He stated that this kind of shouting match must stop otherwise the entire institution would be undermined.
Dr. Hossain stated that it was obvious that the petition merited the determination of certain constitutional issues. He posed the question how the AG could make such a submission that a Rule should not be issued. If there are issues of interpretation then a Rule has to be issued. He also stated that a more pertinent question was why the AG was continuing to hold his office after the BNP government had left office? He served the previous BNP government as an AG and should have resigned with the Caretaker Government taking office. This was done by all previous AGs when a Caretaker Government took office.
At this point the AG stood up and informed the court that he had offered his resignation to the President. The President refused to accept his resignation and requested him to continue.
Dr. Hossain reminded the AG was supposed to be working for the Caretaker Government and not for the President. Any executive authority was meant to be exercised on the collective advice of the Advisers and not on the unilateral decision of the President. This issue was also at the crux of one of the writ petitions being heard. The AG owed a duty to the court and not to any political party.
The Court enquired whether the AG could apply for a larger bench at this late stage of the initial hearings. Only preliminary issues were being raised here and if the court decided on the issuance of a Rule, then an application could be made for the hearing to be conducted before a larger bench. The Court also pointed out that there were instances in other jurisdictions like India where the assumption of office of the Chief Justice was challenged. The Supreme Court of India even passed a judgment that the assumption of office of the Chief Justice was illegal and the Chief Justice had to leave. However, the work that was done during the period of the illegal holding of office was upheld. Similar rulings had also been made against military rules. Martial Law Proclamations had been declared illegal by courts but their acts had not been declared to be void. Similarly, in this case even if the assumption of office of the Chief Adviser by the President was declared to be illegal, it would not necessarily mean that all the acts of the Caretaker Government would become null and void. A Rule could be issued to show cause and determine whether the constitutional steps were followed by the President during his assumption of office of the Chief Adviser. The actions taken by the Caretaker Government during its tenure under the President would not be illegal.
The AG argued that his application for a larger bench had to be disposed of before proceeding further. He stated that there were other instances where the Appellate Division accepted that a larger bench may be formed. He said that in the past he was the conducting lawyer in such a case and Barrister Rokon Uddin Mahmud was on the other side. He asked Mr. Mahmud whether he had now forgotten the case.
Rokon Uddin Mahmud eventually managed to remember the case being referred to and affirmed that the precedent mentioned actually made the petitioners' position stronger. In that case, a larger bench was constituted only after the issuance of the Rule, and not before.
The AG argued that it was the principle of the case which was important, not the facts. He claimed that the precedence mentioned was very relevant to this case and undertook to produce it to the court at 2:00 p.m after the lunch recess on that day.
The Court expressed the view that it was minded to pass an order at 2:00 p.m as had been declared the previous day.
The AG stated that the court could not pass the order on that day as he had a lot more to say. He had not finished his submissions. In any case, the AG argued that the court had to dispose of the government's application for a larger bench before the court could proceed further. He stressed that he wanted the application disposed of either way and could reject it if the court so desired. The AG wanted his application for a larger bench disposed of first.
Dr. Kamal Hossain argued that the application of the AG was premature and contradictory. He was saying that no rule was warranted and at the same time he was making an application for the matter to be sent to a larger bench. The matter could be sent to a larger bench if this court determined that there were constitutional issues that had to be determined. But for that to happed a Rule had to be issued first. The AG's argument that the petition should be summarily rejected as the President's actions cannot be challenged in a court was also not maintainable. Dr. Hossain reminded the court that he had exhibited precedence [caselaw] that the President's actions were subject to judicial review by the superior courts. A President was not beyond judicial review.
Dr. Hossain argued that the AG's application for a larger bench would only be maintainable after the issuance of a Rule. He requested the Court to look at the issue from the petitioner's side as well. He posed the question if the petitioners felt that they were not going to get a Rule from this court, could they, at this stage, ask for the matter to be sent to a larger bench? The court would certainly not have allowed the petitioners that kind of indulgence.
The AG submitted that a larger bench should determine this matter. The AG requested the court to, at the very least, dispose of the application for a larger bench. The court could reject the application if it so pleased. He also pointed out that the court had already formed an opinion on the issuance of a Rule.
Dr. Hossain interrupted that the issuance of a Rule could not be obstructed by an application for a larger bench. There was no precedence for such an application.
The AG interjected that this case was unprecedented and it called for unprecedented steps to be taken. He left the court in the middle of the hearing while Dr. Hossain was submitting on behalf of the petitioners.
The court then fixed the time for orders at 2:00 p.m.
Mr. Rokon Uddin Mahmud just before the court rose pointed out that the AG had mysteriously left the court and the petitioners were suspicious that he had some ill motive to undermine the court. He said the AG was contriving to tie your hands. He urged the court to issue the rule before rising for lunch.
The court maintained that the AG had said he would come back at 2:00 p.m. with a precedent which was relevant for the court. Therefore the court would wait for the AG and pass the order at 2:00 p.m.
The rest, as they say, is history…
DISCLAIMER: I am an associate of Dr. Kamal Hossain and this summary has been written from the personal notes taken by me in court -- Moin Ghani.
