Law Alter Views
Appellate division recalls its order
Barrister Moin Ghani
On 20 February 2007 the Appellate Division of the Supreme Court of Bangladesh, in an unprecedented move, recalled an order within about a couple of hours of passing it. The day also witnessed some unprecedented interactions between the members of the Bar and the Bench.
The Appellate Division of the Supreme Court is the apex court of the country and is presided over by the Hon'ble Chief Justice of Bangladesh accompanied by six other senior most Judges of the Supreme Court of Bangladesh. A lawyer from the Bar can only appear before such a court after at least five years of practice in the High Court Division (HCD) and only after a vetting procedure which requires all the Judges of the HCD to concur that the lawyer is competent to appear and plead before the Appellate Division. Since the Appellate Division is the apex court of the land it is the final and ultimate arbiter of any legal issue. A decision of the Appellate Division is definitive as there is no option of challenging such a decision. It is in this context that the gravity and magnitude of the unprecedented incident of the recall of an order by Appellate Division has to be understood.
In order to understand the recall order one would need a brief background history of the case that was being heard before the Appellate Division on that day. In May 2005 the HCD had passed a judgment requiring the Election Commission to obtain certain personal information, on a sworn affidavit, from all candidates running for parliamentary elections. The candidates were required to provide information on their sources of income, their criminal records (if any), and their educational qualifications (also if they had any). It is important to note that the lack of formal educational qualifications would not have barred a candidate from running for a parliamentary seat. The information was to be provided solely to enable the voters to make an informed choice. Based on this judgment, the Election Commission had sought and obtained such information in a number of bye-elections that had been conducted since May 2005. By December 2007 the Election Commission was also prepared to seek these information from candidates for the parliamentary elections scheduled for 22 January 2007.
However, on 19 December 2006, just two days before the last date for the submission of the nomination papers and while the Supreme Court was on its winter vacation one Mr. Safa filed an application for the stay of the HCD judgment of May 2005. Mr. Safa's lawyers had argued before the Vacation Chamber Judge of the Appellate Division that he intended to run for office from Sandwip constituency and that the disclosure of his educational background would be discriminatory since he had formal education only up to Class Eight. On this application, in an incredible move, the Vacation Chamber Judge stayed the entire HCD judgment. No notice of the application being moved was given to any of those who had been parties to the matter before the HCD, including the Election Commission. Although stay applications had been filed earlier before the Appellate Division no stay had been granted previously.
The parliamentary election candidates who were about to submit their personal details to the Election Commission no longer were required to submit these details. There are reports that the Election Commission had already handed out forms to be filled in by the candidates disclosing these information. However, after the stay order the Election Commission was actually requesting candidates who had already submitted the forms to take them back. This was a great blow to the rights of voters to know about the candidates they were going to vote for. The civil society, which had been campaigning for honest, clean and competent candidates, strongly criticised the stay order.
When the Court reopened the senior lawyer conducting the case on behalf of Mr. Safa informed the Appellate Division that he would no longer appear in the matter, as he had been misled regarding the facts of the case.
Subsequently it transpired that the leave was obtained by Mr. Safa by the use of palpably false statements made in his leave petition. Investigations revealed that Mr. Safa had left Sandwip some years ago and had no local standing or reputation as claimed and that his name did not even appear on the list of persons who had filed nominations for the parliamentary elections scheduled to be held on 22 January 2007.
On the first day of the actual hearings before the Appellate Division Mr. Omar Sadat, Advocate, who is still not entitled to appear before the Appellate Division was granted special permission by the Appellate Division to appear on behalf of Mr. Safa. The lawyer on the other side, Dr. Kamal Hossain, had noted in court that this was a great indulgence being given to Mr. Sadat since he had not even appeared in the proceedings before the HCD.
During the hearings Dr. Kamal Hossain made submissions focusing on the maintainability of the Appeal. He pointed out that Mr. Safa had made false statements on affidavit and based on those false statements leave was granted for the appeal i.e. permission was given to Mr. Safa to appeal against the judgment. One can only appeal against an HCD judgment or order if the Appellate Division grants leave (i.e. permission to appeal) after being convinced that there are grounds on which an appeal can be made against an order of the HCD. The fact that Mr. Safa was granted leave when he was not even a party to the HCD proceedings itself is unprecedented. In the normal course, the Appellate Division only hears appeal from judgments of the HCD upon an application from a party to the proceedings. Dr. Hossain had argued that the Appellate Division would be acting in an unprecedented manner and expanding the jurisdiction of the apex court by permitting an aggrieved third party to file an appeal against an HCD judgment. Furthermore, this was being sought in a case where the third party had in fact defrauded the highest court of the land.
Dr. Hossain also argued that there was the question of whether the Court could at all hear the matter given the questions raised regarding fraudulent statements made on behalf of Mr. Safa, and the manner in which the stay application had been moved and filed without notice to any of the parties, including the Election Commission. On 19 February 2007 during the hearings the Court had stated that it would pass orders on the next day. Dr. Hossain pointed out that he had not made any submissions on merits and therefore there could only be an order on the maintainability issue. He also submitted that the matter was an issue of the highest public importance that the Appellate Division could not allow itself and its process to be grossly abused by a person making fraudulent misstatements in a petition seeking leave to appeal and more so, where the appellant had not been a party in the HCD, and to submit that the appropriate order in such a case was for leave to be revoked. To top everything else the current whereabouts of Mr. Safa could not be ascertained.
In an extraordinary development, early in the day on 20 February 2007, the Appellate Division pronounced its order allowing the appeal. At this point Dr. Hossain refused to leave the court saying that the appeal could not be granted since he had not made any submissions on the merits of the case. At this point the Judges rose and left the court amidst the ensuing shock and pandemonium.
In the middle of this deadlock between the Bench and the Bar, the Attorney General of Bangladesh, who is also the highest law officer of the country, played a commendable mediatory role. Eventually an application was filed for the recall of the order. One of the grounds for the recall application was that the appeal could not be heard because of the suspension of fundamental rights by the Emergency Rules 2007. Since the main ground of appeal on which leave was granted concerned the issue of discrimination the Court could not pronounce the order. Dr. Hossain refused to leave the courtroom till the Judges returned and gave him a hearing.
After almost about two hours of this deadlock, when the Judges returned, Dr. Kamal Hossain made some moving and emotionally charged submissions. He stated that he had only appeared in this case guided by the consideration of upholding the dignity of the court. He could not stand by and see the Constitution and the apex court being defrauded. He reiterated that this was a life or death matter as the court was the last place of refuge for the poor deprived people of Bangladesh. He was willing to give up his life in defence of the court's dignity, integrity and independence. At that point the Chief Justice of Bangladesh stated that in view of the application the unsigned order passed earlier in the day may be recalled.
The writer is an Advocate of the Supreme Court of Bangladesh.
