Upon the retirement of the Chief Justice M.M. Ruhul Amin, Justice M. Tazzaful Islam was elevated to teh seat of Chief Justice on December 22nd. Though he will serve his term for only a few months, he nevertheless intends to be an activist justice on the bench of the Bangladesh Supreme Court.
However, his remarks sound more than a bit befuddled. As the Daily Star reports, Chief Justice Islam intends to ensure justice for all but wants to attend, especially, to the needs of the poor. Claiming that the poor had been made to wait as other interests superseded their claims Justice Islam said,
“Our goal is to make the poor happy by ensuring justice. Establishment of justice and the rule of law is necessary to uphold democracy in the country.”
It is hard to imagine how the poor can be made to be happy by ensuring justice. Since it is primarily the poor who commit crimes that involve the courts, there seems to be little that can be immediately read off that comment. Nevertheless, there are at least two ways of interpreting this remark. One is to suppose that the Justice intends the law to take into greater consideration the back ground social framework within which the poor live. For example, the courts might now be more lenient on certain crimes, though statute might dictate otherwise. Another is to suppose that the courts have not served justice for the poor, until now. In this sense, the claim might be tantamount to accusing the previous holder of the post who had been elevated to the Supreme Court by the military governed Care Taker Government, to be insensitive to the demands of procedural justice. The first approach can be squared with legal pragmatism of the sort propounded by Judge Richard Posner. The other approach stings of political gamesmanship.
Justice Tafazzul Islam will be the first Chief Justice appointed by the Awami League government, in hte person of the President, Zillur Rahman. He intends to retire after only 47 days thus leaving the high court bench vacant. This afford the Awami League the opportunity to appoint another capable individual e to the highest post in the court. Justice Tafazzul Islam’s elevation could be a political reward since he headed the Appellate Division of the Supreme Court that rendered the verdict on the recent Sheikh Mujibur Rahman assassination appeal.
The New Nation (Ittefaq) had some interesting reportage on the possibility of overt judicial control to re-set the relationship between parliament and the bench:
“While giving his instant reaction over the appointment of the new CJ, noted jurist Barrister Rafique-ul Huq, the counsel for both Prime Minister Sheikh Hasina and BNP chairperson Khaledea Zia, told journalists that he would expect a better atmosphere between the bench and the bar during his short tenure.”
“He (CJ Islam) will try his best to establish the rule of law and human rights,” Barrister Huq said.”
When pressed upon the fact that the senior-most Justice in the court had been passed over twice,
“Barrister Huq, also ex-Attorney General, said he was on principle always against it. But, in the instant case, it was to some extent different as Justice Islam had been called to the bar in England three years before Justice M Fazlul Karim.”
There’s nothing obviously wrong with the elevation of Justice Islam. The President of Bangladesh, Zillur Rahman was himself named President by the triumphant Awami League in January 2009–though he was only so named after Sheikh Hasina reversed her position on naming H. M. Ershad, leader of one faction of the Jatiya Party–himself a former president–to the post. The issue that seems likely to hang in some future forecast is that the current government might reverse itself on a whole gaggle of rules and laws established by the BNP–currently in opposition– when it was in power. The ultimate problem with such reversals is that at least some of those moves are bound to be welfare reducing.
There’s no way the Awami League can prevent itself from overshooting its bounds and, failing to set its own limits is sure to shoot itself in the foot.
