Supreme Court may have undermined itself
New Age Editorial:
On Wednesday, April 23, the Appellate Division curtailed the authority of the High Court Division to hear bail petitions in cases under the Emergency Powers Rules, in a judgement that has sparked furore among legal experts and practitioners, and been dubbed as the last nail in the human rights coffin・ a tsunami on the rule of law and the judiciary・ a black chapter in the judicial history of Bangladesh・ etc. The chorus of concern and criticism by legal experts and practitioners is quite understandable. The Emergency Powers Rules, as amended on March 21, 2007, bars the accused from seeking bail in any court or tribunal during inquiry, investigation or trial. The rules are essentially in contravention of the spirit of the constitution and the laws of the land that uphold the right of the accused in all bailable cases to seek bail. The judgement of the Appellate Division seemingly snatches away that fundamental right. Crucially still, the judgement could be construed to have undermined the Supreme Court itself since, as a senior lawyer has pointed out, it seemingly relegates the apex court to the status of any subordinate court or tribunal.
These kinds of judgements have in the past played into the hands of those who have sought, and subsequently exercised, extra-constitutional powers, and in the current situation might, as a prominent human rights lawyer has observed, result in the abuse of power・ Moreover, such rulings put a big question mark over the very credibility of the country’s justice delivery system besides raising suspicion in the public mind as to whether the judiciary can work independently at all. Already, certain rulings of the Appellate Division that overturned the orders of the High Court Division granting bails to corruption suspects and a recent decision of the chief justice to change the jurisdiction of a High Court bench, which had been in the news for several landmark rulings and observations, have induced misgivings in the public mind that the military-controlled interim government may be exercising considerable influence on the higher judiciary.
It is not unusual for the executive, especially of military denominations, to try to weigh down the judiciary. One does not have to go far beyond Bangladesh’s borders to look for precedents. In Pakistan, different military regimes at different times have tried to force the judiciary to toe their lines and write and rewrite the law to suit the purpose of the rulers. As recently as last year, the regime of General Pervez Musharraf tried the sadly familiar tact but failed in the face of organised and determined resistance from justices and lawyers alike.
The highest judiciary in Bangladesh remains the last bastion of hope for the people aspiring for the rule of law, and is expected to uphold the constitutional rights of the people at any cost. On August 11, 2007, the chief justice said, at a seminar on judicial reform and independence of judiciary, The Supreme Court played a role in the past at the crucial juncture of the nation. It is doing so at present and will do so in future to pull the nation out of mire.・However, after the April 23 judgement, one may feel that the apex court has failed to live up to the popular expectations that the chief justice’s words may have generated.