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Having provided justice for 15 years Justice Abu Nayeem became himself a victim of injustice
Barrister Nazir Ahmed |
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If everything could take a natural course, Justice Shah Abu Nayeem Mominur Rahman (hereinafter Justice Abu Nayeem) instead of Justice Md Muzammel Hossain would have been the Chief Justice of Bangladesh now. Not only this, he would have been the Chief Justice before Justice ABM Khairul Haque. In spite of having relevant skills, expertise, experience and seniority, the government, more specifically the President, deprived Justice Abu Nayeem from reaching at the top ladder of the judiciary. Justice Abu Nayeem was superseded twice. He along with Justice Abdul Motin was first superseded on September 2010 when Justice ABM Khairul Haque was made the 19th Chief Justice of Bangladesh. They had abstained (by taking leave) from judicial work in protest against such blatant supersession. While on leave Justice Motin retired from the judiciary with agony and frustration. Justice Abu Nayeem was superseded second time on 11 May 2011 when Justice Md Muzammel Hossain was appointed as the 20th Chief Justice of Bangladesh. The next day on 12 May 2011 Justice Abu Nayeem resigned apparently in protest against the appointment of the new Chief Justice superseding him.
Justice Abu Nayeem’s resignation was unprecedented in the history of the Supreme Court of Bangladesh. Although there has been instance in the High Court of resignation in protest (for example, a High Court Judge Justice Kazi Shafiuddin resigned in protest for being superseded), there has been no such instance in the Appellate Division of the Supreme Court of Bangladesh. What else could Justice Abu Nayeem have done? He did what a respected man with personality would have done. According to Barrister Rafique-Ul Huq, an eminent jurist and former Attorney General of Bangladesh, “No person with self-esteem would want to continue in such circumstances.” He further added “we expected that according to seniority this time Justice Abu Nayeem would be named for the office of Chief Justice.” Meanwhile, Bangladesh Supreme Court Bar Association, the representative body of the Supreme Court lawyers of Bangladesh, decided not to facilitate the newly appointed Chief Justice as he had been appointed superseding the senior most judge.
Justice Abu Nayeem was born on 15 November 1944 in a respectful Muslim family. His father’s name is Late Alhaj Fakir Abdul Mannan and his mother’s name is Late Alhaj Wazeda Akhtar Khatoon. Justice Abu Nayeem obtained BSc (Hons) in 1965 and MSc in Physics in 1966 from the University of Dhaka. Later he obtained LLB degree in 1970 from the same University. Justice Abu Nayeem visited many countries of the world including India, Nepal, Singapore, Hong Kong, Malaysia, China, Saudi Arabia, USA and Canada. He participated various seminars and symposiums, both at home and abroad. He participated in the First South Asian Regional Judicial Colloquium on ‘Access to Justice’ held in New Delhi, India, in 2002.
Let us compare and contrast the experience and seniority of Justice Abu Nayeem with Justice ABM Khairul Haque and Justice Md Muzammel Hossain, both as an Advocate and as a Judge. Justice Abu Nayeem was enrolled as an Advocate in the High Court Divison in 1974. By contrast, Justice ABM Khairul Haque and Justice Md Muzammel Hossain were enrolled as an Advocate in the High Court Division on 1976 and 1978 respectively. Furthermore, Justice Abu Nayeem was enrolled as an Advocate in the Appellate Division of Bangladesh Supreme Court in 1980, whereas Justice Khairul Haque was enrolled as an Advocate in the Appellate Division on 1982. Justice Md Muzammel Hossain was not known to have been enrolled in the Appellate Division. So, in terms of the enrolment to the High Court Division, Justice Abu Nayeem was senior to Justice ABM Khairul Haque and Justice Md Muzammel Haque by 2 years and 4 years respectively. Furthermore, in terms of the enrolment to the Appellate Division of the Supreme Court, Justice Abu Nayeem was senior to Justice ABM Khairul Haque by 2 years.
As a Judge of the High Court, Justice Abu Nayeem was also senior to Justice ABM Khairul Haque and Justice Md Muzammel Hossain by 2 years. Justice Abu Nayeem was elevated to the High Court Division on June 1996, whereas both Justice ABM Khairul Haque and Justice Md Mozammel Hossain were elevated to the High Court Division on April 1998. It should be noted that Justice Abu Nayeem was elevated to the High Court Division as an Additional Judge by the non-party caretaker government headed by Justice Muhammad Habibur Rahman. Having seen his performance, wisdom and skills he was confirmed as Justice of the High Court Division by the Awwami League government. By comparison, Justice ABM Khairul Haque and Justice Md Muzammel Hossain were elevated to the High Court Division as Additional Judges and then confirmed as Justices of the same Division by the Awwami League government. Even in terms of the elevation to the Appellate Division of the Supreme Court, Justice Abu Nayeem was senior to both Justice ABM Khairul Haque and Justice Md Muzammel Hossain by more than four months. Justice Abu Nayeem was elevated to the Appellate Division on 8 March 2009, whereas Justice ABM Khairul Haque and Justice Md Mozammel Hossain were elevated to the Appellate Division of the Supreme Court on 16 July 2009.
Justice Abu Nayeem was one of the talented Judges in the Supreme Court of Bangladesh. He showed his boldness, wisdom, firmness and bravery when he was a Judge in the High Court Division. He issued important rulings and landmark judgments in the High Court Division. He declared various decisions of different governments (both Awwami League-BNP and Military backed caretaker government) as illegal and ultra virus the Constitution. At times when his rulings and judgements went against the government, writ jurisdiction of his Bench was curtailed or dismantled by the respective governments through the Chief Justice. When military backed government was in power following the infamous 1/11, we saw the awkward behaviours and poor performance of the higher judiciary. At that time eminent jurist Barrister Rafique-Ul Huq said with regret and frustration “The highest judiciary tends to give judgement by seeing the winds of the time.” During that scary period when two leaders of the two major parties (who were former Prime Ministers as well) were in jail and the highest judiciary could not show their backbone, Justice Abu Nayeem showed his bravery and boldness in granting them first bail. Barrister Rafique-Ul Huq, who was himself the leading Counsel for both Sheikh Hasina and Begum Khaleda Zia at that time, praised Justice Abu Nayeem in the media after pronouncement of his landmark judgement by saying “we’ve got another Justice Murshed in our higher judiciary.”
I have personally seen Justice Abu Nayeem on two occasions in the High Court Division in conducting hearings during the era of military backed caretaker government. I have seen calmness, firmness, wisdom and boldness in his personality. In one occasion he let the then Attorney General read the relevant emergency rules and regulations in open court and while the Attorney General was reading relevant passages Justice Abu Nayeem was calmly but boldly pointing and showing in open court (when scary and hostile environment was prevailed in the whole country) the inconsistencies of the emergency provisions with the existing laws and norms. Even the strong government supporting lawyers would not deny Justice Abu Nayeem’s wisdom, skills and ability. During the last 15 years of his judicial career, neither anyone accused him of any partiality, biasness or incompetency nor did we hear any such accusation. Does such a brave and bold Judge deserve supersession, not at once but twice?
The Chief Justice is appointed by the President of the Republic [Article 95(1) of the Constitution]. Although there is no clear provision in our Constitution as to how the Chief Justice will be appointed, one thing is clear that the President is not required at all to consult the Prime Minister or any other person or body in appointing the Chief Justice [Article 48 (3) of the Constitution]. When the Constitution has given such a unique power and prerogative to the President, we expect that the President would use his wisdom and be fair and impartial in appointing the Chief Justice. What sort of wisdom has the President employed in appointing the two Chief Justices (the current Chief Justice and the immediate past Chief Justice) superseding a brave and bold Justice? Whatever written in the Constitution, the President could not go above his party affiliation and critics are not unreasonable in saying that President’s appointment of the Chief Justices reflected what the government was thinking and saying.
There are some partisan lawyers who try to argue that the appointment of the Chief Justice is not a promotion and therefore supersession, to them, is quite right. These arguments do not have any merit. Junior Judge would become the Chief Justice and senior Judges would work under him – does logic and common sense suggest this arrangement? Can a self esteem Judge with back bone tolerate this? Although there is no clear provision in our Constitution as to how the Chief Justice will be appointed, we can still get some implied guidance from the very Constitution. In relation to the temporary appointment of the Chief Justice, Article 97 of the Constitution says “If the office of the Chief Justice becomes vacant, or if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office, those functions shall, until some other person has entered upon that office, or until the Chief Justice has resumed his duties, as the case may be, be performed by the next most senior Judge of the Appellate Division.” This provision clearly says that the most senior Judge of the Appellate Division would act as an acting or temporary Chief Justice. It naturally follows from this that when the Chief Justice is to be appointed, it is the senior most Judge of the Appellate Division who deserves to be there.
Supersession of the Judges can be found, in a limited extent, more or less in all tenures of our democratic governments. However, supersession under the present government based on political consideration has reached to the unprecedented level. The government has recently elevated two Judges (Justice Momtaj Uddin Ahmed and Justice Samsul Huda) of the High Court Division to the Appellate Division superseding nearly 50 Judges. Since the government came into power two and half years ago, four Chief Justices were appointed. Among them three Chief Justices were appointed superseding other senior Judges. In this connection, it can be argued that the martial law government was even better than our democratic governments. During the 9 years of autocratic regime of Ershad, three Chief Justices (Justice F.K.M. Munim, Justice Badrul Haidar Chowdhury and Justice Shahabuddin Ahmed) were appointed without any supersession. As per seniority, Justice Badrul Haidar Chowdhury was even appointed as the Chief Justice for only one month, from 01/12/1989 to 01/01/190. The Eighth Amendment case was a direct blow to the Autocratic Ershad regime, for the Apex Court had stricken out the Eighth Amendment passed by the then Parliament . In spite of this, Ershad neither superseded Justice Badrul Haidar Chowdhury nor Justice Shahabuddin Ahmed in appointing them as the Chief Justice.
Supersession should be condemned for three fundamental reasons. Firstly: it violates one of the principles of natural justice (legitimate expectation) of the Judges. Secondly: the Supreme Court Judges shall be independent in the exercise of their judicial functions, Article 94 (4) of the Constitution. Routine supersession put a strong barrier in the way of the Judges’ independence, for the Judges would think that if their bold decisions upset the government, they would in due course be superseded. Thirdly: supersession causes them humiliated to the colleagues, family members and to the wider society. The Judges who are superseded would probably have to spend rest of their life with agony, frustration and deprivation. Having provided justices for years, often more than a decade, in the apex court, do the Judges deserve to be victims of worst injustice?
Finally, the government, by supersession, tends to control the higher judiciary. Government supporter or sympathiser Judge or Judge with propensity to non challenging the government will be elevated to the Appellate Division or even made the Chief Justice. If that continues to happen, the skilled and able Judges will be demoralised and consequently they will lose confidence and motivation. That would ultimately be a disastrous for the judiciary, for the country. The government, who supersedes the able and skilled Judges thinking of its political benefit, often becomes victim of it. History tells us this. One injustice creates many injustices. The sooner the government realises this and stop this suicidal approach in the sensitive arena, the better for the government, the better for the nation.
Writer : FRSA FCMI, LLB Hons (London), LLM (London), FRSPH (London), FCIArb (London), Advocate, Supreme Court of Bangladesh, Barrister-at-Law (Lincoln’s Inn)
E-mail: ahmedlaw2002@yahoo.co.uk |
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Barrister Nazir Ahmed, a renowned lawyer, is one of the well known personalities in the Bangladeshi community in UK. He successfully completed LL.B (Hons) from Queen Mary, University of London in 1997. Later on he completed LLM from the same University. Mr. Ahmed was admitted as Solicitor in the Supreme Court of England and Wales and enrolled as an Advocate in the Supreme Court of Bangladesh. He was called to the Bar (Barrister-at-Law) by the Honourable Society of Lincoln's Inn in 1999. Mr. Ahmed is a Fellow (FCIArb) of the Chartered Institute of Arbitrators (CIArb). He has advance management skills, qualification and experience. He was awarded Fellowship (FCMI) by the Chartered Management Institute (CMI). Mr. Ahmed is a leading professional in environmental health and safety law. He achieved highest grade (FRSPH) of Royal Society for Public Health (RSPH). Apart from this, Mr. Ahmed is a fellow (FInstSMM) of Institute of Sales and Marketing Management (ISMM). Barrister Nazir Ahmed often takes part in national and international seminars and symposiums. He has presented many papers at those seminars and symposiums.
Alongside his studies and professional responsibilities, Mr. Ahmed is directly or indirectly involved with many local, national and international standard organizations. He is currently Vice President of Bangladesh Development Initiatives (BDI) UK, Chairman of the Justice for Bangladesh (JfB). He is also Chairman of the Board of Directors of the Tower hamlets Co-Operative Development Agency (TH CDA). He is a full member of Honourable Society of Lincoln's Inn and the Law Society. Barrister Nazir Ahmed is well respected in the community. He has acted as Election Commissioner/Chief Election Commissioner in elections of various community based organisations.
Mr. Ahmed wrote continuous articles on Legal Problems and Legal Advice in widely publicised community newspaper for more than three years. Often he does live TV programme in Community TV and Radio on Legal Advice. Frequently he attends and contributes on live TV talk shows on legal and current affairs.
Apart from being a lawyer, he is known as writer, thinker, analyst, and researcher. Besides his busy professional engagement and social activities, Mr. Ahmed often writes researched based analytical articles in the sub-editorial section of the national dailies. Mr. Ahmed has written and published three books named: Contemporary Issues in British Law and Politics, Contemporary Thinking, Behind the Inconsistencies. For his creative activities and contribution, Mr Ahmed was awarded Fellowship (FRSA) by the Royal Society of Arts (RSA). Mr Ahmed is an Associate Fellow of the Society for Advanced Legal Studies (SALS).
Barrister Nazir Ahmed has already visited more than 20 countries of the world for various purposes. He performed Hajj in 2000. Mr Ahmed got married with Mrs Salma Ahmed. He is blessed with three daughters and two sons. |
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