President Abdul Hamid administered the oath to the newly appointed Chief Justice Syed Mahmud Hossain. Photo: Courtesy Public Information Department, Bangladesh
President Abdul Hamid administered the oath to the newly appointed Chief Justice Syed Mahmud Hossain. Photo: Courtesy Public Information Department, Bangladesh

Bangladesh has a new Chief Justice – a critical position for the country, which faces an election this year that is expected to be contentious and violent.

Syed Mahmud Hossain, a senior judge in the Supreme Court, was sworn in as Chief Justice on February 3.

Mohammed Abdul Wahhab Miah, a senior appeal court judge who had been acting in that position for several months, handed in his resignation hours after the announcement, despite having nearly a year left before he is due to retire.

Usually, the senior-most judge in the Appellate Division is appointed Chief Justice, but there are no hard and fast rules mandating this. The departure of Justice Miah, however, shows the delicate situation that the country’s judiciary has been in since last year.

Miah had been the acting head judge since Surendra Kumar Sinha, the last full-time Chief Justice stepped down on November 10 last year. Sinha’s resignation was the first instance of a top judge stepping down before the end of his term in the 47 years since Bangladesh won independence.

Justice Sinha said on several occasions within a short period of time that a “conflict exists between the executive and judiciary.” The head judge is usually obliged by convention to refrain from making public comments on political matters and Law Minister Anisul Haq had remarked in April last year that the “chief justice of no other country expresses annoyance in public as often.”

At that time, tension between the two branches of the country’s administration was palpable. A Supreme Court verdict that declared the 16th amendment to the constitution illegal had exacerbated the conflict. But curiously, the conflict was elicited less by the verdict, which took away the parliament’s power to impeach judges. Rather, observations apparently made by the Chief Justice in the full text of the verdict seem to be have been the key trigger.

One remark that particularly peeved the ruling Awami League party was that “one person alone can’t be responsible for building a nation.” The Awami League interpreted this to mean that the credit for Bangladesh gaining independence did not belong to Bangabandhu Sheikh Mujibur Rahman, the father of Sheikh Hasina, the current prime minister.

Many party members were upset and their reactions were hasty and visceral; Sinha was accused of insulting the founding father. Tensions quickly escalated with Awami League. Party leaders and activists slammed the observations in the verdict and the Chief Justice’s remarks on many occasions. Sinha eventually went on leave, citing ill health.

However, before leaving the country on October 14, Sinha said he was “not sick, but embarrassed” about how a specific group of people had misinterpreted his interpretation of the verdict on the 16th amendment to Premier Hasina and spurred criticism from her. He had also warned against government “interference” in the Supreme Court, saying it “will not do any good” for the country.

Immediately after Sinha flew out, five judges in the Appellate Division said they were unwilling to continue working with him because of “11 gross allegations including money laundering, financial scam, corruptions, and moral degradation against him.” Finally, on November 10, Sinha tendered his resignation by mail from Australia.

A hard task at hand

Observers and legal practitioners say his replacement, Chief Justice Hossain, could face a testing time because Sinha’s resignation has put a spotlight on the judiciary in Bangladesh and undermined confidence between judges and the executive branch of government.

Barrister Mahbub Uddin Khokon, secretary-general of the Supreme Court Bar Association, told Asia Times the former Chief Justice had tried to free judiciary from the influence of government leaders. “I will say that the price he needed to pay for that reveals what sort of independent judiciary we have now!”

Khokon said by convention the Chief Justice has no part in the country’s politics but in Bangladesh the post is often “politicized.” He hoped that CJ Hossain would try to restore a non-political stance for the judiciary, but noted it was “not an easy task to accomplish”. He also said both the lower and higher courts in the country had been weakened over the years. “I urge the new Chief Justice to work in reinstating order in courts.”

Attorney General Mahbubey Alam also expressed concern about the state of the country’s courts. Talking with reporters after greeting the new top judge, Alam said the judiciary would collapse if the situation continued. “Some judges’ mismanagement in running court activities is tarnishing the whole judiciary’s image,” he said. Alam hoped the new CJ would bring a radical change during his tenure.

Barrister Moudud Ahmed, a member of the Bangladesh Nationalist Party (BNP)’s standing committee, told Asia Times the “Sinha incident” had made the BNP skeptical about “an independent judiciary”. But Ahmed, a former Law Minister, said new top judge “has a clean image … I hope he will be true to his oath and work for an independent judiciary”.

A bigger role in an election year

Meanwhile, 2018 is an election year in Bangladesh, and that usually demands a resolute and prudent stance from the top judge since the two major political parties — Awami League and BNP — seriously distrust each other.

Previously, polls used to be conducted under an interim caretaker administration — headed by the immediate past Chief Justice, who took the role of Chief Advisor – because both parties believed their rivals would rig the election.

But after AL government came in power in 2009, it amended the charter and abolished the caretaker government system. BNP, led by three-time prime minister Khaleda Zia has argued long and hard since then for the system to be reinstated but finally eased up after the Sheikh Hasina-led AL government refused to heed to their appeal.

BNP appears to have decided to take part in an election without a caretaker government being set up, but it has raised serious doubts on Premier Sheikh Hasina’s plans for the government before the election. It said there is no clear provision in the constitution about the election-time administration, so that could deepen the prevailing political crisis.

Ruhul Kabir Rizvi, BNP’s joint secretary-general, said 2018 was a critical year for Bangladesh. “We are very worried about whether the country will see a fair election, especially considering the fact that the ruling government tried harassing our chairperson through case after case.”

He said appointment of the new Chief Justice was not free of political influence. “We hope to get impartial treatment from him. The office of the Chief Justice should be independent so that it can give fruitful guidance under critical circumstances.”