DECISIONS ON JUDICIARY SEND MIXED SIGNALS

UNCLAS SECTION 01 OF 02 DHAKA 000359 SIPDIS SIPDIS SENSITIVE E.O. 12958: N/A TAGS: PGOV PHUM BG SUBJECT: DECISIONS ON JUDICIARY SEND MIXED SIGNALS ¶1. (SBU) Summary: The Chief Justice of the Supreme Court (SC) on March 17 stripped a controversial High Court panel of its jurisdiction to hear writs just before it was to consider a politically charged case questioning the legitimacy of the Caretaker Government. In another development, President Iajuddin Ahmed established a Supreme Judicial Commission (SJC) to select judicial candidates for the Supreme Court. The commission, once established, will take away the authority of the government to select judges and thus help depoliticize the higher judiciary. The decision to limit the authority of the High Court panel, however, will inevitably be viewed by some as government meddling in the judicial system. End Summary. ¶2. (SBU) Chief Justice M. Ruhul Amin on March 17 stripped a two-person High Court panel headed by Justice Shah Abu Nayeem Monimur Rahman of its writ jurisdictions, restricting it to low-profile civil cases. In recent months, Justice Rahman's panel has adjudicated a series of high profile and politically sensitive cases, including government charges of corruption against former prime ministers Sheikh Hasina and Khaleda Zia, and often ruled against the government. Rahman's panel was popular with writ petitioners because, unlike two other writ panels of the High Court, he did not hesitate to challenge government actions under the Emergency Power Rules. The panel was scheduled to hear on March 20 a writ petition questioning the failure of the Election Commission to hold parliamentary elections within the constitutionally stipulated 90-day period of the assumption of office by the Caretaker Government (CTG),which came to power in January 2007. ¶3. (SBU) Adviser for Law and Justice A.F. Hassan Ariff termed the change of portfolios of the High Court panel "a routine matter" but recognized the perceived "political implications" in it. "The big newspaper headlines point to this perception," Ariff said. Former Attorney General A.J. Mohammad Ali said re-shuffling jurisdictions of High Court panels is a common practice but the latest move was unusual because it came in the middle of the week. He said he heard speculation the government had the Chief Justice take away the writ jurisdiction of Justice Rahman on information that some people were preparing to challenge in his court the appointment of the current Anti-Corruption Commission (ACC) chairman, Hasan Mashud Chowdhury, which was made hastily without all legal formalities. Removing the writ jurisdiction was sure to create controversy following the government's recent efforts to try to force some judges to resign. ¶4. (SBU) Meanwhile, President Ahmed promulgated an ordinance aimed at forming a nine-member SJC headed by the Chief Justice to select judicial candidates for the Supreme Court's High Court and Appellate divisions. (Note: The President typically does not take such actions on his own accord. End Note.) The members of the commission would include the Law and Justice Minister, two senior judges of the Appellate Division, the Attorney General, one legislator each nominated by the Prime Minister and the leader of the opposition in Parliament, and the president of the Supreme Court Bar Association. The Secretary of the Law and Justice Ministry would serve as member-secretary to the commission. The commission, with assistance from the Law and Justice Ministry, would recommend two persons for each of the judicial positions for consideration by the president, who would make the final decision. ¶5. (SBU) Ariff told Embassy Political Specialist the SJC would not be formed until after the new Parliament was elected because two of its members must be parliamentarians. The ordinance itself loses legal effect unless the elected Parliament enacts it into a regular law. Ariff said the ordinance will exert moral and political pressure on the elected government to ensure transparency and fairness in the process of recruitment of Supreme Court judges. It is necessary to help improve the image of the judiciary, which was tainted by partisan appointments by previous regimes, he added. ¶6. (SBU) Comment: As most political activity remains banned under Emergency Power Rules in place since early 2007, the higher judiciary has received much attention as a vehicle to adjudicate politically charged issues. Despite the formal separation of the judiciary from the executive from November 1, 2007, the perception that the court system is used by the government to advance its political agenda has not changed. On March 6, the Appellate Panel of the Supreme Court approved emergency rules that dispossess the appellate courts, including the High Court, of their authority to grant bail to the special graft court convicts. That action and now the sudden stripping of writ jurisdiction from a maverick judicial panel may serve to strengthen the perception the CTG is using the courts to advance its political agenda, especially its efforts to remove the two imprisoned former prime ministers from politics. The stripping of writ jurisdiction removes one important legal avenue for the high profile corruption suspects to effectively challenge their graft cases, which could speed up trials that have languished in court. Although the ordinance for establishment of a Supreme DHAKA 00000359 002 OF 002 Judicial Commission seems a well-thought-out move, its implementation depends on the will of the next Parliament. End Comment. PASI