Justice B. B. Roy Chowdhury on the events of December 6, 1990, and more....

The late Justice Bimolendu Bikash Roy Choudhury was one of the finest and most upright gentlemen it has been my pleasure to know. His respect for the constitution was such that he was furious with the events of December 6, 1990 – years after they were over – for he realised the long-term consequences of the fateful day.

December 6, 1990. President General H.M.Ershad resigns and hands over to the Chief Justice. Chief Justice Shahabuddin, rather than the then vice-president (as was demanded by the constitution), becomes acting president. The former vice-president belonged to General Ershad’s party, and, to have him excluded, the constitution was gleefully raped by lawyers, intellectuals, donors – and the Chief Justice. After elections, the chief guardian of the constitution had the constitution amended – by the 11th and 12th amendments [*] – by Parliament to legalise this act of illegality! And we had been taught to believe that the doctoring of constitutions was the prerogative only of military dictators!
The chief guardian of the constitution had become its chief violator, and, henceforward, none in this nation can ever believe that, in the face of sufficient international and domestic pressure, the highest court of the land, the only independent institution of the country, will never cave in.

Justice Chowdhury had great respect for General Ershad. He told me that the General had never tried to influence the judiciary. This was in stark contrast to the – democratically elected – Awami League, whose ministers took tot he street with sticks when the learned judges declared themselves too embarrassed to hear the appeal against the killers of Sheikh Mujibur Rahman. A lower court had found the men guilty and has decreed that they be executed by "firing squad" – which is not allowed in Bangladesh, as the judge well knew – and, if that were not possible, by hanging. One can imagine the pressure that had been brought to bear on the magistrate, or his enthusiasm for the ruling party and its leader and prime minister at the time, Sheikh Hasina, daughter of Sheikh Mujib. One can imagine to what depths of barbarity we had descended when we reflect that our ministers carried sticks – against the judges!

Another interesting fact that Justice Chowdhury imparted to me (a fact that is never mentioned in our papers) was that General Ershad had tried again and again to separate the judiciary and the executive – and had repeatedly been frustrated by the bureaucrats. Our newspapers like to paint General Ershad as a "brutal dictator" – the facts speak otherwise. What kind of a "brutal dictator" tries to separate the executive (which he heads) from the judiciary. It was tantamount to trying to cut off his own legs!

And then in 1996 – after the Awami League shut down the country for several months and the ruling BNP tried to cling to power in a farcical election – some genius had the diabolic foresight to bring the Supreme Court into the democratic process by instituting a system of caretaker government before every poll – the chief caretaker being the last retired judge of the Court!

The Court, as was to be expected, became highly politicised – just like the bureaucracy and the army had been – and finally the western donors had to ask the army to take over on January 11, 2007: we had politicised every institution and faced near-civil war.

[*]
The appointment of, and the administration of oath to the Chief Justice of Bangladesh as Vice-President on the 21st day of Agrahayan, 1397 B.S. [local calendar] corresponding to the 6th day of December, 1990, and the resignation tendered to him by the then President and all powers exercised, all laws and Ordinances made and all orders made, acts and things done, and actions taken, or purported to have been made, done or taken by the said Vice-President acting as President during the period between the 21st day of Agrahayan, 1397 B.S. corresponding to the 6th day of December 1990, and the date of commencement of the Constitution (Eleventh Amendment) Act, 1991 (Act No. XXIV of 1991) (both days inclusive) or till the new President elected under article 48(1) of the Constitution has entered upon his office (whichever is later), are hereby ratified and confirmed and declared to have been validly made, administered, tendered, exercised, done and taken according to law. (The Constitution of The People’s Republic of Bangladesh, Section 21, Fourth Schedule [Article 150])