A BROKEN DREAM- chapter -one

A BROKEN DREAM

Status of Rule of Law, Human Rights and Democracy

Justice Surendra Kumar Sinha

Chief Justice (Rtd.), Supreme Court of Bangladesh

The People’s Republic of Bangladesh

Copyright: Lalitmohan-Dhanabati Memorial

Foundation

Table of Contents

INTRODUCTION

Early Life

Struggle for Survival

Elevation to the Bench

Emergency

Ailment, Treatment, and Elevation to Appellate Division

Fazlul Karim’s Appointment as Chief Justice

Judicial Service Commission

Charitable Work

Role in the Formation of ICT

Appointment as Chief Justice of Bangladesh

Backlog of Cases

Judicial Reforms

Responsibilities of Chief Justice

Participation in Seminars and Conferences

Reflection of Judicial Mind on Different Issues

(A) Crimes against Humanity

(A-1) Killing of Natun Chandra Singha

(B) Constitutional Convention

(C) Bangabandhu Murder Case

(D) Conduct of Public Prosecutor

(E) Doctrine of Judicial Review

(F) Legitimate Expectation

(G) Common Intention, Common Object, Culpable Homicide and Dying Declaration

(H) Bar Council

(I) Impact of Commercialization

(J) Tenancy Law

(K) Medical Education

(L) Enemy Property

(M) Alluvion and Diluvion

(N) Environment, Ecology, and Conservation

(O) Legislative Incompetency

(P) Revenue Matters

(Q) Loan Recovery Legislation

(R) Presumption of Muslim Marriages

(S) Customary Law

(T) Absorption of Employees in the Revenue Set up

(U) Police Excesses

(V) Impact of Emergency

(W) Role of Defence Forces

(X) Abandoned Property

(Y) Contempt of Court

(Z) Miscellaneous Matters

Legal Profession

Interference in the Administration of Justice

Depletion of Values

Jail Visits

Inspection of Juvenile Correction Center

Terrorism

Religion and Fundamentalism

Supremacy of Law

Secularism

Democracy

Separation of Power and Independence of Judiciary

Constitution: Sixteenth Amendment Case and its Aftermath

Ethical Values of Judges of the Highest Court and the politicians.

Character Assassination

INTRODUCTION

Of the organs of the State, judiciary is an essential and integral part and its

independence Bangladesh, which emerged through a war of independence

against Pakistani occupation army in 1971, included democracy as one of the

basic State principles in the constitution of 1972, and the constitution ensured

the separation of judiciary from the executive, and the independence of

judiciary. Part V1 of the constitution deals with the judiciary, which suggests

an independence of judiciary from the executive interference. However,

bureaucratic procedures and absence of political will of the succeeding

governments have made the independence elusive. Besides, succeeding

governments, both military dictators and civilian governments have been

averse to the idea of judicial independence and have been engaged in the

process of subverting any efforts to curtail the executive’s undue influence.

Equally important is the significant changes judiciary in Bangladesh have

undergone in the past four decades, through inclusion of highly skilled

professionals, introduction of technology, commitment of equal treatment of

citizens, challenging the culture of impunity by trying the killers of the father

of the nation and war criminals, and acting vigorously as a protector of civil

liberties, to name but a few.

I had the opportunity and honor to observe this transformation and the

hindrances as a participant of our judiciary since 1974-rising from

practitioner at a lower level of the judiciary in the north-eastern district of

Sylhet to the highest judicial position of the country, the Chief Justice of

Bangladesh. But in 2017, after the historic verdict upholding the

independence of judiciary, I was forced to leave the country and resign and

exiled by the present government. It was unprecedented in the history of the

judiciary. The unanimous verdict the highest court of the country with

observations about the state of governance and tendencies of political

leadership, was applauded by the citizens, lawyers, members of the civil

society and drew significant attention of domestic and international media.

However, it irked the power that be.

The series of unfortunate and unprecedented events, which led to the

tension between the executive and the judiciary and subsequent improper and

empathetic action against a sitting Chief Justice began on September 22,2014

when the Parliament amended the constitution to provide power of

impeaching the judges of the higher judiciary to the members of the

parliament. The constitutional sixteenth amendment deleted the provision of

removing the judges from office through a highly powerful committee of

peers called the Supreme Judicial Council (SJC). The SJC, as stipulated in

the constitution, also allowed the offender judge to have self- defense. Most

importantly, the process was meant to protect the judiciary from being

subjected to political vagaries and serving political leaders than the citizens’

May 5, 2016, a special Bench of the high Court division by majority declared

the amendment unconstitutional. Soon after the verdict the MPs blasted the

judges for nullifying the amendment and began displaying sheer disrespect to

the judiciary. However, the State opted for an appeal which was heard by a

seven-member Bench. It was incumbent on me to preside the Bench. On July

03, 2017, the Bench unanimously dismissed the appeal upholding the High

Court Division’s verdict. The complete text of the unanimous verdict,

observations made public on August 01, 2017.

Following the decision on September 13, the parliament passed a

resolution calling for legal steps to nullify the verdict. The Prime minister and

other members of her party and ministers blasted me for going against the

Parliament. Cabinet members including Prime Minister begun smearing me

alleging misconduct and corruption. While I remained confined at my official

residence and, lawyers, and judges were prevented to visit me, media were

told that I am unwell and have sought medical leave. Various ministers said I

will go abroad on medical leave. On October 14, as I was compelled to leave

the country, I tried to clear the air in a public statement that I am neither

unwell nor am I leaving the country for good. I was hoping that my physical

absence combined with court’s regular vacation will allow the situation to

calm down and good sense will prevail, the government will understand the

essence of the verdict-upholding the independence of judiciary-is beneficial

to the nation and the State. Finally, in the face of intimidation and threats to

my family by the country’s military intelligence agency called the Directorate

General of Forces Intelligence, I submitted resignation from abroad.

This book highlights my early struggle for survival and judicial life,

experiences, challenges before the judiciary in Bangladesh, its struggle for

independence: erosion of values in judicial service & of politicians: political

interference and the state of nascent democracy: reflection of judicial mind

on different issues: censuring public prosecutors’ conduct in prosecuting

cases: police excesses: impact of Emergency and the role of DGFI in

extorting money from businessmen. Also, the role of the Bar Council which

is crucial as it has failed to stand behind the court in defending its

independence due to partisan divisions: interference in the administration of

justice.

This book provides intimate accounts of the developments which led

to a tension between judiciary and executive in Bangladesh and my forced

resignation, however, they are told as my life-long journey in quest of justice

instead of trying to provide an Assessment of the state of governance or the

future pathway of the nation. Those are to be decided by the people of the

country, who have never shied away from sacrifices for liberty, justice and

equality. This is an incomplete autobiography as to how be me able to

become the first minority, both by ethnically and by religion, Chief Justice in

a Muslim majority country. This is also an account of the adverse situations I

have endured to ensure judiciary’s independence. My journey through the

tempest is also the journey of the nation through the whirlwind. As such, the

book has relevance to those who tries to understand contemporary

Bangladesh, its trials and tribulations. Anyone interested in the relationship

between the executive and the judiciary in developing countries, challenges

of judiciary in fledgling democracies will find the book relevant.

This book will have more than served its purpose if it inspires the reader, he

be a lawyer or a politician or a teacher of law college or university, or a

layman, with belief that the vocation of a lawyer is an honorable vocation

requiring the highest standards of latitude, integrity and uprightness: so also,

to a judge or a politician. There are some errors and omissions in the citations

and these are due to shortage of sufficient books that were collected by me,

but I am unable to bring with me. Some of the references are made from

memory and I hope to correct them in the next edition.

Chapter 1

Early Life

I was born in a village Tilakpur, in Moulvibazar district, in present northeast

Bangladesh. It is indeed a beautiful village on the bank of the Dhalai River

which originates in India as a rivulet being only one foot deep in the summer.

But in the rainy season it devastated village after village leaving innumerable

people homeless. There my father late Lalit Mohan Sinha had his education

in Normal High School and College in Shilchar, Cachar district, India, and

attained his Normal degree in Bengali literature which is equivalent to

Bachelor of Arts. He started his profession as a school teacher at Batuli

Ragana High School in Barlekha, Moulvibazar. My mother late Dhanabati

Sinha was then studying in Karimganj of Cachar district staying in her elder

sister’s house.

My aunt (mashi) late Kokila Sinha was staying with her husband, who

was a sub-registrar. As my aunt was very young, she was feeling very lonely,

and to give company to her elder sister, my grandparents sent my mother to

stay with her. The two sisters were born consecutively and therefore were

very close. When my father was teaching in Raghana High School, he

married my mother, who was very young then. On my father’s side, he had

one younger brother, late Bhubaneswar Sinha, who was more than six feet

tall and had a healthy and slender body physique. He was not attentive to his

education and wasted time playing with his friends, taking the advantage of

my grandfather late Dhansaw Sinha, who studied in ‘Tole’ (Sanskrit school)

and became a Pandit with a vast knowledge on recitation of Upanishads,

Vedas and wrote scriptures on religious philosophy. My father preserved and

recited them. Naturally, my grandfather had no interest in worldly affairs.

Towards the south-western corner of our house we had a big mango tree and

under the tree he set up a Mandir, calling it Brindaban, the Hindus’ holiest

place in Uttar Pradesh, India. In his Ashram, he taught ‘Rakhal Dancing’

(boys’ dance) and performed Rakhal Nrittya every month with the villagers.

Besides, he taught religious ceremonies, the Sree Geeta and Mahabharat

every day to the villagers and entertained them with ‘prasada’ – fruits

dedicated to the Deity.

Consequently, my uncle, taking advantage of my father’s absence and

my grandfather’s lack of interest in worldly affairs, was not guided properly

toward education. He remained busy with football and hockey. It was after

my father’s return in late 1947 that my mother taught my uncle at home and

then got him admitted in the high school and, ultimately, he became a

primary school teacher. My father had acquired a reputation as a teacher in

Bengali literature, mathematics and he was particularly efficient in arithmetic

(Patiganit).

We had farm land and cultivated various crops with permanent

workers. We had two buffalos for ploughing besides innumerable cows for

milk. My mother used to cook for the large joint family.

It was a practice in the family that before going to school the men took care

of the cows.

My father joined Kaliprasad High School, Munshibazar, which is located

about seven kilometers north from our house. The road was so muddy

throughout the rainy season it was not possible to attend school every day

although he had a bicycle. So, he rented a house and stayed there with my

elder brother who had been admitted to high school. Ultimately, my father

joined Kamalganj High School at the thana headquarter in which I studied.

My father inherited his father’s behavior and was a cool-minded religious

person. My mother, on the other hand, was a bit harsh toward all her children

and she used to control the day to day affairs of her children. They were five

sons and one daughter. One died from cholera while he was studying in Class

v1.

I am the second while my elder brother was getting a degree as an

engineer and then he took higher studies in Marine Engineering in London

and served in the Mercantile Marine Department, Chittagong. My third

brother is a banker and my fourth brother is a dentist, and currently they are

US citizens. My only sister Satyabhama studied in Women’s College, Sylhet.

All us brothers and sister are properly educated as my parents were attentive

to our education. My father’s days used to begin much earlier at dawn when

he used to give tuition to some students at home. His capacity to feed his

students’ intellectual hunger by sheer brilliance and untiring zeal was

praiseworthy.

My mother would share the bulk of household work along with raising her

five children, and later, after my uncle married for the second time, his wife,

Maney my kakima, also helped my mother in doing the household chores.

My mother was renowned for being a tough lady and I believe it was her

instinct and hard work that made sure that all her children received proper

education and upbringing. I was kind of very unyielding in my childhood. I

used to play in the afternoon and return home in the evening and developed a

habit of eating a lot. I had another interest which I could not restrain and that

was swimming in our small village river with my friends when flood

inundated the area. I always had friends who were senior to me.

When I was old enough, along with my elder brother Narendra Kumar

Sinha, I began to help the workers in the family farm while also studying to

lessen the burden on our parents. Aside from using the buffalos for ploughing

we also utilized them for crushing sugarcane in the autumn, which we

cultivated on the bank of the river. A huge chunk of land of about 25 bighas

was used for cultivation of sugarcane which was diluviated by the Dhalai

River.

I took my graduation in commerce from the Madan Mohan College in

1970 and was admitted to Chittagong University in the economics

department. Since I had good grades in economics from college my professor

advised me to take admission in economics at the university. The political

atmosphere at the time was very volatile. My father was not inclined to let me

study in Chittagong due to political disquiet and wanted me to join as a

teacher in his school as a commerce teacher. As my father was reluctant to

continue paying my educational cost at Chittagong due to security concerns I

was confused whether to continue my education in Chittagong or leave. After

three months I returned to Sylhet and got admitted to Sylhet Law College

without my father’s consent.

When my father came to know that I had been admitted to the law

collage, he got furious and instructed me to return home. In fact, he had

arranged an appointment for me at his school. In his view lawyers are liars

and they earn money by lying. He could not imagine that an ideal teacher’s

son could be a lawyer and earn his livelihood by lying. Consequently,

relations between my father and me were strained regarding my education in

law. In clear language I had to tell him that I could not end my life as a

school teacher and informed him that even without his financial support I

would continue my law study. From then on, I met my expenses in Sylhet by

tutoring students.

Meanwhile my uncle Bhubaneswar Sinha had been suffering from kidney

disease from a young age. In the 1960s he had surgical operative treatment of

his kidney disease and had his kidney stones removed at Kumudini Hospital,

Tangail, a famous hospital during that time established by philanthropist

Ranada Prasad Saha. Again, in the latter part of 1970 he had obstructions in

discharging urine. Therefore, I brought him to Sylhet and had him admitted

to Sylhet Medical College Hospital in the second week of March 1971. He

would not eat the hospital food and I had to carry his food from Mashimpur

where I was staying. Prof. Shamsuddin Ahmed, a renowned teacher in the

surgery department removed his kidney stones about five or six days before

March 25, 1971. As usual I brought him his food on March 25 at dusk on a

bicycle. I noticed that his body temperature was very high and decided to stay

the night with him despite his objections claiming the situation in the country

was not normal.

There was tension in the city and it was also reflected in the hospital.

Just at dawn we heard sounds of processions toward Ambarkhana area

chanting “Joy Bangla, Joy Bangla.” Almost all the patients and others came

out of the hospital compound saying that the country had been liberated.

Within half- an- hour we heard sounds of indiscriminate firing. All the

patients and everyone else returned inside the hospital and after about one

hour the bullet injured persons were brought in one after another in rickshaws

and vans. Within one hour about 70/80 injured were brought to the hospital

and the emergency department was drenched in blood.

The hospital authority sent an ambulance for bringing Prof.

Shamsuddin for the sake of the patients. As the situation was worsening my

uncle told me to go back saying that my aunt might be very apprehensive

about me because I did not tell her that I would be staying the night and

because I had come without my dinner.

So, with some hesitation I approached Mashimpur through Dariapara.

But before I entered the main road toward Zindabazar I saw many people

were standing on the edge of the by lane and observing the situation. Some of

them prevented me from going to the main road, because there was curfew;

some others said there was no curfew. When we were talking we saw that a

police jeep with a speaker was coming from Lamabazar toward Zindabazar

announcing that curfew had been declared and hence no one should go out.

Moments later an army jeep came toward us firing a machine gun

indiscriminately. I jumped on my cycle and went back to the hospital. I

noticed that some persons who were standing with me earlier had sustained

bullet wounds.

Returning to the hospital I rushed into my uncle’s cabin and fell on

the floor. He had a temperature and his surgical stiches had not been

removed. Even then he got down from his bed and asked whether I was also

injured because there were blood stains on my clothes. He gave me a glass of

water. Within a few minutes I came to full consciousness and narrated the

entire harrowing incident. I told him other people beside me were hit by

bullets and I had managed to survive with the help of my bike.

Thereafter I noticed that Prof. Shamsuddin Ahmed operated on the

injured the whole day long without taking any rest. We did not enough

money and food supply in the hospital fell short and so we did not have any

food to eat. Hence, I went to meet the hospital super to ask for some bread

and other food. He replied that there was no supply of ration and even the

regular patients could not be served breakfast, lunch or dinner. The hospital

therefore authority decided that until conditions improved patients would be

supplied with ‘khichuri’ (cooked mix of rice and lentil).

We had little money with us and I told my uncle that I would go and

bring bread from a street vendor who was selling tea and bread near the

south-western side of the hospital near Dariapara. The old Sylhet Medical

College was in the west and the hospital in the east bifurcated by a road

which passes through Dariapara and connects to the main road which goes

from Lamabazar to Zindabazar. I found only a half-pound bread and brought

it. We were put in an uncertain position: for two persons we had only half

pound bread. We did not have any drinking water and started taking water

from the bathroom tap. We lived on that one piece of bread for two days!

While my uncle was pressing me to eat the bread and I was requesting him to

have the bread as he was unwell. In truth we were eating only bits of the

bread and taking them with a lot of water. When the curfew was lifted after

48 hours, to our awe, we noticed that half of the bread was still there. I told

my uncle that the situation is completely uncertain, and I should somehow go

home to bring some food and money.

After two days, the hospital returned to its hectic state and all the

doctors and nurses got busy with the treating the bullet injured patients. I met

Prof. Shamsuddin to see the condition of my uncle so that we could return

home because of the uncertainty. He gave us some medications to heal the

surgical wound, removed the bandage and advised me to take my uncle

home. If the situation in the country became normal he would check my

uncle again after fifteen days. So, I brought him to Mashimpur on a rickshaw

after eight days. Perhaps because of the mental pressure and the agony I

suffered during those few days I developed a temperature that turned out to

be typhoid.

There were rumors that all routes out of Sylhet were going to be

closed. Therefore, either we should leave the city as soon as possible or it

would be difficult for us to leave. Towards the last week of May my

temperature was falling slightly and we along with four other families

including my present wife’s family started for our village in the morning.

Arjun Babu, my wife’s grandfather, was a very popular man who was the

accountant general of Sylhet Zila Parishad. He had close relationships with

the contractors of the Zila Parishad. One of the contractors arranged a truck

for us which was on the opposite bank of the Surma River. We came out of

the city and managed to cross the Surma by boat. I had to walk with the help

of two persons because till then I had not taken any food by mouth. We

reached Tajpur Daakbanglow at dusk. We were received by local people and

they supplied us with rice and lentil for cooking `khichuri’. After two weeks I

swallowed a bowl of khichuri and felt better.

On the following morning we started walking and sometimes took

help of rickshaw vans, when available, to take the children and sick persons

and thus we came to Sherpur ferryghat. After crossing the Sherpur River we

got a truck. The driver agreed to take us up to Srimangal. We reached

Srimangal at around 3:00 PM and from there we started walking through the

Srimangal-Bhanugah forest, more than 12 kilometers. It was an unimaginably

arduous journey. There is a road between Srimangal and Bhanugach, but it

was completely muddy. We did not feel that we were hungry or sick; the only

thing clawed in our mind was how to reach our destination without being

confronted by the Pakistani Army. We traveled in a zigzag fashion and after

crossing the Padmachera Tea Estate, we reached our maternal uncle’s (Sonai

Mama) house at the western-most portion of Madhabpur village Chingong.

Sonai Mama loved me very much and seeing my health condition he

persuaded us to stay the night. We took some puffed rice (muri) and water

and started toward our village, which was about three kilometers away

towards northeastern corner intervened by the Dhalai River. We were

determined to reach our home the same day because we thought that if we

pass the night at my uncle’s place it might so happen that we would not be

able to walk if our physical distress worsened. Ultimately, we reached our

home at around 9:00 PM.

After seven days at home I fully recovered. The road in front of our

house passes from Moulvibazar town to Kumrarchara Tea Estate, the last

point at the border with Tripura, India. The distance of this road is about 35

kilometers. The road was in a miserable state. Somewhere the depth of the

wet mud was more than one foot and in spots it was dry. In the meantime, the

Pakistani Army set up their camp at Shamsher Nagar Airport and took

control of the Thana administration by forming a Peace Committee and

started recruiting razakars through their Peace Committee. The Army directed

the villagers to make the road motor able with the help of the Peace

Committee. Some radicals from Impala of Manipur, India came to support

the Pakistan Army headed by one Sudhir of Meitai Manipuri and took refuge

in Homerjan village. He started recruiting razakars from the Meitai of

Manipuris. There was constant pressure on the villagers to repair the road,

but there was no dry soil to fill up the potholes in the road because it was the

rainy season.

I heard from one of my friends, Anil, that the army was looking for

some young persons in the locality to give them the responsibility of the

construction work instead of compelling them to join the razakar force.

Whenever we heard that the army came to our locality, we used to take

shelter in the paddy fields toward west where a vast area up to the Dhalai

River had no habitation. Sometimes it continued from morning till dusk and

in the process, leeches sucked our blood, but we could not move. It was an

atrocious situation.

Finally, the Army managed to build the road by laying tree branches

and filling earth over the branches. When the road was motorable the

movement of the army was regular. Because the border toward the south is

about 20 km away from my house. Possibly the Army thought of using the

road as the defense against the infiltration of freedom fighters as the

alternative road from Bhanugach to Patrokhola Tea Estate, which was a

motorable road. At this time, I along with Gour Mohan decided to join the

Mukti Bahini in India and took shelter in the Madhabpur village for crossing

the border. We stayed there for three nights, but could not cross the border

because the Army, in the meantime, had formed peace committees and

Razakar groups up to the remote areas and the border was totally sealed. All

along the border areas most of the population is from the Meitai sect of

Hindus and Muslim Meitai sects. Their language is more common than that

of the Bishnupriya sect of Manipuri to which I belong. These Meitai Hindus

and Muslims are supporters of Pakistan. Consequently, it was difficult for us

to cross the border. Some informers told us that the borders were completely

closed as a precaution against infiltration of freedom fighters from India. So,

after three days, I returned home, but Gour Mohan stayed in his sister’s home

at Madhabpur. Later, I came to know that he managed to cross the border

after fifteen days.

I used to pass almost all my days in the western paddy field and return

home after dusk. Toward September we were contacted by the freedom

fighters who crossed the border through deep forest in the east to gather

information about the army camp and their movements. We started giving

them information, food and when required shelter. In the last week of

November, the first batch of Muktibahini entered our locality and we

provided them shelter. I along with Anil collected rice, lentils, potato and

cooked khichuri for them on the southern bank of Rajbari pond. On the

second such event we were told by the Muktibahini to cook food for 20

persons. It was around 2:30–3:00 PM. Abdul Mannan, a clerk of CO (Dev)

office, who was a member of Meitai sect of Muslim and possibly the only

SSC passed member of their community brought the Pakistan military from

the western side by crossing the Dholai river and the Army, after crossing the

river, opened brush firing with machine guns and attacked our village. We all

fled toward the eastern side. Some of us took shelter in Mangalpur and I took

shelter at Chitlia, three kilometers to the east, in the house of Falguni Sinha,

who was around my age, of the Meitai sect. Though from the Meitai but

being my father’s student, he gave me shelter for two days. Since I had no

winter clothes with me he gave me a Manipuri wrapper. I returned home after

two days. My parents were apprehending that I was killed by the military as I

was missing for two days and scolded me. I told them that as I had links with

the Muktibahini and worked for them as an informer, I took shelter at Chitlia.

I feared that the military might target me at night and therefore as a

precaution I did not return.

In the first week of December, the Muktibahini captured our village

and the surrounding villages, then they captured the entire Thana. By

December 12 our entire locality was under the control of the Muktibahini.

After Gour Mohan and Mujibbahini forces came to our village, we went to

kill Abdul Mannan. On suspecting our move, Abdul Mannan took shelter in a

Muslim Meitai village in Tetaigaon. Then we learnt that one of my friends,

who was a leader of the Muktibahini--I do not want to mention his name to

avoid embarrassing him--gave Abdul Mannan shelter at his home. I charged

him for his conduct and he told me that as he is a clerk of CO (Dev) office

and he used to take lot of help from him. He also had attended Abdul

Mannan’s wedding reception. At that point, I developed a dislike for some of

the freedom fighters. Jalalabadi, a college friend of mine, who was a leader of

the Muktibahini took control of the Thana headquarter. After the liberation of

the country all my friends took certificates of being freedom fighters. But I

did not even make any attempt to collect one because of that reason.