In his recent commentary ("My Lord, We Beg to Differ," Aug 13), Mr. Mahfuz Azam respectfully disagreed with the honourable chief justice that the Supreme Court in the past had always served the nation in times of crisis. He cited a few examples, and there are also other such examples. For instance, when Justice MA Aziz was appointed the chief election commissioner in 2005, the appointment was challenged on constitutional grounds. After it issued a rule, the relevant High Court bench's authority to hear writs was revoked, as a result of which the case was never heard.
Mr. Anam also cited the example of Abdul Momen Chowdhury and others vs. Government (Writ Petition 2561/2005), to which I, too, would humbly like to draw the attention of the honourable chief justice, and respectfully request him to act.
This is a famous case, in which a High Court bench in May 2005 required MP candidates to disclose with their nomination papers information about their education, income, assets, loans, criminal records etc. in the form of affidavits. The purpose of this seminal judgment was to empower the voters so that they could make informed decisions, and to prevent criminal elements from being elected to parliament. Unfortunately, a vested interest group has been trying to prevent this judgment from taking effect, using undue means and committing fraud every step of the way.
One Abu Safa -- a third party -- filed in public interest a leave to appeal petition in July 2005 against this judgment, and undue means were used from the very beginning of the appeal process. The Supreme Court secretariat objected to Mr. Safa's petition on the ground that he was a stranger and had nothing to do with the case. However, for reasons unknown, he was allowed to swear an affidavit to file the appeal.
The scam in the process of granting the leave to appeal was very blatant. The notice for the leave to appeal hearing was not served on the Election Commission (EC) and the chief election commissioner, the only defendants in the case. The notices for the three lawyers, who were the original plaintiffs, were sent with their names, and the Bangladesh Supreme Court as their address. With such an address, naturally the notices did not reach them. Consequently, a Division Bench of the Appellate Division, headed by the chief justice, granted the leave to appeal after a unilateral hearing; however, the court did not stay the High Court judgment. Even though the case involved serious public interest, the honourable court did not bother to raise any question regarding the absence of the opposing party.
The next episode was even more bizarre. After the leave to appeal was granted, the original petitioners filed caveat and waited for the hearing before the regular bench. The usual practice when caveat is filed is to ensure the presence of the relevant parties and to hear them. Unfortunately, on December 19 -- four days after the court went for the winter recess and merely two days before the deadline for filing the nominations for the parliamentary elections scheduled to be held on January 22 -- Mr. Safa's lawyers approached the vacation bench of the Supreme Court and got a stay of the judgment, again through a unilateral hearing.
The judge of the vacation bench did not hesitate or raise any questions before issuing the stay on this important judgment involving public interest, even though a four-judge bench of his seniors, headed by the chief justice, did not do so. Interestingly, the stay order was transmitted instantaneously to the EC, which implemented it on the same day. In addition, the vacation judge issued stay on the entire judgment for all candidates, even though Mr. Safa only objected to disclosing his own educational qualifications.
In his submission for the stay order, Mr. Safa claimed that he had bought a nomination paper for the coming parliamentary elections and, since he was not highly educated, the disclosure of his educational qualification would be discriminatory against him. His junior lawyer claimed in a TV interview that Mr. Safa had directed him to file the petition for the stay. However, on inquiry we found that Mr. Safa had not bought, nor submitted, nomination papers at his Chittagong-3 (Sandwip) constituency. His name was not even on the existing electoral roll.
Mr. Safa's leave to appeal petition also contained totally false and fabricated statements. He claimed that because of poverty he could only study through class eight. However, he became self-educated and well to do, and was a benefactor of many educational institutions of Sandwip. In addition, he was a dedicated politician, social worker, and philanthropist. He also claimed that he was a popular and important leader with a great deal of public support, and that he was planning to run for parliamentary elections.
All of these claims were completely baseless. We searched for Mr. Safa but could not find him in Sandwip. According to locals, Mr. Safa is an ex-soldier repatriated from Pakistan, and is most likely employed somewhere in Dhaka as a security guard. He does not live in Sandwip, nor did he go there in the past six years. He does not even have a dwelling there. His former neighbours claimed that he was a cheat, and had married more than once without the permission of his wife. With repeated the search, but Mr. Safa could not also be traced in Dhaka.
The drama that was staged during the subsequent hearing of the appeal before the four-judge bench, headed by the chief justice, clearly lowered the prestige of the judiciary in the eyes of the citizens. During the hearing, the lawyer for the original plaintiffs, Dr. Kamal Hossain, challenged the maintainability of the appeal itself because of the fraud perpetrated in obtaining the leave to appeal. He claimed that Mr. Safa was a cheat and he was used by some interested quarter.
According to Dr. Mohiuddin Farooque vs. Bangladesh [17BLD(AD)1977], a person who serves the interests of others should not be allowed to file public interest litigation. In addition, Dr. Hossain brought before the Court the allegations of forgery against Mr. Safa and, in support, offered to show a video tape featuring Mr. Safa's wife, his relatives, and the local chairman. He also asked the court to direct the opposing lawyers to produce Mr. Safa, who was absconding, before the court. Unfortunately, the court ignored Dr. Hossain's pleas.
Realising that they were cheated, the senior lawyers withdrew, one after another, from the case during the appeal hearing. Consequently, the junior lawyer of Mr. Safa pleaded the case and argued against the disclosure of the educational qualification of candidates. However, he had no objection to disclosing the other information required by the High Court judgment.
On April 20, the court pronounced its judgment and, to the utter surprise of all concerned, granted the appeal. This meant that a popular High Court judgment on disclosures, which had already been implemented in five by-elections, was overturned in its entirety, although Mr. Safa's lawyer had objected to the disclosure of the educational qualification only. However, within a few hours, the court, over the vehement objections of Dr. Kamal Hossain, withdrew its earlier order.
It is clear that undue means, deception, and fraud had been used at every step of the way in this important case, and neither the Bar nor the Bench can deny their responsibility for the misdeeds. We humbly request the honourable chief justice to seriously investigate this one case, and give exemplary punishment to those found guilty. We further request him to, if necessary, take the necessary steps for constituting the Supreme Judicial Council under Article 96 of the constitution. We feel that with exemplary punishment to the guilty, discipline will return to the court. We also respectfully request the chief justice to ask Mr. Safa's lawyers to produce him before the court.
We recall in this context that, in a speech last April, the honourable chief justice had stated that there was a proloy or catastrophe -- a calamity of serious magnitude -- in the appointment of judges. In a recent roundtable meeting held at the Supreme Court premise, he expressed the concern that the seeds that were planted would not give a good harvest. Thus, we beg his Lordship to take urgent action to redress the situation.
It is true that judges hold constitutional positions, and there are strong restrictions against their removal. However, due diligence has not been shown in the recent appointment of many judges. Due diligence is a legal concept, and is the opposite of negligence.
According to Black's Law Dictionary, it means: "Such measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case."
In others, without an absolute standard, the demonstration of due diligence depends on the situation. Thus, the degree of care and prudence will have to be far greater for the appointment of judges, who cannot be easily removed, as compared to hiring, for example, security guards.
According to Article 95 of the constitution, an individual to be appointed as a judge must have experience of practicing before the Supreme Court for a minimum of ten years. It is alleged that due diligence was not shown by all concerned in the appointment of 19 High Court judges during the last government. More specifically, many of the newly appointed judges, although enrolled in the Supreme Court, did not have meaningful experience of practicing before the highest court of the land.
In addition, there is an allegation of tampering with the LLB marks sheet against one of them, which is still being litigated. Two of the judges were confirmed over the objection of the chief justice. It is, thus, clear that these judges were appointed in a negligent manner and without proper assessment of their capacity and competence, making the appointments at best faulty, if not outrightly illegal.
Your Lordship, the highest court of the land is the last refuge of all citizens. We fervently hope that you will take the urgent initiative to turn this last refuge of the citizens into an institution which enjoys their utmost confidence. The nation will be eternally grateful to you for this initiative.

Dr. Badiul Alam Majumdar is Secretary, Shujan (Citizens for Good Governance).