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August 8, 2004

Obligation to Supreme Court in the Constitution and the lawyers

Justice Mohammad Gholam Rabbani

Article 112 of the Constitution of Bangladesh reads as follows: "All authorities, executive and judicial, in the Republic shall act in the aid of the Supreme Court."

A.T.M. Kamruzzaman Syed was then managing director of Sadharan Bima Corporation. He was arrested on 14.11.88 and was detained in the Dhaka Central Jail under the special Powers Act. Subsequently a Division Bench of the High Court Division passed order of releasing him atonee. Jail authority received the order on 20.2.89, but did not release him because a fresh order of detention was served upon the detenee on the same date inside the jail. Division Bench declared the second order of detention as illegal and directed the detenee be released atonee. Jail authority received the order on 16.4.89, but did not release him atonee and so another fresh order of detention could be served on 17.4.89 when the detenee was under the custody.

Thereafter the rule of contempt of court was issued against the Deputy Inspector General of Prisons, Dhaka Central Jail. Upon hearing a Division Bench held that allowing the detaining authorities to serve a fresh order of detention inside the jail had the effect of thwarting of the order of the High Court Division. In view of article 112 no other authority can delay, stay or set aside any order of the Supreme Court and unless this dictum is followed strictly in letter and spirit it will be the end of Rule of Law in this country. The contemner was convicted and sentenced to pay a fine of Tk 500/-. (Ref: 41 DLR 508)

The expression "shall act in the aid of Supreme Court" also means that a court after disposing of a matter should allow sufficient time to the aggrieved party to take necessary and requisite steps for seeking relief in the Supreme Court. (Ref: 17 DLR 656)

It has been the century old practice that the contemners are asked to appear in person on the first date and are usually exempted from personal appearance on subsequent dates. In a case of contempt of court the judges who issued the rule are not the prosecutors, they are the judges to decide the issue of contempt in question while the attorney general is the prosecutor and the contemner is the respondent. Obviously in view of this legal position we do not find any case law in the law reports or journals where propriety of the direction to appear in person was the issue for decision. Probable another cause for such absence of case law is that no lawyer advised any contemner to file such a case or in other words, there were in those days lawyers including lawyers politicians, but no politician lawyers.

Justice Mohammad Gholam Rabbani is a retired Judge, Appellate Division, Supreme Court.