A plan gone awry at SC
Khaleda Zia's counsels killed nearly 90 minutes by insisting on making submissions on a contempt petition first to the Appellate Division, after an attempt to get a leave-to-appeal petition dropped from the cause list.
Wishing anonymity, a counsel for the BNP chairperson told The Daily Star about the plan yesterday. The lawyer said Khaleda's counsels made a move on November 28, the day before the court hearing, to get the leave-to-appeal petition dropped from the cause list.
Khaleda's lawyers pressed the apex court bench on November 29 to hold a hearing on the contempt petition first fearing that the leave-to-appeal petition, which was on top of the cause list, might get dismissed right away.
The petition challenged the High Court verdict that declared valid the government notice on Khaleda to leave the disputed cantonment house and sought to stay the HC judgment.
Khaleda, through her lawyers, moved to file a petition on November 28 to get the leave-to-appeal petition dropped from the cause list on grounds that she would not get justice from the three-member bench headed by Chief Justice ABM Khairul Haque.
In the fresh petition, Khaleda indirectly expressed no confidence in the apex court judges, who in their judgment on the fifth amendment had observed that former president Ziaur Rahman took power illegally.
CJ Khairul handed down a judgment on the fifth amendment to the constitution at the High Court while the other two judges -- Md Muzammel Hossain and Surendra Kumar Sinha -- gave a verdict on the matter at the Supreme Court in February.
Khaleda's counsels filed the petition with the SC section concerned but could not complete the formalities on November 28 to take the matter to the court the following day.
They planned to place the petition before the bench if they could get permission to make submissions on the contempt petition first. But they did not get scope for it during the 90-minute debate with the bench on November 29.
Barrister Rafique-ul Huq told The Daily Star last evening that he stood for a while in the courtroom on that day to tell the chief justice that an application was ready to be placed to get the leave-to-appeal petition dropped from the list but he was not personally interested to move such an application.
Khaleda's other lawyers said the fear of dismissal of the leave-to-appeal petition was behind their opting for the hearing on the contempt petition first. Besides, it could also give them the chance to understand the mindset of the apex court judges.
If they could sense that the court order on the contempt petition would go against them, they would express unwillingness to make submissions on the leave-to-appeal petition, said one of Khaleda's lawyers requesting anonymity.
BNP chairperson's counsel Moudud Ahmed on November 29 tried to submit the application to the apex court through Rafique-ul Huq to get the leave-to-appeal petition dropped from the cause list fearing that the BNP chairperson would not get justice from the judges.
But the court did not allow Rafique-ul Huq to submit the application and passed the order, said Khaleda's another counsel.
Barrister Mahbubuddin Khokon, another counsel for Khaleda, said the chief justice might have known the contents of the application somehow.
Rafique-ul Huq yesterday morning told reporters that they did not file any application expressing no confidence in the apex court.
Attorney General Mahbubey Alam told journalists in the morning that neither Advocate TH Khan nor Rafique-ul Huq submitted such petition. But Moudud Ahmed's chamber took the move to file such a petition on behalf of Khaleda with the section concerned of the apex court.
But the petition could not be officially treated as a petition since Moudud's chamber did not take permission from the SC for its filing or its being listed for hearing.
As per SC rules, the petitioner has to take its (SC) permission to file any petition and to move it.
Moudud Ahmed, at a press conference at the north hall of the Supreme Court Bar Association yesterday, said they submitted the petition to the SC Registrar's Office seeking the Appellate Division's order to drop the leave to appeal petition filed by Khaleda Zia on November 8.
“But the chief justice on that day [November 29] said they will not hear the petition, and therefore we were deprived of placing the petition,” Moudud said.
The SC's dismissal of the leave to appeal petition without hearing it is an unprecedented event, he said.
Moudud also said the judges of the Appellate Division themselves should have refrained from hearing the case as per the tradition, principle and norms of this court.
The BNP chairperson did not express "no confidence" in the apex court, but sought to drop the leave-to-appeal petition from the cause list.
In the petition, Khaleda said she genuinely and seriously apprehends that she may not get "justice" if the matter is heard by the judges of the apex court.
The Appellate Division bench dealt with the case concerning Khaleda's previous cantonment residence.
The petition said, "She (Khaleda) has the fullest trust and faith in the independence of judiciary and in the authority and supremacy of the Supreme Court, and holds the highest regard and respect for the Hon'ble judges."
It went on, "She believes that as the wife of the late president Ziaur Rahman for whose invaluable services for the people and the nation the aforesaid property (cantonment residence) was leased to her.
"And now their lordships (SC judges) having declared that President Ziaur Rahman was an illegal occupier of the office of the president, it has caused a conflict of interest on the part of the judges in adjudicating the leave to appeal petition pending before this Hon'ble court."
The attorney general said Moudud Ahmed's statement is ridiculous since he (Moudud) himself, when he was a Jatiya Party leader, had said they would once evict Khaleda Zia from the cantonment residence.