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Cablegate: Decisions On Judiciary Send Mixed Signals

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RR RUEHCI
DE RUEHKA #0359/01 0840529
ZNR UUUUU ZZH
R 240529Z MAR 08
FM AMEMBASSY DHAKA
TO RUEHC/SECSTATE WASHDC 6499
INFO RUEHIL/AMEMBASSY ISLAMABAD 2104
RUEHNE/AMEMBASSY NEW DELHI 0572
RUEHKT/AMEMBASSY KATHMANDU 9603
RUEHLM/AMEMBASSY COLOMBO 8378
RUEHCI/AMCONSUL KOLKATA 1224

UNCLAS SECTION 01 OF 02 DHAKA 000359

SIPDIS

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV PHUM BG
SUBJECT: DECISIONS ON JUDICIARY SEND MIXED SIGNALS

1. (SBU) Summary: The Chief Justice of the Supreme Court (SC) on
March 17 stripped a controversial High Court panel of its
jurisdiction to hear writs just before it was to consider a
politically charged case questioning the legitimacy of the Caretaker
Government. In another development, President Iajuddin Ahmed
established a Supreme Judicial Commission (SJC) to select judicial
candidates for the Supreme Court. The commission, once established,
will take away the authority of the government to select judges and
thus help depoliticize the higher judiciary. The decision to limit
the authority of the High Court panel, however, will inevitably be
viewed by some as government meddling in the judicial system. End
Summary.

2. (SBU) Chief Justice M. Ruhul Amin on March 17 stripped a
two-person High Court panel headed by Justice Shah Abu Nayeem
Monimur Rahman of its writ jurisdictions, restricting it to
low-profile civil cases. In recent months, Justice Rahman's panel
has adjudicated a series of high profile and politically sensitive
cases, including government charges of corruption against former
prime ministers Sheikh Hasina and Khaleda Zia, and often ruled
against the government. Rahman's panel was popular with writ
petitioners because, unlike two other writ panels of the High Court,
he did not hesitate to challenge government actions under the
Emergency Power Rules. The panel was scheduled to hear on March 20 a
writ petition questioning the failure of the Election Commission to
hold parliamentary elections within the constitutionally stipulated
90-day period of the assumption of office by the Caretaker
Government (CTG), which came to power in January 2007.

3. (SBU) Adviser for Law and Justice A.F. Hassan Ariff termed the
change of portfolios of the High Court panel "a routine matter" but
recognized the perceived "political implications" in it. "The big
newspaper headlines point to this perception," Ariff said. Former
Attorney General A.J. Mohammad Ali said re-shuffling jurisdictions
of High Court panels is a common practice but the latest move was
unusual because it came in the middle of the week. He said he heard
speculation the government had the Chief Justice take away the writ
jurisdiction of Justice Rahman on information that some people were
preparing to challenge in his court the appointment of the current
Anti-Corruption Commission (ACC) chairman, Hasan Mashud Chowdhury,
which was made hastily without all legal formalities. Removing the
writ jurisdiction was sure to create controversy following the
government's recent efforts to try to force some judges to resign.

4. (SBU) Meanwhile, President Ahmed promulgated an ordinance aimed
at forming a nine-member SJC headed by the Chief Justice to select
judicial candidates for the Supreme Court's High Court and Appellate
divisions. (Note: The President typically does not take such actions
on his own accord. End Note.) The members of the commission would
include the Law and Justice Minister, two senior judges of the
Appellate Division, the Attorney General, one legislator each
nominated by the Prime Minister and the leader of the opposition in
Parliament, and the president of the Supreme Court Bar Association.
The Secretary of the Law and Justice Ministry would serve as
member-secretary to the commission. The commission, with assistance
from the Law and Justice Ministry, would recommend two persons for
each of the judicial positions for consideration by the president,
who would make the final decision.

5. (SBU) Ariff told Embassy Political Specialist the SJC would not
be formed until after the new Parliament was elected because two of
its members must be parliamentarians. The ordinance itself loses
legal effect unless the elected Parliament enacts it into a regular
law. Ariff said the ordinance will exert moral and political
pressure on the elected government to ensure transparency and
fairness in the process of recruitment of Supreme Court judges. It
is necessary to help improve the image of the judiciary, which was
tainted by partisan appointments by previous regimes, he added.

6. (SBU) Comment: As most political activity remains banned under
Emergency Power Rules in place since early 2007, the higher
judiciary has received much attention as a vehicle to adjudicate
politically charged issues. Despite the formal separation of the
judiciary from the executive from November 1, 2007, the perception
that the court system is used by the government to advance its
political agenda has not changed. On March 6, the Appellate Panel of
the Supreme Court approved emergency rules that dispossess the
appellate courts, including the High Court, of their authority to
grant bail to the special graft court convicts. That action and now
the sudden stripping of writ jurisdiction from a maverick judicial
panel may serve to strengthen the perception the CTG is using the
courts to advance its political agenda, especially its efforts to
remove the two imprisoned former prime ministers from politics. The
stripping of writ jurisdiction removes one important legal avenue
for the high profile corruption suspects to effectively challenge
their graft cases, which could speed up trials that have languished
in court. Although the ordinance for establishment of a Supreme

DHAKA 00000359 002 OF 002


Judicial Commission seems a well-thought-out move, its
implementation depends on the will of the next Parliament. End
Comment.

PASI

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