Mirza FI Alamgir: what happened in the legal side of things
A. On 13th October the High Court Division gave its Judgment and Order the last and most important sentence of which read as follows:
“However, the respondents will allow at least 30 (thirty…) days’ time from this day to the petitioner to vacate the house in question”.
Note 1 – There was no specific direction upon the petitioner (i.e. Khaleda Zia), meaning that she was not ordered to do anything. If there was a direction upon her, the Order would have read something like –
“The petitioner is directed to vacate the house in question within 30 (thirty) days.”
As there was no direction upon Begum Zia she had no obligation to leave her residence by the 12th of November. So the Attorney General’s media statement that she would commit contempt of court if she didn’t leave the house was simply wrong. Likewise, ISPR’s claim that Begum Zia left her house showing respect towards the High Court Order was another badly twisted reading of the Order. When there was no direction upon her, there was nothing for her to follow or respect.
Note 2 – So to whom was the Order directed? The respondents, i.e. Government et al. However, the direction upon the government was not to evict Begum Zia after expiry of the 30 days. If it was, the Order would have read something like –
“The respondents will evict the petitioner from the house in question after expiry of 30 (thirty) days from this day”.
So, although there was a direction upon the government, it was not to evict Begum Zia after 30 days. Again, what the Attorney General, ISPR, Shafique Ahmed, Mahbubul Hanif said about there being an obligation upon them to evict Begum Zia after 30 days was wrong.
Note 3 – So what did the Order actually say? My reading of the Order is suggests firstly, that the High Court assumed there would be further notice(s) served upon Begum Zia. Secondly, that as the previous notices were now validated by the Judgment, Begum Zia would respect the next notice and leave. So the direction was upon the government, in its next notice, to allow Begum Zia at least until 12th November to leave her house.
Note 4 – There were no more notices. The next “notice” was when the Police were miking in front of 6 Mainul Road from 7AM 13th November asking Begum Zia to leave.
Note 5 – The 30 days time frame was legally strange. Any Judgment or Order by the High Court Division can be appealed against in the Appellate Division within 60 days.
B. A civil petition for leave to appeal (No.2300 of 2010) and an application for stay were filed before the Chamber Judge of the Appellate Division on 8th November and it came up in the list as Item 18 for hearing on 9th November.
C. The Chamber Judge having heard both sides fixed hearing for both the petitions (appeal and stay) for 10th November before the full bench of the Appellate Division.
Note – The usual practice is that when leave to appeal and stay on a High Court Judgment or Order is sought before the Chamber Judge, if leave to appeal is granted, the appeal hearing is fixed for the next available date (usually a couple of months) and for the mean time the Judgment or Order is stayed. This practice was followed for the 17 other items that came before the Chamber Judge on 9th November and hearings were fixed for February 2011. An exception was made for item 18, both hearings were fixed to be heard together first thing on 10th November.
D. As Barrister Rafique-ul Huq, one of the two seniormost lawyers for Begum Zia (along with TH Khan) was on his way from Singapore after his wife’s cancer treatment (having heard that the appeal hearing was hurriedly fixed on the 10th), Advocate TH Khan on 10th November, prayed for an adjournment of the hearing. The AG opposed the adjournment, but the court granted adjournment till 29th November stating that it was convention that adjournment is granted when a lawyer has serious personal difficulty.
Note 1 – The hearing for whether stay would be granted was adjourned along with the main appeal hearing. So the AG and the Law Minister were not right to say that Begum Zia’s lawyers did not “move the stay petition” because firstly, it was moved before the Chamber Judge on 9th Nov, and secondly, on the 10th the hearing for stay was adjourned by the Court till the 29th.
Note 2 – If a stay hearing is adjourned, is a High Court Judgment deemed to be stayed until the stay hearing is completed? The law is admittedly not clear on this. But it has been a long-running convention of the Supreme Court that until and unless stay is “rejected” by the Appellate Division, a High Court Judgment or Order is not acted upon.
E. Being informed about the Government’s attempts to evict Begum Zia since 7AM of 13th November, Begum Zia’s lawyers Barrister Rafique-ul Huq, Barrister Rafiqul Islam Mia, and others called upon the Chief Justice at his residence at about 9.30 AM. The Chief Justice assured them that it was “impossible” that the “Government would take any action before the 29th”.
F. At about 11AM, Begum Zia’s lawyers were informed that the front gate of her residence has been torn down and law enforcement authorities are about to enter the building. The President of the Supreme Court Bar Association Khandker Mahbub Hossain then prepared a “Lawyer’s Certificate” detailing the meeting with the Chief Justice and mentioning his assurances.
G. The lawyer’s certificate was handed over to the Cantonment authorities at about 2PM but was rejected as “worthless”.
H. The AG is now right to say that if the appeal hearing goes in favour of Begum Zia, she can have her house back
Please let others know the facts!
Thanks
MIrza F.I Alamgir
Email by Tarek Safa
