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    2 MAY 2011 -- The hearing of the petition for leave to appeal filed by Professor Muhammad in the Appellate Division was taken up for hearing and continued throughout the day from 9 am.

    Dr. Kamal Hossain, Mr. Mahmudul Islam and Mr. Rokanuddin Mahmud, Senior Advocates, made submissions for Professor Yunus before the seven-member bench presided over by Chief Justice ABM Khairul Haque. The petitioner’s counsels, who had not able to complete their submissions on 5 April, 2011, took the opportunity provided today to continue with their submissions. They had not concluded when the Court rose at 1:30 p.m.

    Counsel argued that the order of the High Court Division summarily rejecting the petition had serious legal flaws. The High Court had in effect denied access to justice to Professor Yunus to protect his basic constitutional rights. They noted that the High Court’s order manifested a series of gross errors regarding basic constitutional principles to the extent that it was “unprecedented, and indicated bias”.

    Counsel also pointed out that the High Court had stated that Professor Yunus had no standing to file the writ petition because, according to Bangladesh Bank, he had ceased to be the Managing Director 12 years earlier. The High Court Division seemed to accept this contention without requiring Bangladesh Bank to explain its position, or to make any statements on oath or provide any supporting papers in this regard. The High Court had not asked the Bangladesh Bank to explain its responses to the statements made by Professor Yunus in his writ petition. But without such an explanation, Prof Yunus’s statements on oath should have been treated as correct, and admitted (ie accepted) by the Bangladesh Bank. Instead, the High Court made findings justifying the Bangladesh Bank order purporting to ‘remove’ Prof Yunus from his position as Managing Director, although they had never heard the Bangladesh Bank or seen any documents justifying its position.

    They drew the Court’s attention to how, despite Professor Yunus having created and built Grameen Bank over thirty years thus achieving great renown and recognition for Bangladesh all over the world, and ultimately winning a Nobel Prize, and despite clear arguments explaining his right to a hearing by senior and experienced lawyers, the High Court had perversely refused to admit his petition in an unprecedented manner, describing him as a ‘trespasser’ manifesting its bias. They also noted that the High Court had insisted on hearing the matter even after Counsel for Prof Yunus had pointed out that they had no confidence in continuing the hearing before the High Court Division Bench concerned.

    Mr Rokonuddin Mahmud set out the entire background to the case. Professor Yunus had stated in his petition that he had been appointed in 1990 with the approval from the Bangladesh Bank. His terms and conditions were determined by the Board under Section 14(4) of the Grameen Bank Ordinance. He could not be treated as a “kormi” (“worker) under the Grameen Bank’s 1993 Service Rules, or be subject to the retirement age of 60 stipulated there for “kormis” (workers). This was because “kormis” were persons appointed by the Managing Director and thus the MD clearly did not fall within the definition of “kormi”, as he did not appoint himself but was appointed by the Board. This entire position had been clarified by the Board in a meeting in 1999. Subsequently this position was endorsed in 2002 in a decision taken in a meeting presided over the General Manager of the Bangladesh Bank, in the presence of officers of Bangladesh Bank and the Grameen Bank. The Grameen Bank also sent to the Bangladesh Bank a copy of the Regulations of 2001, which clearly stated that no retirement age limit would apply to the post of Managing Director.

    Mr. Mahmudul Islam argued that the High Court had departed from long and well-established constitutional principles in denying to the petitioner the protection of natural justice – the right to get a hearing – which is guaranteed by Article 31 of the Constitution. This had been done on the same misconceived reasoning that since Professor Yunus had according to the Bangladesh Bank ceased to be Managing Director 12 years earlier, he was not entitled to claim that principle of natural justice should have been observed in this case. This finding and the statement that Prof Yunus was in the position of a “squatter, trespasser or usurper” and therefore, had no right to get any remedy or even a notice of the action to remove him, showed the clear bias of the High Court . It was also a “perverse” finding, given that the Bangladesh Bank, the Finance Ministry and the Government at various levels had continued to treat Prof Yunus during this entire period as the Managing Director of Grameen Bank.

    Mr Mahmudul Islam also explained to the Court that the Grameen Bank was a private bank established under a statute, which was governed by its own law, the Grameen Bank Ordinance. Under the scheme of this Ordinance, the Managing Director was appointed initially by the Government and later by the Board. Therewas no fixed term or retirement age stipulated. There had been a consistent interpretation by the Bangladesh Bank, an administrative authority, of treating Prof Yunus as MD for twelve years with no objection and under well established principles, the Bangladesh Bank would be held to be bound by this position, unless it could explain otherwise In this case, the entire issue is that the Bangladesh Bank never gave any sworn statement or affidavit before the High Court explaining its position.

    Dr Hossain submitted that the High Court by its order had failed to respect the right to due process. Prof Yunus had specifically prayed for the Court’s protection of his fundamental right to protection of the law and procedural fairness (due process) guaranteed by Article 31 of the Constitution. But the High Court totally disregarded this prayer, and did not refer to this even in a single sentence in its order of summary rejection.

    Dr Hossain recalled how in the past, even in times of autocratic or military rule, and in the face of immense pressure from governments of the day, the Court had stood up and protected citizen’s rights to get a hearing and to due process. A major example was the Eighth Amendment Judgment, where the Appellate Division had stepped in to give a landmark judgment, after a lengthy hearing and after the High Court Division had initially summarily rejected the writ petition. He submitted that the perverse findings of the kind made by the High Court Division showed that the judicial conscience had been suspended and the Appellate Division must correct such a gross wrong, otherwise the right to due process and to a remedy would be treated as totally ineffective.

    Sara Hossain
  Banker to the Poor Banker to the Poor GF USA