We are living in a judges’ republic, remarked a former chief justice. Chairman of the Law Commission, ABM Khairul Huq, called a sudden press conference and vented anger at the scrapping of the 16th amendment. He was joined by another former judge. Their overt political reaction may very well be an indication of their intent to join politics in their retirement.
Questions can be raised as to whether it is in the purview of the Law Commission to criticise any judgement of the Appellate Division of the Supreme Court. The functions of the commission as enlisted in the Law Commission Act 1996 Section 6, do not include any provision for criticism of the Supreme Court.
He, of course, has the right as any citizen to express his opinion about the judgement concerning the 16th amendment. But he presently occupies an office of profit of the republic and cannot express his personal views while utilising the establishment and facilities of that office. A judgement which he himself pronounced maintains that a judge cannot take up an office of profit after retirement.
Seated beside him at the press conference was another member of the commission, former justice ATM Fazle Kabir and the commission’s chief research officer Fauzul Azim. Arguing in favour of keeping the judges accountable to parliament, he said, every employee of the republic is accountable, they are accountable to someone or the other. It is laudable how he has become quite used to being accountable to parliament due to his Law Commission job. However, before he demanded that the judges be accountable to parliament, it would have been prudent for him to have reread some of his own judgements.
ABM Khairul Huq had become well-known as a High Court judge for his declaring illegal the martial law of Ziaur Rahman and the laws, orders and regulations imposed during that time.
However, he also became controversial for scrapping the 13th amendment as chief justice. It may also be recalled that as High Court judge when he scrapped the 5th amendment, it was ATM Fazle Kabir who was the judge with him on the bench. In his judgement scrapping the 5th amendment, he wrote, ‘Bangladesh is a Sovereign Democratic Republic, governed by the Government of laws and not of men.’ In the very next sentence he wrote Bangladesh’s constitution is sovereign and is the highest law of the land. All other laws, actions and functions must be in keeping with the constitution. He termed the legislature, the executive and the judiciary as the three organs of state and said these were created by the constitution and the provisions of the constitution bond them together. The legislature made laws, the executive implemented them and the judiciary ensured these were in keeping with the constitution.
In the judgement concerning the 16th amendment, the Appellate Division also maintained that the constitution is the seat of sovereignty. Parliament is not sovereign, it does not have the powers to change the framework of the constitution. In the judgement scrapping the 5th amendment, justice Khairul Huq and justice Fazle Kabir excused many of the changes made to articles in the constitution during the military rule. These included Article 95 where the president would be obliged to consult with the chief justice regarding the appointment of judges. It would not be erroneous to assume here that he was hoping that he would be chief justice eventually and in that event he would not be a mere spectator when it came to appointing judges.
He also overlooked and gave legality to other amendments made during the military rule such as the inclusion of ‘Bismillah’ to the constitution, and issues pertaining to nationality and citizenship. Yet now in criticising the judgement on the 16th amendment, he said that this was the first case where the provisions of the original constitution have been dropped in favour of ‘martial law provisions’.
He may have been praised in the past for his judgement in the case regarding acquisition of Moon cinema hall as enemy property and declaring martial law illegal, but it is only natural for questions to arise as to whether there were any political motives for his retaining particular changes to the constitution made by the military government. The reason that these questions arise is the stark difference between his original stance and his reaction to the verdict on the 16th amendment. But then, his political influence is widespread.
He was castigated in political circles for his judgement scrapping the 13th amendment which had provision for elections under a caretaker government. This was particularly questioned as he wrote this judgement 15 months after his retirement. Yet before his lengthy judgement was published, the government had passed the 15th amendment where at least one directive of his verdict was overlooked. Had he issued the verdict before going on to retirement, that directive would not have been overlooked, it is believed. Three out of seven on the bench differed from his judgement. And the most controversy arose over the difference between the declared judgement and the written order of the judgement. Many believe that the abolition of the caretaker government system has rendered Bangladesh’s political situation troubled and complicated.
Given these circumstances, justice Khairul Huq’s remarks on the 16th amendment verdict have certainly created a stir in the political arena. This seems to be yet another post-retirement judgement of the former chief justice. And it can hardly be said that this will have any positive contribution whatsoever towards taking democracy or the rule of law ahead.
* Kamal Ahmed is consulting editor of Prothom Alo. This column, originally published in Prothom Alo Bangla online, has been rewritten in English by Ayesha Kabir.