One of the main authors of the constitution and an amicus curie in the case regarding the 16th amendment, Dr Kamal Hossain, talks to Prothom Alo on the judgement that scrapped the amendment and stirred up a debate.
Prothom Alo: How do you view the ongoing debate concerning the judgement regarding the 16th amendment?
Dr Kamal Hossain: The constitution itself has provision to avoid such debate. We talk about adhering to the constitution. Responsible persons should now emphasise the need to do this further. The constitution clearly says that it is the Supreme Court that will provide explanation to any question that may arise concerning the constitution. Article 105 of the constitution says, “The Appellate Division shall have power to review any judgement pronounced or order made by it.”
Prothom Alo: But many of those who have taken oath to protect and uphold the constitution are making hard-hitting remarks.
Dr Kamal Hossain: I will not comment on that. But in general, I would say, we should never make any remarks that would give the people reason to think that the constitution has been breached. I simply cannot understand why and how such a debate has arisen over a judgement. Where the constitution is in force, it is recognised that the Supreme Court will interpret the constitution. This is just one of many significant judgements which contain constitutional interpretation.
Prothom Alo: There are allegations that even those not in the government office, are making comment amounting to contempt.
Dr Kamal Hossain: I won’t comment on them either. However, I want to quote Article 21 (1) of the constitution in their context: “It is the duty of every citizen to observe the Constitution and the laws.”
Prothom Alo: What does the constitution say if there is any conflict regarding the observations of a judgement?
Dr Kamal Hossain: Whether it is a judgement of the Supreme Court or an observation, it is unthinkable in the constitutional framework that any such unwarranted discussion takes place outside of the four walls of the court. If any explanation is required or if anyone is dissatisfied for any reason, the matter can be taken up in the Supreme Court, in keeping with the rules and regulations.
The constitution has two specific articles in his regard and it is compulsory for everyone to follow these. After the judgement was declared, I have restricted myself to simply saying that Articles 111 and 112 must be followed. The bottom line here is, from the day when the Supreme Court declares a judgement, that will be considered a ‘declared judgement’ and all executive and judicial authorities of the republic must act in aid of the Supreme Court in this regard. It would be most unfortunate of the common people perceive that there is non-cooperation rather than cooperation with the court.
Prothom Alo: Article 111 declares that the law declared by the Appellate Division is binding on the High Court and the law declared by either division of the Supreme Court is binding on all courts subordinate to it. Many point out that this article does not mention the government or parliament?
Dr Kamal Hossain: There is no need to do so. Articles 111 and 112 are guidelines. The review-related Article 105 was drawn up in 1972 to determine how to settle any unwarranted debate that may arise. The constitution of 1972 gives no scope for the manner in which the constitution is being interpreted outside the court at present, though there is so much talk of upholding the 1972 constitution. But the fact remains, the judgement of the Supreme Court must be accepted. The constitution does not provide scope for freestyle discussion on judgements.
Prothom Alo: Many people have confidence in the amicus curie to point out any comments that may be a slur against Bangabandhu. But no one did so.
Dr Kamal Hossain: It is confusing why and with what motive any reference to Bangabandhu has been made in relation to the judgement. I simply do not understand this. It seems the matter is being unnecessarily raised. When there is no reference to Bangabandhu in the judgement, then why is this issue being stirred up?
Prothom Alo: The confusion may have arisen as the judgement was not perused properly. Many persons are now saying that comments should be made only after reading the judgement.
Dr Kamal Hossain: I wholeheartedly agree. I would call upon all responsible persons to read the judgement. I believe unnecessary controversy can be avoided if the judgement is read thoroughly and understood. There can be constructive criticism regarding the constitution and the judgement in a democratic system. However, the freestyle manner is which things are being done now, is certainly not a sign of a healthy democratic society.
Prothom Alo: Have you read the judgement and have you found any objectionable reference to Bangabandhu in the constitution?
Dr Kamal Hossain: I have read the judgement and have not found a single word that reflects even the slightest disrespect towards Bangabandhu. Those who claim that they have found such objectionable references, should quote the exact page number and sentence. Then they can ask for a resolution to the matter.
Prothom Alo: Some say this has not been directly stated, but that there is oblique reference about no individual to be given credited. They say this refers to the sole leadership Bangabandhu. The word ‘we’ has been emphasized.
Dr Kamal Hossain: I repeat, there is no word or hint in the judgement that is disrespectful towards Bangabandhu. I haven’t just read the judgement, I have read it thoroughly. I have found nothing that indicates anything against him. We have to keep in mind that the constitution of 1972 signed by Bangabandhu began with the words, “We, the people….” The chief justice elaborated on that. I would say that everything in the judgement is in favour of Bangabandhu. The judgement acknowledges him as the father of the nation. So any debate on this is unwarranted. In fact, his role in achieving independence is brilliantly highlighted in the judgement.
Prothom Alo: An amicus curie has remarked that for the first time, “We, the people…” has been explained in our jurisprudence. This is an extraordinary judicial dimension.
Dr Kamal Hossain: I agree.
Prothom Alo: There is so much debate over the appointment and dismissal of judges, but there is no appointment process.
Dr Kamal Hossain: The matter is being discussed in all quarters now. Everyone demands that this should be done. This must be brought under the law. This has been raised from a long time back, but there has been no initiative in this regard.
Prothom Alo: The judgement of the 10 judges has certain guidelines for the judiciary regarding the selection process of judges. But implementation of the judiciary part is not visible.
Dr Kamal Hossain: Given the prevailing circumstances in the country, there is no environment to discuss this. Among the organs of the state, the judiciary is functioning well. So there is nothing to say about this for the time being.
Prothom Alo: The Appellate Division’s judgement gives a full-fledged code of conduct.
Dr Kamal Hossain: I welcome that.
Prothom Alo: In the past, the judgements regarding the 8th amendment and the 13th amendment were divided, but not this time.
Dr Kamal Hossain: It is significant that all seven judges were in consensus about this judgement. This is another reason why this is a historic judgement. I would say everyone should be more respectful about the unanimous judgement of a full court of the Appellate Division.
Prothom Alo: Thank you.
Dr Kamal Hossain: Thank you.
* This interview, originally published in Prothom Alo Bangla print edition, has been rewritten in English by Ayesha Kabir.