‘I’ predominates CJ’s observation: Tofail

Mizanur Rahman Khan | Update:

Tofail AhmedControversy continues over the judgement scrapping the 16th amendment. Commerce minister Tofail Ahmed spoke to Prothom Alo on the issue at his home on Saturday.

Prothom Alo: There has been a debate over the predominance of the individual, that is ‘I’ over ‘we’ in the recent judgement, but some contend that this actually has no reference to Bangabandhu at all. What do you say?

Tofail Ahmed: This issue had no relevance whatsoever to the judgement. This debate over ‘1’ and ‘we’ was totally unnecessary. Dr Kamal Hossain, in a recent interview with you, pointed out that the constitution began with the word ‘we’. That is true, but perhaps he forgot that Bangabandhu began his call for independence with the word ‘I’. In his 7 March speech, he had said, ‘I may not be able to issue the orders...’ Then he had also said, ‘I do not want to be the prime minister...’ There are many such sentences.

Prothom Alo: But the judgement didn’t demean this ‘I’. It seems that BNP made a malicious comment and you all reacted with counter comments.

Tofail Ahmed: I disagree. The manner in which ‘I’ has been highlighted in the judgement, is not in the manner in which I spoke about the use of ‘I’.   

Prothom Alo: In his notes on discussions with Sheikh Mujibur Rahman, US president Gerald Ford had written that Bangladesh’s president used the terms, ‘my water’, ‘my soil’, etc.

Tofail Ahmed: I had been present there at the White House. Note the use of ‘I’ there. Bangabandhu had told Ford, ‘The people of my country shed their blood. I want your aid and assistance.’ Then Ford raised a condition. It was then that Bangabandhu said, ‘I’m sorry Mr. President, I will not accept any conditions to take assistance for my people.’ What did he say in the 1970 election?

Prothom Alo: But in the preamble of the constitution...

Tofail Ahmed: Let me finish. He said, ‘If I can undergo imprisonment, oppression and suffering for you all, if I can go again and again to the gallows, if I can spend my life and youth in the Pakistan prisons, can I not then ask you for your votes?’ So those votes were given to that ‘I’. It was that ‘I’ that brought us independence and the constitution.

In the preamble to the constitution, the word ‘we’ is repeatedly used, but you have to understand the context. ‘I’ came from ‘we’, that is the people’, but at one point, this ‘we’ diminished in the face of the ‘I’ which had taken on Himalayan proportions. It took just one single roaring voice to echo the words of 75 million people. And in his speech to the nation, Yahya Khan singled out Bangabandhu and threatened him with punishment. So the judgement can be criticised for undermining this ‘I’. It is also saddening when Dr Kamal Hossain uses the fragmented quote, ‘We, the people’. He has had a memory lapse about that ‘I’. The opponents of Awami League are thrilled with this.

Prothom Alo: But the judgement repeatedly refers to Bangabandhu as Father of the Nation. So this actually recognises that ‘I’ to which you refer. But the ‘I’, which promotes an individual, has also become a negative component of the present political culture. Then there is BNP’s reaction...

Tofail Ahmed: The judgement was declared on 1 August and Awami League only expressed its reaction on 9 August. The verdict declared BNP’s founder to be an unlawful usurper of power and accused him of making the country into a banana republic, so why is BNP so thrilled? BNP started saying that if Awami League had any shame, they should resign. But that actually applies to them. If they had any shame, they should leave Ziaur Rahman’s so-called ideals and resign. Barrister Moudud Ahmed’s statement on this judgement and other comments forced us to speak out.

We were waiting to express our reaction in the Jatiya Sangsad (national parliament). We had never seen such controversy over the verdict of any chief justice in the past, not even after the verdict concerning the 5th amendment. With all due respect to the chief justice, no chief justice so far has spoken so much. He asked the media not to misquote him, but why should there be any scope for the media to misquote? 

Prothom Alo: Even the attorney general said that the media had misquoted him. The chief justice had said that the reaction to the verdict in Bangladesh was even stronger than the reaction in Pakistan when the elected prime minister was removed. It wasn’t as if he has issued a threat, as is being said now.  

Tofail Ahmed: No, it was not a threat. But the comparison was not relevant. There is a gun trained behind the judiciary in Pakistan. As for the reaction in Pakistan, Nawaz Sharif had said that the verdict would break up Pakistan again, as in 1971. ISI and military intelligence officials were appointed in the investigation ordered by the Pakistan Supreme Court into the involvement of Nawaz Sharif’s children in the Panama Papers scandal. Just imagine, military intelligence officials conducting a judicial inquiry. This is shameful. So if any example is to be given, why Pakistan? Pakistan’s human rights activist Asma Jahangir said, there are two places in Pakistan where there is no justice - the armed forces and the Supreme Court. Till date, no elected prime minister in Pakistan has completed full term in office.

Prothom Alo: But it is also true that the court functions on reference. In the verdict pertaining to the 5th amendment, Justice Khairul Huq used the name of Pakistan over a hundred times.  

Tofail Ahmed: It may have had relevance there. For example, we say that only Pakistan has a Supreme Judicial Council.

 Prothom Alo: The argument is pivoted on a wrong premise. The main issue of an impeachment process, is how the investigation is to be carried out. In India, even though the impeachment is based on votes in parliament, the inquiry is conducted by a three-member committee comprising two sitting judges of the Supreme Court. 

Tofail Ahmed: We could have done that, but didn’t have the chance. The 16th amendment was challenged through a draft of the inquiry committee. The 16th amendment couldn’t even evolve fully, and was nipped in the bud. What is the function of the Supreme Judicial Council? It’s sole function in to conduct inquiries. The constitution didn’t give the commission the authority to impeach. This had to remain with the executive.

Prothom Alo: There are incongruities in Awami League’s stand. When it comes to Article 96 concerning the impeachment of judges, you want to return to the original constitution. But when the chief justice talks to returning to the original constitution in reference to Article 116, then you all oppose this. Isn’t this ironic?

Tofail Ahmed: It was the manner in which the chief justice wanted to demean the parliament, wanted to prove it immature and ineffective, that created an adverse reaction the public mind. According to Article 7, all power belongs to the people. We are the elected representatives of the people. So no matter what you may say, in almost all democracies of the world, the parliament has the power to impeach.

Prothom Alo: The impeachment of the chief justice in Sri Lanka was condemned all over the world.

Tofail Ahmed: That maybe so. Then we see that the tiny country Lesotho is used as an example for the Supreme Judicial Council. That country has a population of hardly 200 thousand or so. Yet you use these examples. If Sri Lanka is used as an example, they you will question the quality of its democracy. This is contradictory. I will humbly ask the chief justice how he issued a letter about a former judge of the Supreme Court, so that the verdicts passed by that judge will be controversial if the anti corruption commission find proof of his corruption. 

Prothom Alo: There are apprehensions of quite a storm in the next session of parliament over this issue. But it doesn’t seem as if you all will take up any constructive constitutional reforms.

Tofail Ahmed: After the concise verdict had been issued, I spoke in parliament and had a constructive discussion. That will happen again this time.

Prothom Alo: The constitution and the rules of business do not permit discussion on the behaviour of judges.

Tofail Ahmed: We will have constructive discussions. But I regret to ask who the 10 amicus curie are. TH Khan was a minister of Ziaur Rahman. Dr Kamal Hossain left Awami League, went to another party and criticised the Awami League. He is presently a critic of the prime minister.

Prothom Alo: Kamal Hossain didn’t leave Awami League on his own will. He was forced to do so.

Tofail Ahmed: He left Awami League voluntarily to form Gono Forum in order to criticise Awami League. He claims to be one of the main authors of the constitution. Yet he opposes Article 96. This is hurtful. Rokonuddin Mahmud says one thing in the High Court, another thing in the Supreme Court. AJ Mohammed Ali was BNP’s attorney general and the nation remembers how he rushed to the chief justice to block our challenge to Professor Iajuddin being chief advisor. Hasan Arif was BNP’s attorney general and an advisor of the ‘1/11’ caretaker government. Abdul Wadud Bhuiyan is of the BNP camp and was additional attorney general when BNP was in power. Could no one close to Awami League be amicus curie, friends of the court? The friends were chosen selectively. Dr Kamal Hossain and Barrister Amir-ul Islam proudly claim to be authors of the constitution. How do they oppose the provisions of 1972?

Prothom Alo: The judgement didn’t say the parliamentarians were immature, it said that the parliamentary democratic system was immature.

Tofail Ahmed: That is bad. Wherever this system exists in the world, their parliaments are mature. What is the yardstick of this assessment?

Prothom Alo: The chief justice criticised themselves too. He said the judiciary was only relatively better, just managing to keep its nose above the water.

Tofail Ahmed: He was wanting to prove this is a dysfunctional country. It has a failed judiciary, a failed parliament, the Supreme Court was drowning. And when did the Supreme Court utter this? At a juncture when prime minister Sheikh Hasina has taken Bangladesh to an all-time high. All the giant economic gurus of the world have recognised that Bangladesh is on the verge of becoming a middle-income country. How could the chief justice make such an observation at this time?

Prothom Alo: Economic development and political development are not one and the same thing. Why do you think our parliamentary democracy is matured?

Tofail Ahmed: We are elected representatives of the people. Not all of us are hardened parliamentarians. There are many new faces. I do not even claim that I have huge experience. Would you claim that all judges of the Supreme Court are matured judges? Those appointed to the Supreme Court are not absolute strangers to us. It is not correct to draw in politics here, but we can’t overlook it either. During BNP’s rule, nine judges were not appointed despite recommendations of the chief justice. Justice Shamsuddin Chowdhury is one of them. The chief justice is lucky. BNP appointed him to a permanent judicial post. During Ershad’s government, chief justice Kamal Uddin Hossain was removed, by bringing down his age. In BNP’s time, justice KM Hasan’s age was increased so he could qualify to become chief advisor.

Prothom Alo: Now are you all putting on the pressure to remove this chief justice?

Tofail Ahmed: No, we will not create any pressure. Take note, we are not commenting on the judgement. We are commenting on the observation of the judgement. This observation was unexpected, unwarranted and unnecessary.  It has created controversy. You will not let the parliament impeach judges and will keep the power with yourselves. That is fine, but why so much talk?  

Prothom Alo: You were fine with the judgements on the 5th, 7th and 13th amendments. Though BNP was opposed to these, you went ahead with them. Now there is such a flurry of protest and opposition.  

Tofail Ahmed: We didn’t express out elation. We didn’t celebrate like BNP. We didn’t distribute sweets. When this judgement was passed, sweets were distributed and calls were made for the government to step down. After the 5th amendment verdict, we didn’t demand that BNP step down. 

Prothom Alo: You all can welcome the fact that BNP distributed sweets even though the Zia was accused of dirty politics.

Tofail Ahmed: That is BNP’s ignorance. But then, Moudud and the other who made statements, are aware that Zia’s government was unconstitutional. Moudud even wrote about this in his book. But they were celebrating the things that went against us.

Prothom Alo: In her 21 August speech, the prime minister was very critical of the verdict.

Tofail Ahmed: No, she was not. She very correctly responded to the chief justice’s remarks pertaining to Pakistan. It is unfortunate that he compared us to Pakistan. It was this regret that she expressed in her speech.  

Prothom Alo: But critics say she crossed the limit.

Tofail Ahmed: That is not so. She was very controlled. She made very responsible comments. We listened in awe. She spoke the mind of the people.

Prothom Alo:  Do you not see a lot of responsible persons speaking irresponsibly? Isn’t this disturbing for experienced parliamentarians?   

Tofail Ahmed: We speak strongly but in keeping with the parliament norms. When BNP was in parliament, the BNP women MPs behaved abominably. Your question has no basis. Not everyone speaks the same. Everyone has a different style and art of speaking.  

Prothom Alo: In India and other developed democratic countries, the Supreme Court fully controls the lower courts. Despite the logic you use to uphold the Article 96 provision for the parliament to have powers of impeachment, you deny the Article 116 provision to annul the president’s powers. That is ironic, do you not think?

Tofail Ahmed: We do not deny that. 

Prothom Alo: You do not want to curtail the president’s powers. Here you do not want to return to the 1972 constitution.

Tofail Ahmed: There are areas where we cannot return to 1972, such as in the use of Bismillah and the state religion.

Prothom Alo: But does secularism and state religion go together?

Tofail Ahmed: No matter what there may be in the constitution, Bangladesh is a non-communal democratic country.

Prothom Alo: Other than the chief justice, at least four of the judges who passed the verdict said that the fourth amendment (regarding the one-party BKSAL system) was contrary to the fundamental framework of the constitution. Will you call this a historic mistake?

Tofail Ahmed: No, not at all. Through the fourth amendment, the Father of the Nation wanted to create a different political environment for national unity. He had dreamt of tasking the country to the heights achieved by the prime minister today. This was not comparable to any other system. This was not why he had to give his life. You have written that the killer Farook was seen in 1972 and 1973 in the US embassy. 

Prothom Alo: What did you discuss with the president in Bangabhaban?

Tofail Ahmed: It was a courtesy call. The president was close to me from my student days. He is also close to Amir Hossain Amu. We were in jail together after August 1975.

Prothom Alo: Surely the issue of the chief justice came up.

Tofail Ahmed: No one wants to create a problem. The elections are ahead. We want things to remain normal. If the law minister takes steps regarding the unnecessary observations of the chief justice, then things will be fine. The law minister himself is a legal expert and is our spokesperson.  We should proceed as he says. The time for the chief justice to retire is also approaching. He hope he takes leave with dignity. 

Prothom Alo: Thank you.

Tofail Ahmed: Thank you.

This interview, originally published in Prothom Alo Bangla print edition, has been rewritten in English by Ayesha Kabir, Consultant (Content) Prothom Alo English Online.

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