Barrister Mainul Hosein :
Ill-fated BAKSAL experiment failed in a disaster. But the people who were motivated to go for absolute power have lived on and their craze for absolute power was not to go away. The mechanism of electionless way of coming to power is helpful to grab power without popular elections.
This time we lost Bangabandhu forever. We lost him politically when he volunteered to be arrested by Pakistan army. He was not on the scene to give leadership during army occupation or thereafter to the liberation war. The government-in-exile formed in India was facing its weakness with Bangabandhu out of the scene.
It was quite unexpected to see the judiciary in Bangladesh could be easily used to make democracy unworkable. It was a rare incident. Everywhere we saw loss of leadership and lack of courage to do what we fought for in Pakistan days. At a time when ABM Khairul Haque was the Chief Justice, the issue of constitutionality of the election time caretaker government came up for judicial review before the Appellate Division of the Supreme Court. The Chief Justice ABM Khairul Haque was convinced that the unelected caretaker government during election time was unconstitutional. Justice Khairul Haque believed that his judgement annulling the constitutional provision for an unelected election-time government was based on his deep understanding of the constitutional law. He was happy with the kudos of the government. All the eminent constitutional lawyers like Dr Kamal Hossain and Mahmudul Islam advised their Lordships that such unelected election-time government was consistent with parliamentary democracy. But his Lordship the Chief Justice ABM Khairul Haque could not be persuaded. He used his casting vote to support a 3-2 majority judgement written by him and pronounced unconstitutional the provision of caretaker government passed in the parliament by unanimity. His Lordship did not hesitate to go out of his way to talk to the press in hailing the judgement.
But what is interesting in his too long a judgement, he could not cite even a single instance, where parliamentary democracy is functional, but the election time government is not an unelected government. The simple logic should have made the position clear that after the dissolution of the parliament, no government remains an elected government. What happens is: The same prime minister is asked by the Queen or the Governor General or the President to continue as the caretaker government. He works not with full cabinet but with few key ministers.
The prime minister enjoys the trust of the opposition that as the caretaker prime minister he would not be interfering with the sanctity of free elections.
If his or her’s honesty was in doubt, certainly he or she should not be accepted as the head of election time government.
I found the suggestion of Justice Muhammad Imman Ali made in his dissenting judgement was the right thing to do. His Lordship’s view was that the matter being political it should best be left for the parliament to decide. Justice Wahab Mia in his dissenting judgement was very uncompromising. I did not expect Justice SK Sinha to give his consent to the judgement. But he did.
The present government under Prime Minister Sheikh Hasina was overjoyed with the judgement and changed the Constitution in great haste before the full judgement was available.
There was no farsighted political understanding that destruction of the constitutional system does not make political leadership persist. The government improved on the judgement by adding that there would be no need for dissolving the parliament for election.
With the genius of socialism the bureaucrats have established a unique kind of parliamentary system in light of Justice Khairul Haque’s judgement, where constitutional requirement of free election was unnecessary. Politics is still moving in the direction of BAKSAL one-party autocracy.
Such retreat from democracy cannot be celebrated by the government as our liberation. That is what is happening in the name of victory of the liberation war. They called themselves freedom fighters while disregarding anybody’s right to freedom.
After “the revolutionary change” the main job of the government was to continue in power without worrying about free elections or accountability to the people. The government and not the Election Commission is in charge of conducting the election. The government is in no need to depend on people’s vote. Rigged election “victory” has become the planning of the state machinery. After the last election robbery in 2018 with the help of police, even the police joked that ‘the result of yesterday’s election was announced today’.
The judiciary is the protector of democracy but in free Bangladesh the Chief Justice ABM Khairul Haque was unfortunately jubilant in destroying free election – the very heart of democracy on a misconstruction of the practice under parliamentary system. Denial of free election is denial of people’s importance in running of the country. The voteless ones are to be so helpless as not to be citizens of the country.
The elimination of independence of the lower judiciary was also possible with the help of the judiciary. The lower judiciary has gone under the administration of the ministry of law. The Chief Justice SK Sinha was forced out of the country with the cooperation of the judges. He refused to accept the new rules for putting the lower judiciary under the control of the law ministry. The independent judiciary must have an independent secretariat.
After the jail killing of senior Awami League leaders the party became leaderless to fight for democracy. The present genre of politicians themselves do not believe in democratic free election or the independence of the judiciary. They see themselves as war heroes and not democrats whether they were near any war or not.
The unelected caretaker government backed by the army in 2007-2008 fulfilled the constitutional obligation by separating the judiciary from the executive. As the political leaders did not believe in strong and independent judiciary the government was successful in eroding functionality of the separation of the judiciary.
I, as Adviser for Law and Parliament Affairs under the caretaker government, was lucky to have my friend Mr Justice Md Ruhul Amin as the Chief Justice and others of my colleagues in the government including the Army Chief Gen Moyeen U Ahmed who were resolute to make the separation of the judiciary from the executive to happen. I was pleased to find General Moyeen’s unflinching support for the independence of the judiciary.
Some officers had the audacity to say — it would not be possible in next 22 years. It is so strange that highly placed educated officers were not recognising that separation of the judiciary was a constitutional obligation. Other than saying ‘no’ they did not suggest changes that would make separation possible any other way. We had to pass a separate law for the provision of mobile courts by executive magistrates.
But the judiciary to be independent from the executive was intolerable to the existing political government and secured the approval of the new rules by which the power of controlling the lower judiciary was vested in the President.
The Chief Justice Sinha tried not to yield to government pressure and refused to approve the rules umpteen times. The Chief Justice Sinha remained steadfast in the face of unbearable pressure. The Chief Justice was kept as a prisoner in his own house. He did not get support from his fellow judges. The judges of the Appellate Division informed their unwillingness to sit with him in the court for the reason the President had showed them some papers containing allegations of corruption against him. Their Lordships could have asked the President to refer the matter to the Supreme Judicial Council then automatically Justice Sinha would have been stopped from sitting on the Bench. The Chief Justice of a country was punished unheard and forced to go abroad. Till now, nothing was found in support of his corruption allegations.
What is happening in Bangladesh is not honourable for those who want to be proud as free citizens. We are our worst enemies to live as free people.
(Barrister Mainul Husein is the founder and former Editorial Chairman of The New Nation. This article is adapted from his renowned book Bangladesh: Tragedy of Deceit and Duplicity).
