September 2010


Justice Khairul Haque, appointed Chief Justice, after superseding two senior Appellate division judges, took oath of office today. This blog will do some public service posts in introducing the readers who Justice Khairul Haque really is, what was his political philosophy, how he felt about our national political leaders and what he he thinks our nations’ political identity must be. To avoid being unfair to him and to remain within the context, we have decided to base our analysis solely on the verdicts he wrote. This posts will not be influenced by any other writing on Justice Haque.

Most contentious of his verdicts is his verdict on fifth amendment of Bangladesh constitution. Detail discussion about 5th amendment verdict took place in this and this superb posts by tacit.

So lets quote Justice Haque and try to understand him.

“We further enquired under what provision of the Constitution Justice
Sayem and Major General Ziaur Rahman B.U., PSC., amended the Constitution of
Bangladesh, from time to time, which Charls I or even Lord General Oliver Cromwell could not do without the Parliament.”

All along the fifth amendment verdict text and his later verdict on declaration of war, Mr Justice Khairul Haque has been very unfairly harsh on founder of main opposition party ( The party that ruled Bangladesh longest since independence) late President Ziaur Rahman.  tacit discusses Justice Khairul haque’s pathological hatred of Ziaur Rahman in this illuminating post. It is very unsettling to see that nation’s chief justice refuses to accept Ziaur Rahman ( The man who and whose party generally commands support of nearly 40% of the population) as a president or a political leader of Bangladesh. Throughout the verdict, he calls late President Ziaur Rahman as Major General Ziaur rahman B.U. Psc. This was Zia’s rank as of 15th August 1975. Since then President Zia’s rank was promoted to Lt General and when he died, he died as the elected President of Bangladesh.Even in government documents included in 5th Amendment verdict, Ziaur Rahman was addressed as Lt General. But Mr Khairul Haque ignores all these and keeps him referring to as Major general Ziaur Rahman and always mentioned him as an Army commander, never as a politician, let alone national or even political leader.

“…when we specifically asked him to show us any Constitutional or legal provision in justification of the seizure of State – Power of the Republic , he ( The Attorney General) was without any answer although he mumbled from time to time about the Fourth Amendment.”

The harsh, hateful rhetoric Mr Justice Haque resorted to in his verdicts are appalling. Unlike the current day trend, when Attorney General keeps the whole Judiciary under constant suppression, this above treatment of the Attorney General took place in BNP rule. Seeing the culture of these  days, it is difficult to imagine how he could deliver such a scathing series of comments against BNP’s founder and treat the BNP’s AG so rudely under BNP rule.

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A friend sends me the following email,

Today, Daily Star’s headline was how BNP MPs are drawing their monthly allowances even though they are not attending the Parliament. Prothom Alo led about “BNP’s military roots.” It opened with military officials having secret meetings with politicians at Khaleda Zia’s home, even though if you read the rest of the article, it quickly becomes clear that there’s nothing really newsworthy in the report.
So, here’s my theory about the Equation of Infamy (real and imagined). On one side of the equation is the horrible mess that AL is creating right now. To balance that, on the other wise, we will have media reports about grenade attacks, money laundering, BNP’s military roots, Ziaur Rahman’s dark sunglass, covert meetings with Daud Ibrahim, flight to Saudi Arabia with hundred suitcases, the horrors of the Fifth Amendment, and so on.

I have found absolute truth in the email. In addition I have one other trait of media treatment of Hasina Government II. If one looks at media reports very carefully, this is clearly visible that in every report in mainstream media on the rampant hooliganism by the ruling party activists, there is at least a feeble attempt to distance the PM.  Such example can be given on each major reporting on hooliganism, but if one focus on the latest one in Pabna, it will become clear. While the district administration was crying helplessly at the face of unleashing of terror by Pabna district AL leadership, the media were seen assuring the nation all was happening because the PM was out of the country  and once she listens to all these, everything will be fixed. Similarly, when one of PM’s closest and senior-most adviser declares (and a ministers seconds) that all new recruitment in government health sector jobs will only be taken from ruling party members, all criticisms were directed at the evil advisers harming the image of PM’s who can not resort to this sort low level thuggery.
However in both the cases it was the PM who herself puncture the inflated balloon of image the media created for her. While every reasonable people in the country, even some Awami League leaders like Obaidul Kader, Mahmudur Rahman Manna could not but criticize the Pabna incidence or Mudassar Ali statement, PM just came public supporting what Mudassar said ( কমিউনিটি হেলথ ক্লিনিকে দলীয় লোক নিয়োগ দেওয়া সম্পর্কে স্বাস্থ্য উপদেষ্টার এর আগে দেওয়া বক্তব্যকে তিনি সমর্থন জানান। তিনি বলেন, গত বিএনপি সরকার লুটপাট করে ১৮ হাজার হেলথ ক্লিনিকের প্রকল্প ধ্বংস করে দিয়েছিল। যাঁরা প্রকল্প ধ্বংস করেছে, তাঁদের হাতে কাজ দেওয়া নিরাপদ নয়। আওয়ামী লীগের লোকজনকে যোগ্যতার ভিত্তিতেই নিয়োগ দেওয়া হবে বলে তিনি উল্লেখ করেন। Source: Prothom Alo)  and came down hard on government officials who are the victims of ruling party activists onslaught (পাবনায় জেলা প্রশাসনে তৃতীয় শ্রেণীর কর্মচারী নিয়োগ পরীক্ষার দুটি কেন্দ্রে হামলা, ভাঙচুর এবং প্রশাসনের কর্মকর্তা ও পরীক্ষার্থীদের লাঞ্ছিত করার ঘটনা সম্পর্কে প্রধানমন্ত্রী শেখ হাসিনা বলেছেন, এক হাতে তো তালি বাজে না। ঘটনার তদন্ত চলছে। যাঁরা দায়ী তাঁদের বিরুদ্ধে ব্যবস্থা নেওয়া হবে। Source: Prothom Alo).
We see a tendency to blame  Chhatra league/ Jubo League for all mayhem. The fact is that lesson for political hooliganism comes from the top leadership. When top level decisions try to evict the opposition leader out of her house, when the PM and her cousins play jokes with the dead-body of the founder of the opposition party, when PM and her advisers openly politicize all government institutes including the Supreme court, the state Bank, the public university leadership, the police administration, the diplomatic missions— what one can expect from the lowly rural party cadres? Advising Chhatra league/ Jubo league to get better won’t be of use unless PM office itself corrects itself. Our PM herself made it clear that she is the prime minister for her party members, not for those who are not Awami League activists. Similarly her party activists took it for granted, anything of government, i. e. government job, government land, government work/ tender are ruling party property.
By punishing the local government officials who are victims of ruling party inflicted hooliganism, the prime Minister just reiterated her ten years old  ‘ একটার বদলে দশটা লাশ ‘ call to her party comrades. Ironically PM Hasina punished the government officials for crying out of helplessness  in front of ruling party hooliganism on the same week the same government enacted a whistle-blower act.  If crying out of helplessness costs half a dozen officils their jobs, what a whistle-blower will get in return of her/ his acts to expose injustices/ wrongdoings in the government.
One editor once said, প্রধানমন্ত্রী ছাত্রলীগকে সামলান.  I guess a more appropriate call from the citizens would be to God, আল্লা আমাদের প্রধানমন্ত্রী ও তার উপদেষ্টাদের সামলান.

Since this government came to power media came under relentless attack. At least two electronic media were taken off air ( probably to facilitate flourishing of ten new TV channels whose license has been distributed to party hacks by this Awami League government), declaration of one news paper were canceled, a prominent editor was put behind the bars and much more.

And while all these went on, the highest circulated Bangla and English dailies, owned by same media empire, despite the face saving lip services, maintained a shrewd complacency, in turn consciously facilitating government gag on those media of opposing business or political views. Although they were warned citing Pastor Martin Niemoller , they apparently thought themselves way too invincible.

So last week a process began what was expected to happen. These two print media came under attack by Ministers, members of parliament as well as the speaker of the house.

This blog has been vocal against this media house for quite a long time. This blog feels that the editor of the Bangla Daily under attack has done more harm to democracy and fair journalism than anyone else in history of Bangladesh. This editor and cohorts developed a new tactic of propaganda in favor of their political philosophy. It pioneered news-making culture in Bangladesh. Not only it’s op-eds and editorials were critical of it’s political opponents, news published by these newspapers are inadvertently adulterated to promote its petty partisan agenda. Without a blink of an eye, it’s editorial policy can change the content of the headline news item to support its own agenda. This newspaper has been cruel to it’s opponents in character assassination. Over the last decade, to drive it’s own goal, this specific media was so rampant in character assassination, it can be charged with agenda driven character genocide.

As the editor in question has all along enjoyed his rights of free speech in committing character genocide, now if any politician or member of parliament felt aggrieved, she/he must have the right to speak it out, be it in parliament, be it in a political rally. It is not fair to throw unsubstantiated attacks and start fear-mongering about attack on media when those under attack protests.

However rightful criticism and threat from government officials/ law makers are two different issues. And despite having such strong opinion about the media in question, this blog refuses to support the threat on this media house by the parliament. If this blog abhors double standard, this blog must criticize the attack on free media, hence criticize the recent parliamentary proceedings. And unlike progressives dealing with Daily Amar Desh and it’s editor Mahmudur Rahman, this blog refuses to add any qualification of exception to it’s unconditional criticism of the threat on Daily Prothom-Alo and the Daily Star.

To be more specific, this blog condemns the threat of the senior MP Suranjit Sengupta on enacting contempt of parliament law and protests threats of the speaker, at least two ministers and other senior parliamentarian (Sheikh Selim) of summoning an editor in front of parliamentary committee. There is already a place to complain against misadventures of media, that is called the Press Council. Any complain on media must go through press council. And any other form of state inflicted punitive/ corrective measure on media is absolutely unacceptable.

Khairul Haque is going to be the new Chief Justice of Bangladesh. Awaim League chose him superseding two more senior justices: Abdul Matin and Shah Abu Naeem Mominur Rahman. Khairul Haque will go into retirement on May 17, 2011. He will then be the Chief Advisor of next caretaker government.

All governments stand, at a crucial point in their tenure, on crossroads. What if BNP had decided to provide Sheikh Hasina SSF security during May 2004? What if Sheikh Hasina had decided to conduct early elections, as she had promised during her pilgrimage to Saudi Arabia, and when the Four-Party Alliance was still in a conceptual stage? What if Khaleda Zia had agreed to the demands of a Caretaker Government, as Barrister Abdus Salam Taluqdar had urged her?

What if Sheikh Hasina had decided not to violate seniority norms in her quest to ensure Awami League’s re-election in 2014?

Why is Khairul Haque controversial? He took the highly unusual step of deciding that a constitutional amendment, in this case Bangladesh’s Fifth Amendment, was illegal. So vitriolic and anti-BNP was his verdict that the Appellate Division, when considering it, had to “modify” his initial verdict.

What was so wrong with his verdict? Well, there is something called the political question doctrine. It essentially means that the Court is not well-situated to delve into certain questions, that are by nature political, and should be left to the political branches of government. Getting the courts mingled up in political questions erodes public confidence in the judicial system.

Does Khairul Haque like to comment on political matters? His own words speak for himself:

Major General Ziaur Rahman B.U., who might have his own interest in proving himself but
what interest of the people of Bangladesh was served in spending money for the
personal aggrandizement of one person.

Major General Ziaur Rahman, BU, psc., in exercise of [his]
autocratic and illegal power, not only made our Constitution subservient to the Martial
Law Proclamations etc. but also changed the basic structure of the Constitution

[Ziaur Rahman] knew very well that the
Proclamations etc. are all illegal and so also their activities. As such, they again came
round and sought to hide all their illegalities in the bosom of the said very Constitution
which they disgraced time and again in their free wills, whims and caprices. In their
such pursuits, ironically, there was no dearth of hypocrisy in that although the Dictators
freely truncate and modify the various provisions of the Constitution all the time to suit
their ends but when those very illegal Proclamations etc. become part of our sacred
Constitution, those become unchallengable, as argued by the learned Advocates for the
respondents.

We have already seen above how Khondaker Moshtaque Ahmed, Justice
Sayem and Major General Ziaur Rahman, B.U., psc., the three usurpers treated our
Constitution. This Constitution was written on the blood , toil and tears of milions of
Bangalees but this was treated not even as one ‘Dog Act’ or ‘Rat Act’ , they treated it
most disgracefully although all of them took oath to ‘preserve, protect and defend’ the
said very Constitution but even a plane ticket gets more attention and are from a
chance traveller to Bangladesh.

Major General Ziaur Rahman being an
usurper to the Office of the President and in the Office of the legally non-existent Chief
Martial Law Administrator, had no authority to change the Constitution.

[Ziaur Rahman] made the secular Republic of Bangladesh, a theocratic State, thereby the cause of the liberation War of Bangladesh was betrayed.

As an aside, Khairul Haque returned to Bangladesh in 1970 after getting his law degree from England. We look forward to hearing what his contriubtion was to the Liberation War.

But, let us resume:

Major General Ziaur Rahman B.U. psc., did not even stop there.
The autocratic Government was soon degenerated into a military dictatorship. He not
only continued with the illegalities committed by his predecessors in office but
destroyed the basic structures of the Constitution on the false pretext of repealing the
‘undemocratic’ provisions of the Fourth Amendment.

Quotations marks around the work undemocratic when talking about the Fourth Amendment, aka BAKSAL. You can’t make this stuff up.

Major General Ziaur Rahman BU, could attain the highest
office in Bangladesh apparently without much efforts.

Writing a verdict is a rare art form. You start with the applicable laws, apply them to the facts at hand, and reach your conclusion. When you start throwing around words like usurper, autocratic, and hypocrisy from the very beginning, it is quite clear that this is not a verdict, this is the strongly-held opinion of an essentially political person who also happens to be a judge.

This is the person who will be ensured with holding a free and fair election in 2014. Perhaps someone should check K. M. Hasan’s availability.

After our independence in 1971, many properties owned by citizens of West Pakistan were found abandoned and taken over by the state. Moon Cinema hall was such property in Old Dhaka and it was taken over by the government and given to a benefit trust of Freedom fighters ( War veterans).

The old owners, Masud family wanted the property back and sued the state. Taking the opportunity of such a writ, Justice ABM Khairul Haque invalidated the fifth amendment and mandated the state to go back to 1972 constitution. As a result of Mr Khairul Haq’s verdict Freedom fighter’s trust were asked to return the property to the old owners.

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