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.

“The pretexts to amend the Constitution in the above manner in the garb of repealing the undemocratic provisions of the Constitution incorporated therein by the Constitution (Fourth Amendment) Act, 1975, was altogether misconceived. Firstly because the Fourth Amendment of the Constitution, whatever its political merits or demerits, it was brought about by the representatives of the people by an overwhelming majority members of a sovereign Parliament. Secondly, however undemocratic, the Fourth Amendment may appear to an army commander, the amendment of the Constitution, could not be made even by the President or the CMLA or any person, how high so ever, but only by a Parliament.”

Most interesting of Justice Khairul Haque’s verdict is his double standard viz-a viz the 4th amendment. 4th amendment of the constitution trampled the basic principle of our constitution by removing democracy and establishing one party rule banning all political parties but one. It   constitutionally curbed freedom of press and Judiciary by banning all newspaper except four which were taken over by the government and also made Supreme court subservient to the President.  Even most hawkish of the Awami League activists do not approve and support the 4th amendment and AL as a party shunned 4th amendment i.e. one party policy in its politics.

Senior Journalist Ataus Samad recently explained 4th amendment this way,

এ সংশোধনী দিয়ে : (১) প্রজাতন্ত্রের নির্বাহী ক্ষমতা রাষ্ট্রপতির হাতে দিয়ে দেওয়া হয়, যা আগে ছিল প্রধানমন্ত্রীর হাতে এবং প্রধানমন্ত্রী জাতীয় সংসদের কাছে জবাবদিহি করতে বাধ্য ছিলেন (২) দেশে শুধু একটি রাজনৈতিক দল রাখা হয়, যাকে সংবিধানে অভিহিত করা হয় ‘জাতীয় দল’ নামে এবং রাষ্ট্রপতি এই জাতীয় দলটি গঠন করার ঘোষণা দেওয়ার সঙ্গে সঙ্গে অন্য সব দল বিলুপ্ত হয়ে যায় (৩) জাতীয় সংসদে ওই কথিত জাতীয় দলটির সদস্যদের বাইরে যেন কেউ সদস্য না থাকেন, তার ব্যবস্থা নিশ্চিত করা হয় এভাবে যে তখনকার সংসদে যাঁরা সদস্য ছিলেন, তাঁদের প্রত্যেককে রাষ্ট্রপতি কর্তৃক নির্ধারিত সময়ের মধ্যে ওই জাতীয় দলে যোগ দিতে হবে এবং কোনো সংসদ সদস্য যদি তা না করেন, তাহলে তাঁর সংসদ সদস্যের পদ বাতিল হয়ে যাবে (৪) ভবিষ্যতের জন্য ব্যবস্থা রাখা হয়, যদি কোনো ব্যক্তি ‘জাতীয় দলের দ্বারা রাষ্ট্রপতি বা সংসদ নির্বাচনে প্রার্থীরূপে মনোনীত না হন, তাহা হইলে অনুরূপ নির্বাচনে রাষ্ট্রপতি বা সংসদ সদস্য নির্বাচিত হইবার যোগ্য হইবেন না।’ এ ছাড়া চতুর্থ সংশোধনী দ্বারা এই বিশেষ ব্যবস্থা নেওয়া হয় যে ওই সংশোধনী পাস হওয়ার সঙ্গে সঙ্গে তৎকালীন সরকারপ্রধান বঙ্গবন্ধু শেখ মুজিবুর রহমান রাষ্ট্রপতি নির্বাচিত হয়ে যাবেন কোনো ভোট গ্রহণ ছাড়াই। ওই পদে তিনি থাকবেন পরবর্তী পাঁচ বছর। সে সময়কার জাতীয় সংসদের মেয়াদও আরো পাঁচ বছর করে দেওয়া হয়। ১৯৭৫ সালের ২৫ জানুয়ারিতে ওই সংশোধনী পাস হওয়ার সময় জাতীয় সংসদের বয়স হয়েছিল পৌনে দুই বছর। বঙ্গবন্ধুও বাংলাদেশের নির্বাচিত প্রধানমন্ত্রী হিসেবে ওই সময়টুকু সরকারপ্রধানের ক্ষমতা প্রয়োগ করছিলেন। অর্থাৎ তাঁরা নিজেদের মেয়াদ বাড়িয়ে নিলেন। এরপর রাষ্ট্রপতি শেখ মুজিবুর রহমান যখন চতুর্থ সংশোধনীর মাধ্যমে পাওয়া ক্ষমতাবলে দেশের জন্য একমাত্র রাজনৈতিক দল ‘জাতীয় দল’-এর জন্ম দিলেন ও অতঃপর দলটির কর্মকর্তাদের নাম ঘোষণা করলেন, তখন দেখা গেল যে সব পদই পেয়েছেন শেখ সাহেবের আগের দল আওয়ামী লীগের লোকেরা। তিনি হলেন এই জাতীয় দলের, যার নাম দেওয়া হয়েছিল ‘বাংলাদেশ কৃষক শ্রমিক আওয়ামী লীগ’ (সংক্ষেপে বাকশাল নামে পরিচিত) প্রধান। বঙ্গবন্ধু শেখ মুজিবুর রহমান প্রজাতন্ত্রের সব নির্বাহী ক্ষমতার অধিকারী হিসেবে যে মন্ত্রিসভা এবং নতুন ব্যবস্থায় যে উপ-রাষ্ট্রপতি নিয়োগ করেছিলেন, তাঁরাও সবাই চতুর্থ সংশোধনী-পূর্ব আওয়ামী লীগের নেতা ছিলেন। অর্থাৎ বঙ্গবন্ধু শেখ মুজিবুর রহমান ও তাঁর দল দেশ থেকে বহুদলীয় গণতন্ত্র তুলে দিয়ে যে একদলীয় রাজনৈতিক ব্যবস্থা চালু করলেন, একটু ঘুরিয়ে বলা যায়, তা দিয়ে পুরনো আওয়ামী লীগই বাংলাদেশের মালিক ও সর্বেসর্বা হয়ে গেল। ‘মালিক’ শব্দটি ব্যবহার করলাম এ জন্য যে আমরা সেই ১৯৭২ সালে সংবিধান রচনার সময় থেকে বলে আসছি, জনগণ প্রজাতন্ত্রের সব ক্ষমতার মালিক। একই সঙ্গে আমরা বিশ্বাস করে আসছি যে জনগণের পক্ষে তাদের ‘মালিকানার’ তদারকি করে জাতীয় সংসদ।

However Justice Khairul Haque’s repeated assertion refusing to accept 4th amendment’s tyrannical character is very scary.  Following are a few excerpts from his 5th amendment verdict which discussed about 4th amendment.

“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.

Note the quote-unquote characterization of the word undemocratic.

Then, we threw our next question ( To Attorney General) ‘how could you then support such a naked seizure of power, with the collaboration of a group of serving and retired army officers, by the Proclamation dated August 20, 1975, which itself did not put forward any such plea that the taking of such power was necessary because of the enactment of the Fourth Amendment, that obviously such a belated plea raised now, is a product of afterthought, that besides, since admittedly the Fourth Amendment, whatever might be its merits or demerits, was enacted admittedly by a over-whelming majority in the Parliament. The learned Additional Attorney General was without any reply.”

“In reply to holding out the Fourth Amendment as the justification for Proclamation of Martial Law in Bangladesh, Dr. Rahman ( Plaintiff’s Attorney) said that Fourth Amendment was made by a sovereign Parliament with almost 100% per cent votes in its favour while the Martial Law Proclamations etc., were made by the usurpers and in total violation of the Constitution, as such, the Martial Law Proclamations, MLRs and MLOs were out and out illegal and that there cannot be any comparison between the Fourth Amendment and the Proclamations.”

Justice Khairul Haque threw out 5th amendment 33 years after it was passed citing his belief that 5th amendment does not comply with some ‘essential’ part of initial constitution.  While doing so, he completely forgets two major facets of 5th amendment. First it was a political issue and 5th amendment arguably filled in a political vacuum in the country. Secondly fith amendment was ratified by overwhelming majority in elected second parliament. All party actively participated in the parliament proceedings leading to 5th amendment ratification. Justice Khairul Haque is wrong saying that all were done by a bunch of active and retired military officers.  The whole society was behind Zia. Zia’s spontaneous coalition was biggest ever in history of Bangladesh. Activists from all political background, right-left-center joined hands under Zia. Professionals like Journalists- physicians-Engineers-accountants all stepped in.

Regarding  4th amendment Justice Haque continues his justification,

“However, the Fourth Amendment was a political decision and it ought to have been faced politically.”

“…the first general election of the country was held in 1973 and one of the political parties secured almost all the parliamentary seats in the National Assembly out of the total 300 seats. Virtually, it had already became a one party Parliament without almost no opposition. After the Fourth Amendment all the existing political parties joined the said National Party. We asked the learned Additional Attorney General as to why the ruling party inspite of its such majoirity became one of many, but he could not explain. However, the Fourth Amendment was a political decision and it ought to have been faced politically. But this amendment was opposed only by two or three members of the Parliament as submitted by the learned Additional Attorney General himself.”

“The Fourth Amendment made provisions for one National Party and transformed the Parliamentary form of Government into one of Presidential form of Government. This was done as a political decision on the affirmative votes of 297 Members of Parliament out of 300. This figure was stated by the learned Advocate for the petitioner and the learned Additional Attorney General submitted that 2/3 Members opposed the said Bill out of 300 Members.”

Not only Justice Haque shows double standard in his treatment of 4th and fifth amendment, he even come out critical of former chief justice Shahabuddin Ahmed for criticizing 4th amendment in a previous judgment.

“Although, Shahabuddin Ahmed, J. (as his Lordship then was) was very critical about the Fourth Amendment, in Anwar Hossain Chowdhury’s case 1989 BLD (spl)1, but with greatest respect and with utmost humility to the learned Judge,we could not be that uncharitable in our opinion since firstly, the Fourth Amendment is not the issue before us, Secondly, the said amendment was passed by a sovereign Parliament, admittedly by overwhelming majority of the representatives of the people, and thirdly, the Fourth Amendment was never challenged before any Court even obliquely.”

Incidentally,   5th amendment also was not an issue before Justice Khairul Haque when this case came to him. It was about the ownership about a cinema hall and a MLR giving the ownership of the said cinema hall to a fund for injured freedom fighters.  Nobody challenged 5th amendment in his court. And also fifth amendment was also passed by a sovereign parliament by an overwhelming majority.

“As such, we feel obliged to hold back and reserve our own opinion in this respect specially when it was not the issue in this case although the said observation was referred to us by the learned Advocates for the respondents in support of their contention on the Fourth Amendment of the Constitution by way of a very poor and out of context justification for the Proclamation of Martial Law in Bangladesh…”

Mr Haque keeps on his vitriolic attack against late president Ziaur Rahman but never ever suggests what else Zia could have done on 7th November 1975.

Justice Haque believes that secularism will return to Bangladesh and mention of Allah/ Islam will abolish from the constitution by simple scratch of his pen. This blogger does not have a problem with that decision. But this blogger does not think there is public approval of such a decision and  questions whether  one or two judges  can make such a sweeping fundamental change in the constitution.

“the Second Proclamation Order No. IV of 1978, and made the secular Republic of Bangladesh, a theocratic State, thereby the cause of the liberation War of Bangladesh was betrayed.”

“But by the Proclamations etc., the Martial Law Authorities, specially Major General Ziaur Rahman B.U. psc., changed the basic feature and structure of the Constitution so much so that secular Bangladesh had been deformed into a theocratic State.”

I hope justice Haque understands what is meant by theocracy. Iran is a theocracy, so is Saudi Arabia. Zia did not make Bangladesh theocracy.

Justice Haque, in his 391 page verdict also did not explain why he believes our war of independence was fought to uphold the principle of secularism.

Justice Haque asserts that

“On that morning, the President of Bangladesh was murdered. As such, in accordance with the provisions of Article 55 of the Constitution as amended by the Constitution (Fourth Amendment) Act, 1975, the Vice-President ought to have become the Acting President until a new President was elected.”

Only one man, on the morning of 16th August, told this very  thing. ” President is dead! So what,  Maintain chain of command. Vice President in there.”. It was none other than the late President Ziaur Rahman, the man Justice Haque abhors so much. [ Source: Hamid, M. A. Tinti Sena Obbhutthaan, 1993, Shikha Prokshony, Dhaka]

Late President Ziaur Rahman saved Bangladesh from disintegration during the days of chaos between 15th Agust and 7th November of 1975. Neither did he impose martial law on 15th August not he conducted any coup. On 7th November, the army soldier and the leader of another coup brought him out of house arrest and asked him to hold the whelm of the country. On that day, there was no other person in Bangladesh who could better command the trust and respect of the country and bring back the chain of command in the armed forces. Zia performed both the jobs bestowed upon him with superb success.

Justice Haque repeatedly compares President Ziaur Rahman to Oliver Cromwell. Out of context, he  inserts the following history in his verdict,

“In the 17th century King Charles I was beheaded at the instance of Lieutenant General Oliver Cromwell but this could not be accepted by the English people. Even after his death in 1658, they punished him for his treasonous acts. After restoration in 1660, the body of Oliver Cromwell was exhumed and was subjected to the ritual of a posthumas execution on January 30, 1661.”

Justice Haque probably has some sort of affinity towards General Oliver Cromwell. Again and again he  brought back the name of Oliver Cromwell and compared Ziaur Rahman to Oliver Cromwell. I guess the story of exhumation of Cromwell’s skeleton from Westminster Abbey and posthumous public hanging incited Justice Haque’s imagination of delivering a similar blow to Ziaur Rahman. Justice Haque’s comrades in Awami League have already started the talk. Lets see how far Justice Haque goes.

Justice Haque, however, either does not know anything and about Oliver Cromwell or he may believe in short term vengeance. [ Mentioning Cromwell so many times without knowing him again proves how dangerous is a little learning.]  Cromwell died in 1658, his body was exhumed  and the skeleton hanged in 1961. However by 19th century, Cromwell was presented as a hero in the battle between good and evil and a model for restoring morality by none other than historian Thomas Carlyle. For centuries onward Cromwell has been hailed as a dynamic and mercurial character who fought relentlessly against Royalists and catholic Church to dismantle absolute monarchy and help build England as a republic commonwealth.  And by the turn of last century, in a BBC poll, Cromwell was ranked as one of the top ten Britons of all time along with Sir Winston Churchill, Queen Elizabeth I, Sir Isaac newton, Richard Darwin, William Shakespeare etc.


Related Recommended Posts:

Chief Justice Khairul Haque

Bangladesh Supreme Court Delivers Final Verdict Regarding Fifth Amendment

Supreme Court Decides the fate of the Fifth Amendment