The last BNP government passed the 14th Amendment on May 16, 2004. One of the provisions of the amendment was to raise the retirement age of our Supreme Court judges to sixty-seven from sixty-five. The move was commonly eviscerated as an attempt to influence the identity of the individual who would be the next Chief Adviser of the Caretaker Government when BNP left office. From Awami League’s own website:

On principles, nobody has got any reservation in enhancing the retirement age of the Supreme Court Judges…
This amendment has got direct bearing on formation of the next Care-Taker Govt. as per Article 58A of the Constitution…
Whatever may be the timing of holding the parliamentary election, it is now clear that the next Care-Taker Govt. would be Headed by the last retired Chief Justice of Bangladesh Justice K.M. Hasan. The burning question is whether it is at all possible to hold a peaceful, fair and impartial election by a Caretaker Govt. headed by Justice K. M. Hasan.

As the above makes clear, Awami League vehemently objected to the notion that the government was doing something to influence who would be the next Chief Adviser of Bangladesh. So vehement was Awami League’s opposition, that it launched the infamous logi-boith movement, that eventually led to two years of emergency rule. Supporters of Awami League went into intellectual paraoxysms to justify how influencing the identity of the chief adviser was such a grave sin that it would call the entire fairness of the election in question and no fair elections would be possible.

Awami League justified their decision to launch violent protests several times citing the persona of Chief Justice Hasan: “Awami League’s main demand is that Justice KM Hasan should not be made Chief Advisor of the caretaker government,” “the main bone of contention was the choice of the head of the caretaker authority to supervise the election,” “no blue print election under the BNP-Jamat alliance with Justice K M Hasan as the Chief Adviser of the Caretaker government,” “The AL does not want Justice K M Hasan to head the non-party administration.”

Writing on the tumultous day of October 28, 2006, Mahfuz Anam had this to say:

The fact that Awami League, the biggest opposition party, questions his neutrality has been known to us ever since he became the choice of caretaker chief. However, by itself, the AL’s claim did not cut much ice with us. Whatever partisan leanings there were back in the 80s, Justice Hasan’s subsequent role as a high court judge and later as the chief justice have revealed him to be a man of sufficient integrity and professionalism to be acceptable to all. Several lawyers and former judges that we have spoken to reinforce our view that he is sufficiently capable of carrying out his task as the chief of the caretaker government with fairness and competence. We also consider the controversy surrounding his latest visit to a mazar in Comilla to be highly exaggerated and blown out of proportion. Therefore, we repeat, by itself the argument of partisanship does not impress us…
However, it is the constitutional legitimacy of Justice Hasan’s position, in other words the way he became the choice to be the caretaker chief that, in our view, greatly weakens his moral authority to be the next caretaker chief…
The fact that he became the choice to be the caretaker chief because of a special constitutional amendment, in May 2004, extending the retirement age of judges from 65 to 67, naturally weakens his position.

There you have it. The decades of public service and unimpeachable behavior of a former chief justice of Bangladesh was not deemed strong enough to withstand the suspicion that he may become the chief advisor through the machinations of the government. The fact that a constitutional amendment (that, among other things, raised the number of women in our parliament, and also raised the retirement age of the Comptroller and Auditor General and members of the Public Service Commission) had the incidental effect of making him the next chief adviser was deemed sufficiently fatal to his prospects.

Fast forward to 2011. Chief Justice Khairul Haque’s reign of constitutional terror comes to an end on May 17. His replacement would normally be the next-senior justice, Justice Shah Abu Naim Monimur Rahman (appointed to the High Court by Chief Justice Habibur Rahman’s caretaker government, elevated to the Appellate Division by Fakhruddin Ahmed’s caretaker government). Instead, Awami League violates seniority and appoints Justice Muzammel Hossain as chief justice (our sincerest congratulations to him, and to Barrister Motahar). The sole motive of this violation of judicial seniority is to ensure that Chief Justice Khairul Huq becomes the next chief adviser of Bangladesh. Moreover, this violation in judicial seniority comes on the back of an earlier violation when Justice Khairul Haque was appointed chief justice by superseding two other justices senior to him. And an earlier move when the size of our Appellate Division was expanded from seven to eleven, all to expedite the promotion of Khairul Haque to the Appellate Division.

For all those who supported Awami League’s admittedly violent excesses during 2006, and its support of a de facto martial government on January 11, 2007, what should be done now? Or is it fine as long as Awami League is the beneficiary?