Not many will understand how painful it is for people like us who believe in the rule of law and hold in high esteem the judges to say something disrespectful against a former Chief
Justice however rightly.
It was a surprise that as former Chief Justice ABM
Khairul Haque himself was too anxious to criticise the present Chief Justice and other judges of the Supreme Court for
defending blatantly the political leadership and in the language most unjudge
like. Nothing he said at the press conference held Wednesday was
befitting of a judge. In cool moments he will find he has demeaned himself and
he did so by going out of his way.
Firstly, he is holding the position of the
Chairman of the Law Commission and while criticising the role of his once fellow
sitting judges he should have known his own role. Surprisingly he called
the press conference only to criticise the judgement of the Supreme Court on impeachment.
He has first to explain the need for him to hold
the press conference. The Commission's jurisdiction is to examine laws of the country for
the dynamic requirement of adjusting these according to the changed situation
so that the laws remain fair.
We submit to justice ABM Khairul Haque to consider
how to defend himself against the allegation that he took side uncalled for
politically and publicly by holding the press conference in respect of a
judgement. He was talking in the confidence of a very knowledgeable person but
he seemed completely unaware that criticising the judgement is outside his
authority. Even then he was boastfully asserting that he was talking with
authority of the Law Commission.
Justice Khairul Haque was not even conscious of
the special position of honour he deserves as a former Chief Justice. If he so
felt about his present colleagues that they were
immature he could have said it plainly. But he was too eager to show his
respect for the members of Parliament and said if members of the Parliament can
be called immature than the judges could also be regarded as immature. What a logic!
What a former Chief Justice! He was not a brilliant Chief Justice to call other
judges including the present Chief Justice immature. His judgement will speak
for its verbosity and contradictions.
He was unforgiving about the judges who gave
elaborate reasoning in support of their judgement unanimously. All the eminent
lawyers appeared as amici curiae including Dr. Kamal Hossain supported the
judgement. So the eminent lawyers are also immature.
It is most unfortunate for us that as former Chief
Justice Mr. Khairul Haque was not at all sensitive to the
attacks made against the judges of
the Supreme Court within and outside the Parliament. He should have known also
that the judges do not hold press conferences or issue press statements to
defend themselves. So being hurt and dishonoured, they had to make some
observations in the judgement to show they are not gutless to tolerate
everything. They also know weaknesses of those who criticise them. Even then
the judgement could be criticised without debasing the judges in public eye.
The politicians talk big, they have police but
they should find out how badly they have lost public faith. They are not ready to
face free election which manifests that they are not unaware of the degree of
unacceptance to the people.
Mr. justice Khairul Haque was not at all concerned
that the issue was protecting the independence of the judiciary. He will not be
able to cite an example of one-house Parliament enjoying the power of
impeachment of the judges. Nowhere the lower house, commonly known as the Parliament, owns the power of
impeachment of the judges.
If our Parliament`s claim is accepted, then
nothing remains of independence of the judiciary. The judges of the Supreme
Court will be in constant fear of the members of the Parliament who believe in
Mr. justice Khairul Haque should remember the
judgement he obtained by using his single casting vote for holding the general
election under the elected government fully in power instead of caretaker
government defying three other judges who differed and bypassing the advice of
all the amici curiae except one. They all found nothing wrong in the
election-time neutral caretaker government introduced in the Constitution
jointly by all parties in the Parliament.
Earlier a Special Bench of the High Court Division comprising three judges held the caretaker
government not in conflict with the Constitution. This judgement also did not
carry any weight with justice Khairul Haque.
He did not stop being disdainful of the judges for
judgement in impeachment of judges. He also attributed motive to the judges of
helping to bring martial law. In his view the judgement was pre-planned which
means no merit was in consideration. No former Chief Justice can say it so
callously as because the judgement contains arguments and submissions for
everyone to see.
As former Chief Justice he did not care, because
of his partisan enthusiasm, that one can criticise a judgement but cannot attribute ill motive or
collusiveness on the part of judges without committing contempt of court. So he
committed contempt of knowingly for political reasons.
In his hugely lengthy judgement for declaring the
caretaker government system for helping to hold free and fair election as
unconstitutional justice Khairul Haque`s sole justification was that an elected
government is the basic structure of the Constitution and election time
caretaker government not being elected is unconstitutional. This makes no sense
because election-time government is not a full-fledged government. That
government is to ensure free election.
He did not care to find out the practice of
parliamentary system in other countries. If he cared, he would have known that
nowhere under the parliamentary system including in India national election is
held without first dissolving the Parliament. He should have also known that
after the Parliament is gone there cannot exist an elected government.
Under parliamentary system everywhere the election
takes place under a caretaker government. The difference is the type of
caretaker government that finds acceptable as trustworthy.
That judgement of justice Mr Khairul Haque is
palpably wrong. Such a wrong judgement must go and should be gone one day too
soon. Election by depriving the people of their vote does not make anybody the
What kind of prior plan or ill motive had driven
Mr. justice Khairul Haque to give such an absurd judgement that has made free
election impossible in Bangladesh. It cannot be said that the present
Parliament was duly elected. Yet, he taunted about living under the republic of
judges. He was too anxious to please others but not the judges, the lawyers or
Mr. justice Khairul Haque`s judgement on caretaker government helped the sitting government to win
the election that was not to be won. Now the national election is captive to
the sitting government.
His judgement is being used to destroy democracy
and build autocracy. Thus it is clear Mr justice Khairul Haque`s judgement was
part of a blue-print for power grabbing. The people’s vote does not count in
the national election, Parliament has no opposition. The last act remains to be
done for autocracy to succeed is to make the Supreme Court subservient to
Justice Khairul Haque as former Chief Justice has
demonstrated indecently that he does not believe in people`s election and he
has no respect for the judges. He is not a pride for the judiciary and not
useful either for the independent Law Commission. Whether he will resign or
not, he has proved himself unfit to remain Chairman of the Law Commission.
It cannot be right to think the whole nation as
mad and unable to respond.