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11th-Aug-2017

Justice Khairul has lost independence to remain Chairman of Law Commission

By MAINUL HOSEIN

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 highly derogatory  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 absolute power.


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 people’s representative.


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 the people.


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 Parliament.


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.