How ex-CJ Khairul Haque armed Hasina to kill the caretaker govt system meant to ensure free, fair elections

The unceremonious exit of former chief justice ABM Khairul Haque from the Bangladesh Law Commission on Tuesday is a rude awakening for the judiciary.

It is a tale, rife with caution.

None of Haque's predecessors were lucky enough to continue as the chairman of the commission for a long time. 

Haque, on the other hand, enjoyed salary, allowance and other benefits, equivalent to those of the chief justice for more than a decade.

He was first appointed as the chairman of the commission in July 2013, only two years after his retirement as chief justice. 

Following the expiration of his three year tenure, as the service term for commission chairman, he was reappointed over and over again. 

Haque's last appointment was in October 2022. This time, however, he could not complete the full term. 

His luck abruptly ran out after the fall of Sheikh Hasina, who resigned as prime minister and fled the country on 5 August.

But why did a former chief justice, who was leading the Bangladesh Law Commission to review existing laws and draft proposals for reforms, face such an undignified exit?

He was one of the blessed few judges in the apex who climbed the ladder very fast.

He was appointed as an additional judge to the High Court Division in April 1998 and was confirmed as a regular judge of the same division in April 2000 during the first term of Sheikh Hasina government. 

When the BNP government came to power between 2001-2006, Lady Luck briefly turned away from Haque.

But the good days would return, as Hasina stormed to power in the December 2008 parliamentary election. 

Justice Haque was elevated to the Appellate Division in July 2009.

Caretaker govt: How Hasina killed a system that ensured free and fair elections

He did not have to wait in the wings for too long to become the chief justice of Bangladesh. 

In September of 2010, Hasina government appointed him as the head of the judiciary, superseding two senior judges – Justice MA Matin and Justice Shah Abu Nayeem Mominur Rahman.

His age, however, was not in his favour. By next May, he had reached the retirement age. 

But within this short window, Haque scripted one of the most important chapters of what was to come.

A week before his retirement, Justice Haque authored the lead verdict declaring the nonpartisan election time government "illegal", ignoring strong pleas by eminent jurists such as Dr Kamal Hossain, Barrister Rafique-ul Huq, Barrister M Amir-ul Islam, former attorney and general Mahmudul Islam, all of whom strongly argued for retaining the interim government system for the sake of country's nascent democracy.

Even three of the judges of the Appellate Division Justice Haque was leading did not consent to declaring the system "illegal", giving dissenting verdicts. Three other judges, however, agreed with him, ensuring a stalemate. 

Justice Haque, then, cast the decisive vote. The non-partisan caretaker government was declared "illegal."

His verdict gave Hasina the biggest political weapon to cling to power. The end of the caretaker system meant an end to the mechanism of checks and balances which ensured free and fair elections in 1991, 1996, 2001 and 2008. 

The three subsequent elections held in 2014, 2018 and January 2014 were neither fair nor free. 

The BNP and some other opposition parties boycotted the first two of the elections as they were held with Hasina in power during the polls. 

The 2014 election, the first one after the cancellation of the caretaker government, made an unprecedented record of uncontested elections. 

As many as 153 out of 300 MPs were elected unopposed without a single vote being cast in an extraordinary manoeuvring of the polls by Hasina's government and her party.

Keeping faith in Hasina's promise to make the election free and fair, the opposition parties joined the 2018 election. 

By then Hasina's party had already designed a different tactic: stuffing ballot boxes the night before the election in active cooperation with law enforcement agencies. Hence, the term "midnight election" was coined. 

Before her spectacular fall on 5 August, Hasina's government had effectively and brutally killed the election system.

And it was done with the help of Justice Haque. 

While Hasina's downfall meant an end to Justice Haque's contract, the legal pages of the country's history still bear many marks, some seemingly indelible.

Judge, jury and executioner

When he was a High Court judge, Justice Khairul Haque authored the lead verdict scrapping the fifth amendment to the constitution during the fag end of the BNP government. 

This was upheld by the Appellate Division in 2010 during the Hasina-led government.

The fifth amendment had indemnified martial law since 1975. It was passed during the BNP government in 1979, validating all activities and even changes to the constitution made through martial law proclamations during the first martial law regime. 

The HC verdict caught the then-BNP government off guard in 2005.

His verdicts declaring the fifth amendment to the constitution and the caretaker system "illegal" prompted the opposition BNP leaders to label him a "pro-Awami League" judge. 

They even alleged that Justice Haque declared the nonpartisan election time government "illegal" in line with Hasina's plan to stay in power during the general elections.

Even in his last month as chief justice, Haque authored another lead verdict upholding an HC verdict which declared the constitution's seventh amendment illegal. 

That amendment was brought to the constitution by the Gen Ershad government in 1986 validating his takeover of the state powers and all activities during his martial law regime.

In perhaps a show of allegiance, a division bench of the HC headed by Justice Haque ruled that it was Bangabandhu Sheikh Mujibur Rahman who had at first declared the independence of the republic on March 26, 1971.

While at the HC Division, Haque also upheld a lower court verdict that had sentenced 15 accused killers of Bangabandhu Sheikh Mujibur Rahman and his family members.

Another controversy, another constitutional crisis

Soon after Hasina retained power through the January 2014 parliamentary election, Justice Haque – who had secured the chairmanship of the law commission the previous year – came up with another controversial idea.

He recommended to the parliamentary standing committee on the law ministry to restore the parliament's powers to remove Supreme Court judges by scrapping the chief justice-led Supreme Judicial Council. 

"The parliament represents the people. So, all people, including judges, should be accountable to parliament," he argued in the proposal.

This sowed the seed of another constitutional crisis, which would later develop into a situation forcing Justice Sinha to resign as the chief justice.

On August 18, 2014, hours after the cabinet approved the proposal for constitutional amendment to restore the parliament's power, Justice Haque held a press briefing at his office and strongly defended the amendment.

Three years before, in April 2011, some of Haque's predecessors, including Justice Mostafa Kamal, Justice Mohammad Fazlul Karim and Justice Tafazzul Islam, joining the special parliamentary body on the constitutional amendment, had supported the SJC to remove SC judges on grounds of misconduct or incapacity. 

The parliament formed through a one-sided election in 2014 passed the 16th amendment empowering the House to remove apex court judges.

Legality of the amendment that also scrapped the Supreme Judicial Council was immediately challenged with the HC, which declared it unconstitutional in 2016.

The Hasina government launched a legal battle filing an appeal with the Appellate Division but lost again, as then chief justice SK Sinha led a full bench of the Appellate Division and upheld the HC verdict.

One of the main reasons for scrapping the 16th amendment was the parliament formed through one-sided election, having article 70 of the constitution chaining MPs, could not be trusted.    

Justice Sinha, who authored the lead verdict, made some critical observations about the sorry state of governance, such as arrogance of the government, rampant corruption etc.

Soon after the release of the full copy of the verdict in August, Justice Sinha faced the wrath of the Hasina government. 

Embroiled in a money laundering controversy, he was forced to resign as the chief justice and leave the country in November 2017.

Justice Haque, chairman of Bangladesh Law Commission, joined the bandwagon of the ruling AL to bash the apex court for scrapping the 16th amendment.

Tools of total control

During the first martial law regime after the 1975 political change, then chief justice Sayem did not hesitate to assume the office of president and chief martial law administrator on 6 November 1975. 

He relinquished the office of the chief martial law administrator on 29 November 1976 and office of the president on 21 April 1977 as General Zia gradually assumed both.

During the second martial law regime, General Ershad kept the constitution suspended and then chief justice and judges needed to take the oath of allegiance to the chief martial law administrator as he was the supreme authority of the country.

Restoration of democracy after the fall of Ershad in December 1990 generated hope for an independent judiciary. 

But none of the governments took necessary measures to separate the lower judiciary from the executive branch. 

They retained control over the lower judiciary by holding the powers for posting and promotion of the judges and magistrates. 

The lower judiciary has nakedly been abused by the partisan governments to suppress the opposition movements.

Numerous anecdotal stories indicate the partisan governments' efforts to keep control over the Supreme Court too. 

The appointments of the chief justices by superseding other senior judges and appointment of judges to the apex were among the tools the governments used to have control over the apex court.

Why did the governments try to control the apex court too? The answer is simple. The partisan government wants to avoid judicial scrutiny of its works.

But absence of an independent judiciary destroys the checks and balances of the state powers. 

Unchecked government emerges as authoritarian. 

This has happened in the case of Hasina government as Justice SK Sinha in the verdict scrapping 16^6th amendment observed: "the government becomes arrogant and uncontrolled in the absence of checks and balances and effective watchdog mechanisms. Human rights are at stake, corruption is rampant, parliament is dysfunctional, crores of people are deprived of basic healthcare and mismanagement in the administration is acute."

The latest unceremonious exit of chief justice Obaidul Hasan on 10 August is not only a call, but a warning.

He resigned in the face of student protests, accused of being an associate of the Hasina-led autocrat government.

After the 2014 election, Hasina's government appeared more authoritarian and moved to control the Supreme Court by empowering parliament to impeach the top court judges.

It is difficult for Justice Khairul Haque, who embraced an unceremonious exit from the law commission on Tuesday, to shrug off his responsibility for the rise of Hasina's authoritarian regime as it was he who led the cancellation of the non-partisan caretaker government system that ensured free and fair elections.

It was also he who paved the ground for Hasina to manipulate the elections to cling to the powers.