A national crisis with roots lying in court room

It has happened never before in Bangladesh.

Resignation of the chief justice and five other top judges in a day after the fall of an authoritarian regime in an uprising may sound like a drama on an OTT platform, narrating a classic story of how a democracy dies.

But it's actually an unpleasant story of present-day Bangladesh. Its judiciary is on the verge of collapse, along with other institutions such as the police. Such a situation did not prevail even after the fall of dictator Gen HM Ershad in 1990.   

The palpable question is, why were the chief justice and five other top court judges forced to resign after the fall of Hasina, who fled for India leaving the country in a dangerous constitutional vacuum?

Is it a manifestation of the excessive politicisation of the judiciary and the appointment of chief justice who leads the judiciary to protect, preserve and defend the constitution?   

The root of the crisis

The first seed of the current national crisis and lawlessness had been sown in the top court room. How?

In 2011, the then chief justice of Bangladesh, who was leading the seven-member bench of the Appellate Division of the Supreme Court, opened the hearing of a constitutional amendment case, the outcome of which would seal the political fate of Bangladesh.

The amendment introduced a nonpartisan election time government that allowed people to have free and fair elections in Bangladesh by organising four general elections in 1991, 1996, 2001 and 2008.

Eminent jurists were appointed as amicus curiae to help the top court reach a prudent decision. Top jurists such as Dr Kamal Hossain, former attorney general Mahmudul Islam, Barrister Rafiqul Haque, among others, strongly argued in favour of keeping the non-partisan election time government alive for the sake of free election, which was the life blood of the country's nascent democracy.

They argued there was no question of legality of interim government as it was an outcome of people's movement and people accepted the system, and most importantly, it addressed the long politically heated issue as to who would be in office during parliamentary elections.

They even warned that if the caretaker government system was abolished, the country would be plunged into a political crisis again, as opposition parties would not join polls under a partisan government, which had no record of holding a free and fair election since the independence of Bangladesh.

Three top judges of the bench agreed and strongly defended the constitutional amendment, arguing that the amendment did not suffer from any legality crisis. Three other judges did not agree. It was a tie.

The ball was in the court of the chief justice ABM Khairul Haque who would break the tie, determining if the provisions for non-partisan caretaker government were constitutional or unconstitutional.

He cast his decisive vote breaking the tie, declaring the constitutional provision for the caretaker government unconstitutional.

It should be mentioned that the High Court earlier declared the caretaker government system constitutional.

The government of Hasina, who once led violent street agitation and forced the then BNP-led government to amend the constitution in 1996 to introduce the non-partisan makeshift government, was given a big political weapon to stay in office during election and to manipulate the elections.

The rest, as they say, is history. The last three parliamentary elections held in 2014, 2018 and 2024 were neither fair nor free.  

Supersession of judges

Justice Khairul Haque, who was appointed chief justice in September 2010 by superseding two senior judges of the Appellate Division, delivered the verdict just a week before his tenure came to an end in May 2011.

Justice MA Matin and Justice Shah Abu Nayeem Mominur Rahman who were superseded had sought leave of absence for next few months. Later Justice Matin resigned.

On 11 May, the president appointed justice Md Muzammel Hossain, a senior Appellate Division judge but junior to Justice Nayeem, as the chief justice to succeed Justice Khairul Haque. Next day, Justice Nayeem resigned.

In January 2013, Justice Surendra Kumar Sinha, known as SK Sinha, the most senior judge of the Appellate Division, was appointed as the chief justice of the country, superseding none. But he would face the wrath from the government later.

The same year in July, Justice Khairul Haque was appointed by the government as chairman of Bangladesh Law Commission for three years. He would go on to enjoy salary, allowance and other benefits, equivalent to those of the chief justice. He has since been holding the office after being reappointed at least twice.  

After a year of his appointment as the chairman of the law commission, Justice Haque, in June 2014 came up with a controversial idea. He recommended to the parliamentary standing committee on the law ministry for restoring the parliament's powers to remove Supreme Court judges by scrapping the chief justice-led Supreme Judicial Council. "Parliament represents people. So, all people, including judges, should be accountable to parliament," he argued in the proposal.

When the senior most judge - Abdul Wahab Mia - was superseded in the appointment of new chief justice, then law minister Anisul Huq said it was the jurisdiction of the president to decide who would be appointed as the chief justice. But the problem is, the office of the presidency has long ago been politicised. After justice Shahabuddin Ahmed, every successive partisan government nominated people to the presidency that were blindly loyal to the party.

His proposal sowed the seed of another constitutional crisis which would later develop 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 proposed constitutional amendment.

SC put under the thumb of the government

Three years before, some of Haque's predecessors, including Justice Mustafa 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 16^th 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 High Court, 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 16^th 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. He was forced to resign as the chief justice and leave the country in November 2017.

After the HC first declared the amendment unconstitutional, the government in and outside of the parliament had launched a blistering attack on the judiciary.

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

Justice Sinha who was appointed without superseding any judge in the Appellate Division, on several occasions raised his voice for an effective separation of the judiciary, freeing it from the control of the government.

After his departure, a statement was made public alleging that justice Sinha faced "11 charges", which include money laundering, graft and moral turpitude.

The copy of the written allegations against justice Sinha were earlier handed over by then president Abdul Hamid to the other judges of the Appellate Division at Bangabhaban.

The office of the chief justice remained vacant until February 2018.  

Senior most judge of the Appellate Division Justice Md Abdul Wahhab Miah, performing functions of the chief justice for the preceding four months, was supposed to be appointed as chief justice.

But Justice Syed Mahmud Hossain, an Appellate Division judge who was a junior to Justice Wahhab Miah, was appointed the new chief justice.

Soon after, justice Wahab Mia, who among three judges strongly argued for keeping the non-partisan election alive for the sake of the country's democracy, resigned in protest of being superseded.

A judiciary loyal to the party

On the last day of office on 25 September last year Chief Justice Hasan Foez Siddique, who took over from justice Mahmud Hossain in December 2021, railed against a US visa policy which was imposed in May declaring that individuals responsible for undermining democratic process would be denied US visa.

Justice Foyez toed the line of then prime minister Sheikh Hasina and her party against the US and said they were not worried about the visa policy. "I personally have never visited America. I will never go in the future as well," Siddique said.

Around two weeks before Justice Siddiqui's tenure ended, Justice Obaidul Hasan was appointed as chief justice, who resigned on Saturday in the face of student protests, accused of being an associate of the Hasina-led autocrat government.

Justice Obaidul Hasan, who was confirmed as a High Court judge in 2011, had climbed to the top of the ladder very fast. He was elevated to the Appellate Division in 2020 superseding many judges in the High Court.

In 2022, he was chairman of the search committee that proposed the names for formation of the current Election Commission that held the 7 January stage-managed election.

His comments angered students who were protesting in the streets against a revival of quota in government jobs by a High Court order. During hearing of the appeal filed by the government on 4 July, then chief justice Obaidul Hasan questioned the motive of the movement. "Why have so many movements begun on the streets? Will you change the verdicts of the high court and the Supreme by exerting pressure through the movement?"

What needs to be done now

It is easy to say who will be the next chief justices in India and Pakistan in the next 10 years. That is because they strictly follow the seniority criteria.

But in Bangladesh, only in some cases is the seniority criteria followed. A record says 14 out of 25 chief justices were appointed superseding other senior most judges. Not only in the case of the appointment of the chief justice, the seniority criteria was frequently ignored in elevation of judges to the Appellate Division from the High Court as well.

The five other judges who were forced to resign on Saturday were also elevated to the Appellate Division superseding many of their colleagues in the High Court Division.

Judicial supersession - judicial appointment disregarding seniority - has become so pervasive in the last 15 years, that it surpassed previous records. It has become suicidal, damaging independence and integrity of the office of the chief justice and judiciary as well.

The chief justice is considered the symbol of justice and freedom, while independence of judiciary is considered as the hallmark of a democracy.  

The office of the chief justice has been undermined by judicial supersession, which encourages judges to toe the political stance of the party in power.

When the senior most judge - Abdul Wahab Mia - was superseded in the appointment of new chief justice, then law minister Anisul Huq said it was the jurisdiction of the president to decide who would be appointed as the chief justice.

But the problem is, the office of the presidency has long ago been politicised. After justice Shahabuddin Ahmed, every successive partisan government nominated people to the presidency that were blindly loyal to the party.

That's why, the only job of the president is to act on the advice of the prime minister without becoming the voice of people in need.

In absence of any specific law focusing on appointments, the government enjoys unfettered freedom to recruit anybody as judges to the High Court. The situation in the lower judiciary is also disheartening as it is largely controlled by the partisan government.

The responsibility of seeing that no functionary of the State oversteps the limit of his power, of necessity, is on the judiciary. But this crucial responsibility is compromised when the judiciary is controlled by the government through the appointment of chief justice and other judges and their promotions. Numerous instances say this happened in bangladesh. Powers excessively concentrated in the executive branch, led by the premier, and finally unchecked abuse of powers over the years has invited the current disaster.

Therefore, every state institution—from the presidency to judiciary to parliament to local government bodies - needs to be freed from the clutches of such politicisation. Time and again, political parties in power have undermined and destroyed our institutions for their narrow, parochial interests. It is time to put an end to this.