Judges must uphold law: Justice ABM Khairul Haque

During his tenure as chief justice, ABM Khairul Haque oversaw a number of landmark cases, including the decision that declared the caretaker government system illegal and unconstitutional. Last July, Haque was reappointed as the chairman of the Law Commission for a three-year term.

The Bangladesh Legal Times, the nation's first English law magazine, caught up with the legal luminary to discuss a variety of topics including the role of the judiciary, the challenges faced by the law commission, his efforts to make legal documents available in Bangla and his influential career.

An edited version of the interview is printed below:

With your vast knowledge and experience as the former chief justice of Bangladesh and now as the chairman of the Law Commission do you think the commission is able to play its proper role with regard to law reforms in the country?

ABM Khairul Haque: Reforming the laws of a country has a vast perspective and is a continuing process. The Law Commission is one of the institutions engaged in this grand process.

The Law Commission in Bangladesh is comparatively a new institution, established in 1996 by an Act of Parliament.

Although, the Law Commission is charged with many duties and functions under the law, because of various handicaps, the Law Commission has suffered over the years and is unable to function properly and effectively. Some of its problems are:

1. Inadequate accommodation
2. Lack of research personnel/officers
3. Proper library facilities
4. Training on drafting

However, with the help of the government most of the problems are being addressed.

The Hon'ble Minister, Ministry of Law, has already agreed in principle for upward construction of the present building and the Law Commission would be housed in two of the top floors of Judicial Administration Training Institute Complex. This will hopefully solve the acute accommodation problem of the Law Commission.

In addition, the revised Organogram of the Law Commission had already been approved by the Ministry of Law and is now being examined by the Ministry of Public Administration. We only hope that the matter will be straightened out soon.

Hopefully, the condition of the Law Commission will be much improved in the coming years and it will be able to play its role effectively and meaningfully.

As the chairman of the Law Commission what aspects of and prospects for the commission do you have? Would you tell us about the functioning of the Law Commission and some of its significant success so far achieved?

The Law Commission of Bangladesh, like any Law Commission of the other countries, is engaged in modification and amendment of some of the existing laws, and where it is required, making of the draft bills, translation of the laws into Bangla are the main functions of the Law Commission.

The Law Commission definitely has got a great future but at the moment, because of the above mentioned problems, of necessity, we are constrained to move at a slower pace, on a priority basis, but we shall be able to over-come our difficulties hopefully within a couple of years.

There is a long list of concept papers, prepared by the Law Commission, available in our website (www.lc.gov.bd). Besides, quite a number of draft bills have been prepared by us in the last few years, some of them are as follows:

1. A number of reports on back-log of cases forwarded to the Standing Committee on Ministry of Law, Justice and Parliamentary Affairs of the National Parliament
2. The Territorial Waters Maritime Zone (Amendment) Bill
3. The State Acquisition and Tenancy (Amendment) Bill
4. International Treaty Implementation Bill
5. Anti-Discrimination Bill
6. Mental Health Bill
7. Protection of History of Liberation War Bill
8. Bangladesh Press Council (Amendment) Bill
9. Health Care Service Bill

Besides, drafting regarding the following bills are underway:

1. Law on Trust
2. Right to Food
3. Family Code
4. Evidence Act
5. Preparation of a Law Dictionary

During your tenure as Justice of both Divisions of the Supreme Court you handed down a number of landmark judgments including that of declaring Fifth Amendment of the Constitution as ultra vires. Your milestone verdict convicted the killers of the Father of the Nation, Bangabandhu Sheikh Mujibur Rahman. When you recall those moments of your life, what do you think played most significant part?

With unbounded humility, I express my utmost gratitude to my Creator who always provided me with strength and courage, sometimes in the face of very hostile situations, to write my opinions, strictly in accordance with law, without any fear or favour. I always tried to do my best and play my role as a judge, the future can only tell whether my best was good enough. I leave this to the people of Bangladesh and the future generations of lawyers, judges and peoples at large who are the owners of Bangladesh along with all its institutions including the Supreme Court and also even the Law Commission.

You played a significant role in the separation of the judiciary. As former Chief Justice of Bangladesh, you also took some reform measures. Do you have any suggestion as to the roles of the judiciary and the executive in that light?

This is a very important question, especially in the present situation/perspective in Bangladesh.

The legal systems in this sub-continent, are based on Common Law principles in England. Those were being developed mostly during and since the reign of King Henry II (ruled, 1154-1189). During that time, like any other Kingdom in the world, all the powers of the State or Government were fused in the King. He was the chief executive, source of all powers. The army was the King's army, the Courts were the King's Court, and he was the fountain of justice. The parliament was in its embryonic state, carries out predominantly the wishes of the Sovereign. Besides, the King ruled, mostly by his prerogative powers and also by issuing proclamations and Ordinances.

The Magna Carta (1215), or the great charter, ushered  the concept of modern governance which was followed by the petition of rights of 1354 and 1628, culminated in the glorious revolution of 1688 and the consequent Bill of Rights of 1689. The whole of the 17th century saw a triangular fight between the King, the Parliament and the Judiciary. While the Bill of Rights ensured the supremacy of the King in Parliament, the Act of Settlement guaranteed the independence of judiciary. The last impediment that with the death of the Sovereign, the Judges were also deemed retired, was also removed around 1760.

The writings and philosophy of Thomas Hobbes, John Locke, John Stuart Mill, David Hume, Immanuel Kant, Arthur Schopenhauer, Friedrich Nietzsche, Voltaire, Diderot, Thomas Paine, Jean-Jacques Rousseau, Abbe de Sieyes, Maximillian Robespierre, revolutionized the thoughts and minds of the people of the both sides of the Atlantic.

During that period, in 1748, Baron Charles Louis de Montesquieu, in his book, Del Esprit des Lois, wrote 'All would be lost if the same man or the same ruling body, whether of nobles or of the people, were to exercise these three powers, that of law-making, that of executing the public resolutions, and that of judging crimes and civil causes.' In this manner, he reincarnated and propounded the principle of the separation of powers originally advocated by Aristotle 2300 years ago.

This principle was put to test, possibly for the first time in 1787 when the Republican government in the United State of America emerged with a written Constitution predominantly based on the principle of separation of powers.

The history of the United States of more than two hundred years, with its ups and downs, shows that it worked well there.

Our Constitution also provides the separation of powers in broad terms, with specific provision that the Supreme Court and the judiciary as a whole is independent and separate from the other two great organs of the State, namely, the Parliament and the Executive.

Article 94(4) spelt out that the judges of the Supreme Court are independent in the exercise of their judicial functions, so also the judges of the subordinate Courts under Article 116A of the Constitution.

What is the role of the judiciary in an independent democratic country?

Under the British, the Indian sub-continent was a colony. The judiciary used to be run though under the common law principles of England but under Lord Macaulay, the laws were codified over a long period of nearly 50 years. The High Courts were established under the letters patent, granted by the King of England. At the tail end of the British Rule, the Government of India Act 1935, not only allowed restricted home rule but certain prerogative powers were also allowed to be exercised by the High Courts in India, specially the powers of certiorari.

During the British rule, everybody in India were under the British yoke but although there was no Constitutional guarantee for the Judges, still they were independent because they were independent in their hearts. There no government could enter.

As a matter of fact, if the spirit of the law, sense of neutrality, sense of justice, spirit of the rule of law dies in one's heart, no Constitution, no rule can save those high ideals. The Hon'ble Judges, be they in the subordinate judiciary or in the High Courts in British India, held high their judicial values and fairness in dispensing justice in their hearts, as such, they were Judges in the truest sense of the term, even in a colony.

After partition and independence in 1947, although India adopted its Constitution in late 1949 and became a Republic in January 1950, the scenario was otherwise in Pakistan.

Palace clique continued unabated in Pakistan and democracy never got a chance to play its role. There were no doubt a high class of quality judges but instead of upholding the Rule of Law, they were obsessed with the idea of 'Saving Pakistan' just like the Judges in Germany during 1930s, who were obsessed with the idea of bringing Aryan supremacy. Justice Munir, the Chief Justice of Pakistan during the period from 1954 and onwards, was an excellent judge and a great jurist but his handling of the cases on Constitutional problems were totally motivated. Instead of using his wisdom and legal excellence in a neutral way, upholding the Rule of Law, gave his judgments in a partisan manner, to save the President of Pakistan and the establishment. In Dosso he misinterpreted Grand norm theory propounded by Prof Kelson, violated the Constitution and upheld the Martial Law Proclamations and put the last nail in the coffin of Democracy in Pakistan for many, many years to come.

Bangabandhu declared independence on 26th March and, with three million dead, Bangladesh was liberated on 16th December 1972. Constitution was adopted on 16th December 1972. Bangabandhu came to the premises of the High Court on 18th December and justifiably emphasized the need for upholding the Rule of Law which ought to have been the basis for our judicial pronouncements even on the face of Constitutional crisis. But unfortunately our judges of the Apex Court in a number of decisions not only upheld the Martial Law Proclamations and Orders as supra constitutional law but also held our sacred Constitution to be subordinate and subservient to the Martial Law Proclamations, in clear violation of the Constitution which wastantamount to sedition on the part of the learned judges of our Apex court.

More than 25 years later, the Supreme Court declared both the Fifth and Seventh Amendment of the Constitution as ultra vires to the Constitution and emphatically declared that Martial Law is no law and there is no authority as the Martial authority.

In this back-drop we have to consider the role of a judge in a democracy. In this respect, the Constitution itself is the best guide.

Long ago, in 1787, the peoples of the 13 colonies of the United States of America adopted their Constitution, first of its kind in the modern world. Article VI of the Constitution emphatically declared:

'This Constitution …shall be the supreme law of the land; and the Judges in every State shall be bound thereby;anything in the Constitution or Laws of any State to the contrary notwithstanding.'

In this context, one must remember that the Constitution is not only the supreme law of the land, it is also the supreme political instrument since all institutions of the Republic including the Supreme Court, owe its existence to this great Charter.

Nowhere in the Constitution of the United States it is written that there would be a separation of powers but Chief Justice John Marshall in his ground breaking judgment in Marbury Vs Madison (1803),on examining the provisions of the Constitution specially, Art.I,II and III which separately dealt respectively with the Congress(the Legislature),The  President (The Executive) and the Supreme Court ( The Judiciary), held that the Constitution provides for the principle of separation of powers, since all three great divisions of the Republic were placed in three different and distinct Articles, one after the other.

Since then, the Judges of the Supreme Court religiously adhere to the principle of the separation of powers and keep themselves within the bounds of the Constitution and the laws made there under.

The beauty of the separation of the powers is that no branch of the republic woulddent into the activities of the other branch. This was ensured after a struggle for hundreds ofyears. We may recall that, long ago, the King was the fountain of justice, all powers of the republic was fused in the sovereign. With the advent of the civilization, the separation of powers was ensured for good governance not only for the executive branch but also equally true for judicial branch.

In Bangladesh, Article 7 of our Constitution emphatically declares the sovereignty of the people. The Constitution is the supreme law of the land and if any other law is inconsistent with the Constitution that other law shall to that extent is void, since this is the expression of the will of the people of Bangladesh, who are the owners of the Bangladesh along with all its institutions and with whom all powers of the Republic resides.

We all must remember that it is the job of the government to run the State, the Court would ensure that in doing so, no law is violated and the government is exercising its executive power in accordance with law. It is for the Parliament to take the policy decisions and also to take the decision which law has to be enacted or not. The Court cannot and should not meddle in these matters.

The judges of the United Kingdom similarly adhered to the same principle. At one time, long ago the Judges, similar to other royal officials, were servants to the King.

After the glorious revolution, the Bill of Rights (1689), made all the difference. The King in Parliament is omnipotent. The law enacted by the King in Parliament is binding on everybody in the United Kingdom. The Courts in the United Kingdom upheld the said very law but find the true spirits therein in the Act of Parliament. The Courts in England including the Supreme Court do not question the wisdom or the necessity of any Act of Parliament, that is for the members of the Parliament to decide, who are the representatives of the people, certainly not to be decided by the unelected Judges. This is the age-old principle strictly followed by the judiciary in the United Kingdom since 1689. The latest judgment passed by the Supreme Court of the United Kingdom in Brexit Case (2016) held:

'… … … this case has nothing to do with issues such as the wisdom of the decisions to withdraw from the European Union, the terms of withdrawal, the timetable or arrangements for withdrawal, or the detail of any future relationship with the European Union. Those are all political issues which are matters for ministers and Parliament to resolve. They are not issues which are appropriate for resolution by judges, whose duty is to decide issues of law which are brought … … …'

It is further held that 'Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers.'

This is the correct role of a judge in a democracy.

Besides, the Judges must uphold the Rule of Law. Although the term 'Rule of Law' was first coined by Prof William E. Hearne in his book 'Government of England' (1868) which was acknowledge by Prof AV Dicey in his book ' The Law of the Constitution' (1885) but the legal historians discovered that it was ingrained in the glorious 'Magna Carta' (1215) followed by the 'Petition of Rights' (1354), the 'Petition of Rights' (1628) and finally in the 'Bill of Rights' (1689).

The Rule of Law envisages, firstly, the supremacy of law, secondly, equality before the law, and thirdly, upholding the rights of the people.

When a pauper and a billionaire, an illiterate and a top intellectual, an atheist and a high priest, a helpless ordinary person and a most powerful in the State, are all being treated on the same level before a Court of law, we recognize that there is rule of law in the country.

In a democracy, everybody is bound by the same law, even the law-makers, the enforcers, the adjudicators are all bound, in the same manner.

In a democracy, the judges are not lawmakers, they are bound to enforce the law as they find them. If the law is inadequate to dispense justice, the Parliament would take care of it, not the Judges. They are not reformers, they are to dispense justice, in accordance with law. According to Justice Felix Frankfurter, Judges are not qadis under the tree, dispensing justice according to consideration of individual expediency.

According to Justice Cordozo, 'The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness'.

They are judges, appointed under the Constitution, to defend and uphold the Constitution and the laws made thereunder.

In a democracy, the judges are required to interpret the original text of the Constitution and the laws made thereunder. If the situation changes, a Judge is not expected to twist the original text but wait for the legislators to rise to the occasion if it is found so necessary to them.

In a democracy, the judges must not strive for their personal aggrandizement but to dispense justice, strictly in accordance with law, if and when approached by an aggrieved person. They may even be activist for the sake of fairness and for dispensing justice but strictly within the bounds of the existing laws, otherwise, they will become adventurists, not judges.

In a democracy, the judges must ingrain in their hearts that like other functionaries of the Republic, they are also servants of the people and along with others, they exist because the people want them to exist, not the other way around.

What are the problems of our judiciary and how we can get out of it?

The problems are so vast and multifarious that a book can be written on those problems.

Of necessity, I shall be brief.

The problems in the Sub-ordinate judiciary and the Superior judiciary are different.

With nearly three million pending cases, the Subordinate judiciary with a poor number of 1600 judges, is on the brink of collapse. They are doing their best and their rate of disposal is better than any other country in the world but their number is so poor and their load is so much that they are unable to cope. For the sake of ensuring justice, they should not be pushed any further but the number of Judges should be raised to almost 5000 with all comparable facilities, such as, availability of steno typists, supporting staff, with computers and other gadgets. Housing and transport facilities are also required.

The appointment procedure of the Judges in the Subordinate Courts are satisfactory but since in order to maintain the standard it will take some time to recruit adequate number of judges. As such, some of the efficient and honest Judges can be recruited from amongst the retired Judges as a stop gap measure for the time being.

So far the higher judiciary is concerned, the problems are somewhat different.

The statistics since 2000 surprisingly show that with the increased number of Judges, the number of pending cases piled up even higher.

In the United Kingdom, by the Act of 2005, the appointment procedure was completely changed. Instead of tapping on the shoulder of a Queen's Counsel by the Lord Chancellor, for appointment as Judges in the High Court, now a completely different procedures for appointment of Judges have been adopted starting with an advertisement inviting applications for such appointment followed by an interview by a committee where the Lord Chief Justice is a member. The Chairman of the first Committee was Baroness UshaPrashar and the present Chairman is Lord Kakkar. None of them are lawyers. When asked why a non-lawyer was made chairman of the Committee for appointment of Judges, the reply was that the Committee was deliberately made people oriented.

In Bangladesh also, the learned Judges of the superior Courts should also be brought within the pale of accountability as is now prevalent all over the advanced countries. Otherwise, we would see re-enactments of Jarndyce vs Jarndyce.

Sir, as Justice of the Supreme Court, you took the difficult task of passing judgments completely in Bangla. Do you see any prospect of Bangla being used effectively in the Supreme Court?

Initially it was difficult no doubt, but it is possible if the learned Judge wants to do it. Earlier, the High Court Rules provided that only English was the language of the High Court, but the High Court Rules of 2012 now allows Bangla for all purposes of the High Court Division. What is required is the will, the desire to write judgments in Bangla, then everything would necessarily follow.

You also had a profound career as a member of the bar. What would be your advice to the new lawyers who are coming to this profession?

Work hard. Read all the time and burn the midnight lamp. Even if you do not have any case of your own, sit in the Court room and watch how a learned advocate makes out his case.

Learn how to draft a petition and try to improve every day. It is a slow monotonous process but since there is no short-cut to success, it is better to start now.

Remember, there is no royal road to success, it is a hard and tenuous effort but one can overcome it if he works diligently.

In this profession, we do not need geniuses but hard working people.

Do not run after money, work for the helpless litigant people. Someday money will be running after you.

In fine, have faith on the almighty God and have confidence on your goodself.