Is mere resignation enough for the aberration and transgression?
No one is above the law, and to prove this and to ensure the much-coveted rule of law, transparency, and accountability, it is essential to ensure proper justice in this very case, without any fear or favour
The nation was stunned and appalled by sensing something ominous brewing up in the judiciary under the aegis of the recently retired Chief Justice Obaidul Hasan, assigned by the past fascist government that orchestrated many misdeeds.
Reportedly, on Saturday, 10 August, he called for the full court meeting of the Appellate Division without the knowledge of the government, presumably with malice intention to declare the nascent interim government illegal.
Sensing this ploy, a group of alert students and aggrieved people gathered in the country's highest court premise and served him the ultimatum to resign forthwith. It acted like a tonic for the morally weak Chief Justice, who decided to comply and stepped down on the same day. Soon after, five other judges of the Appellate Division followed suit.
Thus all possibilities of vexatious rulings against the formation of the interim government were eliminated, relieving the nation of simmering tensions and concerns after intense drama. Alhamdulillah – all praises to Almighty Allah for saving our beloved Bangladesh from yet another possible debacle full of mischievous recipes for chaos, confusion, and conflicts.
Keep updated, follow The Business Standard's Google news channel
As we know, on 7 August, the new interim government took oath dispelling all doubts and misgivings. The same Chief Justice clarified and confirmed the validity and legality of its formation in the prevailing exceptional situation.
Surprisingly, just after 3 days, in connivance with other like-minded justices, he sought lacuna in the process and in the constitution, tried to exploit the gaps and grey areas to question the legality of the nascent government.
He attempted such a contemptible ploy, which many dismayed citizens termed a possible 'Judicial Coup', acting against the interests of the nation. The whole country was taken aback, as it was rather expected that as a responsible head of one of the three branches of our governance system, albeit the one that is supposed to uphold justice, transparency, and accountability, the Ex-Chief Justice would act as the standard bearer and set an example by serving the nation's purpose.
Disregarding people's expectations in the face of grave calamity, shamelessly he attempted to do just the opposite, only to prove his allegiance to the deposed despotic master as he used to do in the past.
It is difficult to believe that our Ex-Chief Justice ventured so out of ignorance, not knowing the broad provision of the doctrine of necessity, or that he considered that to be incongruent with our present dire situation. It is relevant to mention that the doctrine of necessity is the basis on which administrative authority can adopt extraordinary actions in the face of grave circumstances to restore law and order, preserve national unity and existence, and avoid death and destruction.
Such legal applications and actions are considered to be lawful even if such provisions are not found in established constitutions and seemingly contravene existing laws, norms, customs, or conventions. The maxim from which the doctrine emanates was first coined by the mediaeval British jurist Henry de Bracton in the 13th century, and similar justifications for this kind of extra-legal action were advanced by more recent legal authorities, including William Blackstone.
It is a priori that human knowledge is limited and that it's not possible to envisage all future situations and scenarios while writing constitutions, laws, rules regulations etc and /or amending them. So why is a broad blanket clause of this kind kept in most constitutions and strategic policy matters to cover and act in the face of unforeseen exceptional circumstances created by the 'act of Allah/God' necessitating the application of the concept of the 'doctrine of necessity' as the legal valid law?
Historically, it has been recognised, from time immemorial, that the change of government through revolution/mass movement does not need any apparent constitutional corollary or any ex facie constitutional framework or provision for the exit of the fascist/dictator inasmuch as the people's successful uprising/movement Ipso Facto becomes a mandate, at least for time being, for assuming power.
It is considered to be the collective will of the victorious masses and as such deemed to be de jure and constitutional. The French Revolution, the liberation of Bangladesh, our mass movement of 1990, the fall of Hitler, Mussolini, Marcos, Pinochet, Batista, Ayub Khan, Sheikh Mujib and Ershad and the taking over of power by the people at command in the aftermath are the best examples.
It is, indeed, difficult to believe that our learned Chief Justice was not aware of such atypical measures to address the unprecedented situation our country was facing. Instead of helping the country to get rid of the volatile, grisly-gory scenario by providing innovative legal solutions, as expected of the head of the judiciary, shockingly, he rather mysteriously tried to complicate and flare up the situation.
Hence, plausibly, his attempt was not at all omission, evidently, but rather commission with an ill motive having immense adverse ramifications.
Our anxious and baffled nation now eagerly wants to know the inside story, the facts, and the ulterior motives behind the vile move. Thus ascertain and apportion responsibility fairly and judiciously, and dispense justice condignly for future references, action, and prevention.
Indeed, no one is above the law, and to prove this and to ensure the much-coveted rule of law, transparency, and accountability, it is essential to ensure proper justice in this very case, without any fear or favour, and to set an example for others to refrain from such foul play in the days ahead.
Our victorious people would like to believe and witness that the much heralded and welcomed interim government demonstrates the highest standard of ethics, morality, fairness, equality, judiciousness, honesty, and courage in ensuring and dispensing justice, which is so crucial for the rule of law and good governance.
Major General Abul Kalam Mohammad Humayun Kabir, SUP, ndu, psc, is a retired General, He has also served as an Ambassador, Vice Chair of CPR of UN-HABITAT, and Vice Chancellor of a public university.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.
