Justice Hasan's final judgement?
AL's demand mustn't be his sole consideration
Seldom have the future political events of a nation rested solely on the personal decision of a single man, former chief justice KM Hasan, as they do today. Leaders of movements, political parties, or those occupying powerful posts may, though rarely, face such situations. But a private citizen, leading neither any party nor a cause, hardly ever faces such critical moments as Justice Hasan does today.
Within hours of publication of this piece, he will have decided, one way or the other. It is our hope that neither personal pride nor any sense of fear or arm-twisting should guide his decision. Only the best course for the people of Bangladesh and safeguarding democracy should be his concern in deciding what most likely is to be his biggest and most complicated decision of his entire life.
To be or not to be the next caretaker chief is the question that Justice Hasan must answer within the next few hours. If he chooses to go ahead, he risks igniting violent political conflagration of a scale and magnitude unseen in the recent past. If, on the other hand, he declines to take the responsibility that the constitution obliges him to at the moment, he may be accused of having been cowed down by allegations of partisan allegiance, which to many, appear to be too old to be of any relevance today
The former chief justice may, perhaps, have never imagined being in a position like this. Why, he may very well ask, is he the focus of the nation? By nature judges are loners and by professional requirement they maintain a very low-profile social life, hardly ever mixing with ordinary people. So for him to be suddenly the focus of attention and especially in such a confrontational atmosphere is not only new but perhaps totally alien. To make perhaps the biggest understatement of the moment, our venerable former chief justice is certainly not in any position for anyone to be envious of. In fact we sympathise with his plight but must hasten to add, much of it is his own creation.
So what should he do? Should he bow to Awami League's ultimatum or should he stay the course. One path leads to succumbing to crude political arm-twisting and the other sees the nation get engulfed in violence. Some examples of which have already become obvious last night.
The very first question to consider is whether or not we accept the supremacy of the constitution in all matters pertaining to the running of our country. Adhering to the constitution becomes all the more crucial in the matter of the formation of our caretaker government. This point needs elaboration.
A caretaker government, because it lacks the mandate of the people (being an unelected body), needs two elements to legitimise its rule. First, it needs the full and unambiguous authority of the constitution, and second, a consensual acceptance of its rule by the major political parties and all sections of the population. In other words, a caretaker government must be above all legal questions and must enjoy support from all major sections of the society.
Unfortunately Justice KM Hasan faces questions on both counts. Regrettably, he lacks consensus support and also the unambiguous authority of the constitution.
The fact that Awami League, the biggest opposition party, questions his neutrality has been known to us ever since he became the choice of caretaker chief. However, by itself, the AL's claim did not cut much ice with us. Whatever partisan leanings there were back in the 80s, Justice Hasan's subsequent role as a high court judge and later as the chief justice have revealed him to be a man of sufficient integrity and professionalism to be acceptable to all.
Several lawyers and former judges that we have spoken to reinforce our view that he is sufficiently capable of carrying out his task as the chief of the caretaker government with fairness and competence. We also consider the controversy surrounding his latest visit to a mazar in Comilla to be highly exaggerated and blown out of proportion. Therefore, we repeat, by itself the argument of partisanship does not impress us.
However, it is the constitutional legitimacy of Justice Hasan's position, in other words the way he became the choice to be the caretaker chief that, in our view, greatly weakens his moral authority to be the next caretaker chief. This raises doubts in our mind as to whether he can deliver the task he will be entrusted with, namely to deliver a free and fair election, credible in the eyes of all.
If Justice Hasan were the choice through a natural constitutional process, then his moral authority would have been much stronger. The fact that he became the choice to be the caretaker chief because of a special constitutional amendment, in May 2004, extending the retirement age of judges from 65 to 67, naturally weakens his position.
The way BNP has governed during the last five years, and the way it used legal, and sometimes not so legal, means to strengthen its hold on power naturally raises suspicion as to the motive behind the extension of the retirement age of judges, for which there was not immediate and overwhelming need. (There was a far greater need to implement the Supreme Court judgement on separation of the judiciary from the executive, for which Khaleda Zia's government showed utter disregard).
In fact, concerned BNP leaders have admitted in private that this amendment was done on instructions from the top, with making Justice Hasan the caretaker chief in mind. When such be the background of Justice Hasan's position, how can he exert the moral authority to be the head of an interim arrangement?
Perhaps the most compelling argument that should govern his decision is whether he can deliver the sole task, namely a free and fair national election, for which he is slotted to be the caretaker chief. With the biggest opposition party, and its 13 (however small) allies, now joined by the dissident BNP group forming itself into the new Liberal Democratic Party, expressing no-confidence in Justice Hasan, how can he preside over a caretaker government that will hold the election?
The government he aspires to head must enjoy the highest possible credibility of being both non-partisan and neutral. Is that really possible under the circumstances? We put this question before a man who served as the country's highest judge, the chief justice of the Supreme Court.
We remember that he declined to be a judge of the appellate division in the case of Bangabandhu murder case because he felt he could not do justice as he was related to one of the accused. His finer senses as a judge forced him to take such a decision. That same finer sense should now compel him to think how he can perform a most crucial and complex task like holding elections when both his legitimacy and his acceptability have come under severe scrutiny.
Justice Hasan knows more than any of us, that justice not only has to be done, but has to be seen to be done. Meaning that the process must be as credible as the end result. For the process to be credible, the person in charge must enjoy the trust and confidence of all.
Justice Hasan must use all his wisdom, experience, and moral force to determine whether he enjoys that today. The former chief judge must give the ultimate judgement on himself, and we hope it will be as full of wisdom and sagacity, and concern for the nation, as his judgements exhibited when he was the chief justice.
Mahfuz Anam is Editor and Publisher, The Daily Star.