By S M Masum Billah
To imprison a judge for authoring a constitutional judgment is a violation so profound that it cuts at the heart of the rule of law. It is an act of democratic heresy, cloaked in legality but driven by vengeance. The recent arrest of Bangladesh’s former Chief Justice A.B.M. Khairul Haque by the current administration, led by Nobel laureate Muhammad Yunus, is not merely an assault on one man. It is the calculated humiliation of judicial independence.
Though formally charged in connection with the death of a passer-by during last year’s civic upheaval, what many now call the July Revolution, few are convinced by the state’s narrative. The charge is a sweeping one, loosely applied, and has already ensnared many public figures across ideological lines. But the real reason for Justice Haque’s incarceration is an open secret: he wrote the judgment that abolished the caretaker government system in Bangladesh. His pen, not his fist, is what the regime fears.
That judgment, delivered in 2011, remains one of the most divisive in the nation’s constitutional history. At its core lay the fate of the Thirteenth Amendment, which had inserted into the Constitution a temporary, non-partisan Caretaker Government (CTG) to oversee elections. What began as a mechanism to restore electoral integrity had, over time, become a parallel authority—unaccountable, increasingly politicized, and, in its final incarnation, dangerously aligned with military power.
Justice Haque did not act in haste. His opinion, sprawling and at times unwieldy, was the product of deep constitutional meditation. Written in Bengali, interspersed with English, and rich in philosophical allusions, it carried both the cadence of a jurist and the anguish of a citizen. He saw in the CTG not merely a procedural workaround, but a fundamental contradiction: an unelected regime operating at the heart of a republican democracy.
He asked difficult questions that the lawyers never adequately answered. How could a government not answerable to Parliament be squared with the democratic architecture laid down in Articles 7 and 11 of the Constitution? Who holds such a government accountable, and to whom do its decisions answer? Justice Haque warned that such a government could concentrate powers in the hands of a single unelected official—especially the President—who could suspend fundamental rights, appoint military chiefs, and promulgate ordinances, all without democratic oversight.
Bangladesh had lived through that nightmare already. In 2006, President Iajuddin Ahmed had installed himself as Chief Adviser, bypassing five constitutional alternatives, and ushered in two years of quasi-military rule. Under the pretext of neutrality, the nation was handed over to generals and technocrats. Elections were postponed, dissent crushed, and rights frozen. That this descent into authoritarianism occurred under the legal cloak of the CTG made the danger all the more apparent.
Justice Haque’s judgment declared the CTG unconstitutional but preserved past elections under its watch by invoking the doctrine of prospective overruling—a rare but principled judicial device. He left open the possibility of two further elections under the CTG, on certain conditions, but Parliament, emboldened by the verdict, moved swiftly to abolish the system altogether.
The backlash was swift and predictable. Detractors claimed that the judgment was politically slanted, that Haque had ignored the submissions of eminent amici curiae, and that he should never have penned such a far-reaching opinion after retirement. None of these criticisms withstand scrutiny. The amici curiae—some of whom were openly ambivalent or inconsistent—offered little clarity. Haque engaged with their arguments in detail, agreeing with some, questioning others. The claim that the judgment changed its tone between the short order and the full text is true only in form, not in substance. As for the timing of the opinion, it is neither uncommon nor improper for judges to finalize pending judgments after leaving office, provided the hearings were completed during tenure. What matters is the integrity of the reasoning, and on that score, Haque’s opinion stands tall.
Still, his style gave his opponents easy ammunition. The judgment was dense, replete with citations, meandering in structure. Justice Imman Ali, in dissent, gently mocked it as a “magnum opus,” wondering aloud whether villagers or even city-dwellers would be able to understand it. The remark was perhaps unkind but not wholly misplaced. The judgment demanded careful reading, and in a nation where constitutional literacy remains low and political propaganda runs high, few ever gave it that care.
Yet if one reads beyond the surface, the judgment is not merely a legal ruling—it is a philosophical meditation on the nature of democracy. Haque’s prose is steeped in constitutional emotion. He invokes Shakespeare’s Hamlet to ask whether one can stage a democratic play without its prince—without the people. He reminds us that democracy is not a ritual of ballot boxes but a relationship of trust and accountability. And he insists that sovereignty is not a political currency to be traded but a moral inheritance of the people.
His dissenters made spirited counterarguments. Justice M.A. Wahhab Miah turned to Churchill, evoking the image of the “little man with a pencil” at the ballot box, as the soul of democracy. But this romanticism faltered under closer scrutiny. Churchill may have celebrated the vote, but he also compared Indians to beasts. And the assumption that only a CTG can protect the vote is belied by the very constitutional traditions the framers sought to emulate. India, the UK, Canada—none of these common law democracies have institutionalized caretaker regimes. They relied instead on political culture, not constitutional outsourcing.
The CTG system had been used in three elections—1996, 2001, and 2008. None were accepted gracefully by the losing side. If anything, the system became a new theatre of manipulation. The BNP in 2004 had already amended the Constitution to extend judicial retirement ages, a move widely seen as a way to anoint their preferred candidate as Chief Adviser. When that failed in 2006, they turned to President Iajuddin, who, in defiance of constitutional sequence, appointed himself. That act, which ushered in two years of military-backed rule, was the beginning of the CTG’s end.
Justice Haque’s ruling marked its formal death. But its political burial had already occurred.
It is perhaps unsurprising that such a ruling would come to haunt him. In the toxic politics of Bangladesh, constitutional memory is short, and vendettas are long. Haque had earlier ruled that the Fifth Amendment—through which military rule had been legalized retrospectively—was unconstitutional. He had directly challenged the legacy of General Ziaur Rahman, the founder of the BNP. He had declared that it was Sheikh Mujibur Rahman—not Zia—who proclaimed Bangladesh’s independence. Each of these judgments struck a nerve in the BNP’s historical narrative.
And now, with a new regime in power—nominally reformist, but increasingly repressive, serving mainly the cause of extremist politics, Haque has become a convenient scapegoat. The formal charge against him may mention a casualty during a street protest. But no one seriously believes that is why he has been jailed. His imprisonment is a colourable exercise of power: an act dressed in legal language but animated by political revenge.
This is not merely an injustice against one man. It is a warning to all who interpret the Constitution with fidelity and courage. If judges are punished for their opinions, the Constitution ceases to be a living document and becomes a weapon of convenience. Justice Haque’s judgment may be imperfect, even controversial. But it was not criminal.
The real crime is to make a man’s mind a matter of prosecution.
Writer: S M Masum Billah, Visiting Professor, IdPD, University of Cote D’Azur, France
Email: billah002@gmail.com
