Leaders need a change in mindset
Barrister Rafique-ul Huq speaks to PROBE about constitutional reforms, the prevailing political scenario and more...
Interviewed by ANWAR PARVEZ HALIM
With the abolition of some parts of the Fifth Amendment, according to Article 38 of the 1972 Constitution, religion-based politics is banned in the country. This isn't quite clear to the general public. Could you explain?
What you are talking about is theory. The High Court and Appellate Division have a lot of bindings. They have called for the Constitution to be made afresh and a committee has been formed for the purpose. They will draw up the 2010 Constitution. Some ask how the committee will ignore the verdict of the court. Actually, the parliament is the highest authority or body. The committee will review the entire Constitution. But yes, theoretically, the abolition of the Fifth Amendment has revived the issue of religion-based politics. In that manner, it has revived the Fourth Amendment too. But has this been implemented in that sense? No, it hasn't.
Can this matter be politicized? The government says the Election Commission is to take the decision regarding religion-based politics. If neither the Election Commission nor the government takes any decision in this regard, will it fall once again on the shoulders of the court?
If anyone challenges the matter, it can go to court. Doesn't Jamaat know about the issue of religion–based politics? Under pressure of the Election Commission they made amendments. They have brought about amendments to the party constitution.
How realistic is the demand to revert to the 1972 Constitution?
This is not possible. How can you go back to 1972? The First Amendment dealt with the issue of war crimes. Is it possible to return to that point now?
Again, there are demands to remove the phrase "Bismillahir Rahmanir Rahim" from the Constitution. Can that be done?
No, the judgement of Justice Khairul Haque has saved that. Even Hasina has said Bismillah and the state religion Islam will remain.
Then again, they are retaining secularism. Isn't that contradictory?
I don't think so because Islam was made state religion through the Constitution so it is not really contradictory. When they were doing this I had rushed to Moudud Ahmed and told him that they were going to create chaos. I advised him and he added to Islam being a state religion, the phrase that 'other religions may also be practiced in peace and harmony in the republic.'
So you have a contribution here too?
No, no, I wasn't a parliament member. I just told Moudud, add these words to it, Ershad will never know. I took these words from the Malaysian Constitution. Islam is the state religion in Malaysia, but Muslims, Christian and Hindus all celebrate Eid, Christmas and Puja together there.
Don't followers of other religions feel insecure because of this?
If Muslims are not insecure in India, why should Hindus feel insecure here? In India before any programme they light their mangal pradip (little oil lamps), chant nomo nomo and recite from the Geeta. I have seen that in the SAARC programmes too. I think we, and Malaysia, are the most secular in the region. Do you see any conflict between Hindus and Muslims in Bangladesh?
It is being said that the annulment of the Seventh Amendment now allows for Ershad to be tried on grounds of unlawful takeover of state power.
No, why should Ershad be tried? The parliament ratified the Seventh Amendment so how can Ershad be blamed? The judges may talk big now, but they took oath under martial law at the time. If they talk so much now, they are the ones then that should be tried. Actually there is no connection between the abolition of the Seventh Amendment and Ershad being tried or sentenced. However, if anyone was harmed during the time of martial law, they can file a case and be compensated. After all, the martial law was unlawful.
You had mentioned that the government may do away with the caretaker government system. How justified would that be?
In 2008 I myself had maintained that the caretaker government system should go. If a government can run a country for five years, why can't it conduct an election? But first one has to ensure a conducive environment to bring that about. What did we observe in the Bhola-3 by-elections? Before this, had the instance of "Magura" not taken place, we wouldn't have needed the caretaker system. This system doesn't exist anywhere else. We had introduced that for two terms at the time, but it is continuing till today. Anyway, in the caretaker system if cancelled right now, there is likely to be a crisis. BNP will refuse to participate in the election.
I am personally against the caretaker system, but it would create a serious crisis if it were abolished under the prevailing circumstances. There is no doubt about that. Had there been an efficient, neutral and capable Election Commission in place, there would be no need for a caretaker government. But where will we get such an Election Commission? Another personal opinion of mine is that the national elections should not be held in a single day.
You were the lawyer in the Amar Desh and Mahmudur Rahman case. What is your opinion about the verdict?
If I were to tell the truth, I might be sent to jail too. The truth is that the verdict is absolutely unlawful. This verdict has set an extremely harmful precedence for the media in Bangladesh. The sentence has been one lakh taka fine and a one year jail sentence. Nowhere in Bangladesh or in this region has anyone been sentenced to one year's imprisonment for such a reason. The highest fine could have been 200 taka, maximum. I don't know under which law they have imposed this fine.
Is there scope for a reconsideration of the verdict?
Of course there is. If they want to reconsider it, they easily can.
In recent times there has been controversy over judges and the image of the court is suffering. Why is this happening?
All judges are being politically appointed now. On September 30 the new Chef Justice will be appointed. The norm is that the next man in seniority will be made Chief Justice. Now I hear there are all sorts of deliberations going on about this too.
I hear Justice Khairul Haque may be made Chief Justice. Perhaps that is why he passed some extreme verdicts during the term of this government. If he is made Chief Justice, he will be superseding Justice Naimuddin. Justice Naimuddin is the brother of BNP leader Brigadier Hannan Shah and so probably he won't be made Chief Justice. Yet this Justice Naim was the junior of Awami League's Fakir Shahabuddin and would live in his house. He was never involved in politics. But because his brother is in BNP, he won't be given the post.
After 1/11 I had repeatedly, time and again, stated that having a chamber judge inevitably means a stay decision. In the cases of both Hasina and Khaleda, there was a chamber judge who passed a stay order. If I speak up about this now, I will be sent to the jail in Nazimuddin Road too.
You have seen a lot in your lifetime. From experience can you say where this country's politics is heading?
I was a citizen of British India. I was a citizen of the Indian Republic, I was a citizen of Pakistan and now I am a citizen of Bangladesh. I have seen four countries and I believe nothing can be above the country. However, unfortunately, the two leaders of the two parties think their respective parties are all-in-all. One thinks her father has made Bangladesh, the other thinks her husband has. In other words, they own the country. But the country belongs to all of us; nothing can be greater than the country. When they had a meeting on the Kashmir issue in India, all the parties joined in. No one boycotted the meeting. But today if Hasina calls for a meeting, Khaleda won't attend.
How will you evaluate the "minus two" formula?
Many people supported the "minus two" formula at the time. The situation had reached a point when everyone was thinking that it would be a relief to get these two out of the way. But then the initiators of the initiative themselves got embroiled in corruption. That is why I say the caretaker concept is wrong. But we have reached a point where you can't have an election without it. That is even worse.
With the cancellation of the Seventh Amendment people ask if that means that there will no longer be martial law. My reply is, does a tsunami or an earthquake inform us before they come? Martial law isn't going to take anyone's permission to come.
The fact of the matter is that the two leaders need a change in mindset. This is imperative. Things can't carry on like this. Our democracy has reached such a low level that we have no alternative but to go up. We really need to generator to start things up.
Many lawyers have joined politics, why haven't you? Haven't you received any offers, or have you deliberately stayed away?
I am not in politics and everyone knows I have no political involvement whatsoever. That is why they don't come to me with such offers. There was a time when I was a leader of the Youth Congress in West Bengal. My boss at the time was Indira Gandhi. She was the President of the Youth Congress. You might wonder that I was in politics with Indira Gandhi, but am not involved in politics in Bangladesh!
In the future if you get any offer, not in politics, but for an important state position?
I will not accept any political offer ever. I am not involved in politics. I would rather remain involved in social activities.
You have conducted the cases of Ershad, Khaleda and Hasina. What is that all about? People talk a lot about this.
Once Ershad asked me, "Why have you taken up the case of these two ladies? They are thieves!" I replied, "What can I do, sir, I have honed my skills by conducting the case of the biggest thief of them all! Now I can't avoid them."
I have never taken any money from them; I have conducted their cases from an ethical standpoint. Only while conducting Hasina's case did Tapash present me with a gown.
Profile of Barrister Rafique-ul Huq
On February 28 Barrister Rafique-ul Huq celebrated the Golden Jubilee of his legal practice. He has emerged as one of the most prominent and respected lawyers of the country.
Born in Calcutta in 1935, Barrister Rafique-ul Huq obtained his Law Degree in 1960 and joined the Calcutta High Court in February that year. He subsequently went to the UK where he became a Barrister and later joined the Dhaka High Court in 1962.
An expert in corporate law, Barrister Rafique-ul Huq has not remained restricted to this area of the law alone, but has proved his mettle in all areas of the legal domain. He has set high standards by his multi-dimensional legal practice over the last 50 years. He was quick to question the legality of the army-backed caretaker government between January 2007 and 2008 and fought successfully for the return to democracy.
Beneath the rather daunting exterior as a hard-nosed lawyer, is an affable, witty and kind hearted man. He has a charming and warm personality.
Barrister Huq has significant contribution to BIRDEM, Ahsania Mission Cancer Hospital, Shishu Hospital and other causes. He is the Chairperson of Ad-din Basundhara Women's Medical College, Ad-din Foundation, Basundhara Ad-din Hospital, Ad-din Rafiqul Huq Hospital and Suborna-Ibrahim Hospital.
Barrister Rafique-ul Huq's wife Farida Huq is a physician and his son Fahim-ul Huq is a Barrister.
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