This blog is part of a series highlighting local perspectives about ICC judicial nominations, including the candidate’s qualifications and the process that led to their nomination. By hosting this series, the Open Society Justice Initiative (OSJI) seeks to provide a platform for local actors with knowledge of that background to inform a wider international audience. OSJI does not necessarily endorse the views expressed. OSJI has offered an opportunity to civil society groups from all nominating states to express their views.
Bangladesh, as a party to the Rome Statute of the International Criminal Court (ICC), initially nominated Mr. A B M Khairul Haque for the role of a judge at the ICC. The nomination triggered criticisms from rights groups who publicly challenged the candidate’s credibility and eligibility. Following active opposition from civil society, Bangladeshi government withdrew Haque’s nomination on 29 July 2020. The Assembly of State Parties (ASP) confirmed the withdrawal of the nomination on 4 August. Civil society played a notable role in opposing Mr. Haque’s nomination.
Haque’s experience and positions on key points of law fail to meet the Rome Statute’s standards
Mr. Haque, the 19th Chief Justice of Bangladesh, retired on 17 May 2011. He had previously served as a Judge of the Appellate Division and of the High Court Division since his appointment as an Additional Judge to the High Court Division of the Supreme Court of Bangladesh in April 1998. He also worked as a corporate lawyer, employed by banks and corporations. Mr. Haque is currently the incumbent and longest serving Chairman of the Law Commission of Bangladesh. He was 76 years old at the time of his nomination for the position of an ICC Judge.
Mr. Haque’s five decades-long career lacks engagement with matters related to international crimes. His expertise, as a lawyer, is on matters related to commercial, contract and fiscal law.
Mr. Haque’s performance at the Supreme Court indicates a pro-death penalty approach. As the High Court Division Judge, he confirmed the death penalty for 15 defendants in the Sheikh Mujib murder case. Death penalty is not endorsed by the Rome Statute or by other international human rights instruments.
Mr. Haque stood against judicial independence while serving as Chairman of the Law Commission in 2017. He criticized the Supreme Court Judges for declaring Bangladesh’s 16th Amendment to the Constitution unconstitutional. Bangladesh’s 16th amendment empowered the Parliament to remove judges from office, thus giving way for extreme form of politicization of the removals of judges through an impeachment process in the parliament, which lacks legitimacy due to systemic rigging.
Mr. Haque also aligned with the incumbent government on the promulgation of the Digital Security Act 2018 and the Amendment to the Information and Communication Technology Act (the ICT Act) in 2013. Both laws are used by the government to enforce arbitrary detentions of dissidents and human rights defenders in Bangladesh.
Mr. Haque’s professional conduct fall short of the ethical standards required for ICC judges
Mr. Haque’s performance did not meet standards of efficiency and ethics. Mr. Haque consistently made judicial decisions based on his partisan allegiance, particularly in constitutional disputes of high political importance.
While serving as a High Court Judge in the Moon Cinema ownership case, Mr. Haque turned a civil dispute into a constitutional matter. He held the 5th Amendment to the Constitution illegal and unconstitutional. The judgement ultimately restored the 4th Amendment to the Constitution, which seized the independence of judiciary and established a one-party rule replacing a multiparty democratic system. Mr. Haque pronounced the verdict in 2005, but only finished writing the full judgement in 2009, when his preferred political party assumed office. This reflects Mr. Haque’s lack of efficiency and commitment in delivering judgements, which stands against the principles of expeditiousness and efficiency.
Similarly, Mr. Haque unilaterally altered the verdict on the 13th Amendment to the Constitution, which provided for a non-partisan caretaker government to hold general elections. A week prior to his retirement from the office of Chief Justice, Mr. Haque pronounced a Short Order in which he declared the Constitution’s 13th Amendment Act of 1996 void and ultra vires. Mr. Haque retired shortly after without completing the writing of the full verdict. 16 months after his retirement, Mr. Haque issued a full judgment that was contrary to the previously issued Short Order. Such lack of efficiency and consistency in delivering judgements is detrimental to any legal system, and could have jeopardized the ICC.
Haque’s judgement was a gift to the incumbent government, which made massive changes to the country’s Constitution. The people’s right to franchise has been replaced by a one-party rule in today’s Bangladesh. Escalation of gross human rights violation against political opposition and dissidents skyrocketed since the judgement was passed. Enforced disappearance, which is defined as a ‘crime against humanity’ under the Rome Statue, continued in Bangladesh without any legal remedy under the leadership of Mr. Haque at the Supreme Court. His successors have been following Haque’s footsteps to deny judicial remedy to the victims of human rights violations, including extrajudicial killings and knee-capping.
The full judgement of the case on the 13th Amendment Act, over which Mr. Haque presided, barred retired judges from serving in offices for profit. In this context, Mr. Haque was the first judge to breach his own verdict, as he started serving as the Chairman of the Law Commission of Bangladesh in exchange of profit.
Civil society’s key role in opposing Mr. Haque’s nominations
Mr. Haque’s nomination was met with opposition by several civil society organizations. Independent human rights groups made confidential submissions to the Advisory Committee on Nomination of Judges of the ICC specifying Mr. Haque’s disqualifications for the post of an ICC Judge. The Asian Human Rights Commission issued a public statement while other groups and individuals engaged in online activism opposing the nomination.
Authentic criticisms from civil society played a fundamental role in the withdrawal of Mr. Haque’s nomination. The Bangladeshi media cited officials who reasoned the withdrawal of nomination as a result of criticisms raised by human rights groups. The withdrawal of Mr. Haque’s nomination not only emphasizes civil society’s key role in enhancing scrutiny over quality nominees to the ICC, but is also a reminder to the State Parties to nominate candidates having impeccable records. A B M Khairul Haque’s legacy as a Judge of the Supreme Court of Bangladesh made human life in custody cheaper and justice costlier than ever. The withdrawal of Haque’s nomination has saved the ICC from what could have been an embarrassing election at this critical juncture of global trends of expansionism of far-right politics.
The author is a human rights activist from Bangladesh. He lives in exile in Hong Kong and works at the Asian Legal Resource Centre as its Main Representative to the United Nations. He can be reached via email: zaman@ahrc.asia
What an appallingly biased writeup that is littered with inaccuracies! The author Mohammad Ashrafuzzaman refers to alleged biases of retired Justice A B M Khairul Haque. Yet, his own biases are glaringly apparent to any student/teacher/practitioner of the law who is even minimally aware of Bangladesh’s constitutional history. One can and ought to be critical of the human rights record of the current and past governments in Bangladesh, but surely that cannot be done through character assassination as the author has done in this writeup.