The International Criminal Court (ICC) is about to appoint six new judges as the 9-years tenure of six of the 18 judges ends in 2021. In the lead up to the appointments of the new judges the Assembly of the State Parties (ASP) has already confirmed the nominations of 22 candidates by 15 May 2020. The appointment of the nominated candidates will be affirmed in a process of election at the 19th Session of the ASP between 7 and 17 December this year in New York.
The Asian Human Rights Commission (AHRC) notes with great concern the nomination of A B M Khairul Haque from Bangladesh, one of the most controversial members of the Judiciary of Bangladesh, for the upcoming election of judges to the ICC. The decisions of ABM Khairul Haque have been widely criticised for failture to adhere to judicial ethics, efficiency, and moral standards during his tenure as the Chief Justice of the Supreme Court of Bangladesh. He is widely seen as highly politically biased Judge who made decisions in favour of the Executive and contributed to the nation’s drift towards authoritarianism in Bangladesh. His dismal record should be seriously examined as his appointment to the position of a judge at the ICC, which is the highest global criminal justice institution in the world, will compromise the integrity of the ICC itself.
The ASP is obliged to uphold the principles of objectivity and non-selectivity for the interest of justice and the image of all the organs established under the Rome Statute of the International Criminal Court in compliance with the international treaty-based procedures.
Article 36 (3) (a) of the Rome Statute of the International Criminal Court enshrines the qualification of the judges. It reads: “The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.”
Bangladesh’s former Chief Justice A B M Khairul Haque’s nomination requires a further review on the basis of facts, prior to the election of the judges at the upcoming ASP Session.
Out of many controversies that were triggered by A B M Khairul Haque’s actions while a judge in the Supreme Court of Bangladesh, the 13th Amendment Case (Civil Appeal No. 139 of 2005 with Civil Petition No. 596 of 2005) is one that created a political and judicial tsunami in Bangladesh. This is a constitutional case, carrying immense political importance in the democratisation of Bangladesh. The 13th Amendment to the Constitution of the People’s Republic of Bangladesh introduced the interim Caretaker Government system, to allow for holding credible national elections amidst a continuous atmosphere of political distrust among contesting parties and dysfunctional electoral and judicial systems lacking checks and balances. In 1999, a lawyer challenged the validity of the Caretaker system in the High Court Division of the Supreme Court (in Writ Petition No. 4112 of 1999) and in 2005 the court found the system unconstitutional. This decision was appealed against in 2005, but hearing of the matter only commenced in 2011, when ABM Khairul Haque was the Chief Justice.
As the presiding judge of the full bench of the Appellate Division, Haque along with six other judges, heard the case on ten separate dates between 1st March 2011 and 6th April 2011. On 10 May 2011, a week prior to his retirement from the office of the Chief Justice, Haque pronounced a Short Order in the Supreme Court, declaring, among other things, that the Constitution (Thirteenth amendment) Act 1996 was void and ultra vires. He also ordered that the ‘election to the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment on the notorious doctrine of necessity stating that ‘which otherwise is not lawful, necessity makes lawful)…’; and that ‘The Judgment in detail would follow.’
ABM Khairul Haque retired from judicial service on 17 May 2011, without completing the writing of the full verdict of the 13th Amendment Case. On 16 September 2012, 16 months after his retirement, Haque made the judgment available while he became an ordinary citizen. In the full text of the written judgment, Haque deviated from the Short Order he had given on 10 May 2011. The written judgement did not contain the provision for considering the following two Parliamentary elections to be held under the caretaker government system as per the 13th Amendment to the Constitution. He also added new suggestions that were not part of the original Short Order, including in it that judges should not take for-profit offices/ positions after retirement. His fellow judges of the Supreme Court Appellate Division Bench, termed Haque’s unilaterally altered version ‘not in conformity with the short order’. As a consequence of Khairul Haque’s altered judgment, the incumbent government of Bangladesh immediately promulgated the 15th Amendment to the Constitution, repealing the interim caretaker system, for its totalitarian political benefit, further weakening the electoral democracy in the country. Haque played a part in destroying the independence of the Judiciary by altering his judgment to favour the Executive branch of the State of the day. The consequences of this were violence, rigged elections, extremely poor voter turn outs, a subservient and politically biased Election Commission and an increasingly authoritarian and repressive government led by the same political party since 2009. The government continued widespread violation of human rights including enforced disappearances, extrajudicial killings, and torture while the Supreme Court of Bangladesh under the leadership of A B M Khairul Haque did not provide effective remedy to the victims of those crimes committed by the agencies of the State.
This demonstrates ABM Khairul Haque’s poor judicial ethics. Competent observers have notedthat Haque unilaterally altered a judgement on an extremely sensitive matter, without any further hearing of the litigants and without consulting with his fellow judges of the Bench. Between the last date of hearing and the pronouncement of the short order, A B M Khairul Haque had at least 33 days to complete his pending judgement-writing tasks. In fact, he set an unprecedented record of inefficiency in accomplishing his official duties before his retirement from the Judiciary, submitting the written text of the ‘full judgement’ 16 months after his retirement.
On 24 July 2013, the incumbent government appointed A B M Khairul Haque as the Chair of the Law Commission of Bangladesh, where he has been serving as the longest ever Chair with salaries, allowances, and benefits equivalent to those of the Chief Justice of the country. A judge who held in his judgement that the judges should not take the office of profit after retiring from the judiciary, now enjoys an office of profit from the incumbent whom he served politically while in the judiciary. The Law Commission is supposed to be an independent body and its tasks include recommending amendment of laws and recommendations to repeal of existing laws that are inconsistent with the fundamental rights. However, the Commission under Haque’s leadership has not fulfilled this objective. In August 2013, the Government amended the highly controversial Information and Communication Technology Act (the ICT Act), with harsher punishments and to make offences non-bailable. Sweeping arrests were made under this Act, drastically curtailing freedoms of speech and expression. There was no effective contribution from the subservient Law Commission led by A B M Khairul Haque as its chair. The incumbent government of Bangladesh continues to draft repressive laws with arrogant confidence and recently repealed the ICT Act to make way for an even more repressive Digital Security Act 2018. Both the repealed ICT Act and the newly promulgated Digital Security Act have been instrumental in detaining human rights defenders, media activists, and dissenting voices with deafening silence of the Law Commission under Haque’s leadership.
The AHRC urges the international lawyers, human rights groups, and jurists to demand removal of A B M Khairul Haque’s nomination. The ICC deserves judges having higher moral and ethical standards to administer justice to the victims of international crimes. Fulfilling the geographical vacancy must not be an excuse for the ASP in appointing a candidate with manifest disqualifications of very serious nature.