& çâÌæÚUæð´ ·¤è ¥ôÚU Îð¹Ùæ ÁæÚUè ÚU¹ð´ ¥ÍæüÌ ¥ÂÙð ÜÿØ ÂÚU ŠØæÙ ÚU¹ð´Ð ãæÚU Ù ×æÙð´, €UØô´ç·¤ ·¤æ× ·¤ÚUÙð âð ¥æÂ·¤ô ©gðàØ ·¤è Âýæç# ãôÌè ãñ ¥õÚU ÁèßÙ ·¤æ ¹æÜèÂÙ ÎêÚU ãôÌæ ãñÐ ÖÜð ãè ÁèßÙ ×ð´ ç·¤ÌÙè Öè ·¤çÆÙæ§ü €UØô´ Ù ¥æ°, çÁ™ææâæ ¥õÚU ©ˆâæã ÕÙæ° ÚU¹ð´Ð ŠØæÙ ÚU¹ð´, ÜÿØ ã×ðàææ ¥æÂ·Ô¤ Âæâ ãôÌð ãñ´ çÁ‹ãð´ ÂæÙð ·Ô¤ çÜ° ÂýØæâ ¥æÂ ·¤Öè Öè àæéM¤ ·¤ÚU â·¤Ìð ãñ´Ð

CHIEF JUSTICE

Mustafa Kamal

Iconic legal giant of bygone age

Manzoor Hasan
CHIEF Justice Mustafa Kamal was one of those rare academic-minded lawyers who never lost his zeal for judicial activism despite the elevation of age or status.
I haven't had the privilege of appearing before him as a practicing barrister but my encounters happened as the founding executive director of TIB. As TIB was advocating for improved governance, lustice Mustafa Kamal was exercising his judicial mind to call for an independent lower judiciary or redefining the limits of locus standi in relation to writ applications. Justice Mustafa Kamal's famous cases, such as, MasdarHossain and Dr. MohiuddinFarooque, among many others, will remain as rich testimony to his judicial activism.
In the case of Masdar Hossain, Justice Mustafa Kamal laid out a clear roadmap for the separation of the lower judiciary from the executive. The boldly delivered landmark decision of Secretary, Ministry of Finance v Masdar Hossain (1999) became the rallying call for various civil society organisations and media houses to pursue the objective of an independent and accountable lower judiciary in Bangladesh.
Justice Mustafa Kamal had to determine the position of the judiciary vis-a-vis both the executive and the legislature when in 1995 a group of judicial officers brought before the court the following constitutional issue - to what extent the Constitution of the Republic of Bangladesh has ensured the separation of judiciary from the executive organs of the Stat
Justice Mustafa Kamal delivered his historic judgment with 12 directive points on May 7, 1997 (reported in 18 BLD 558). The government appealed and the Appellate Division upheld the decision of the High Court Division but with some modification. The judgment was delivered on December 2, 1999 (reported in 52 DLR 82), and the government was given clear directions in order to complete the process of separation of the lower judiciary from the executive by undertaking steps, such as, a sepa-
rate Judicial Service Pay Commission, amendment of the criminal procedure and the new rules for the selection and discipline of members of the lower judiciary
The fact that Justice Mustafa Kamal didn't choose to become a private man, secluded from the challenges and controversies of everyday life, is manifested by his active participation in various conferences, seminars and roundtables. Dhaka is famous for its 'adda' culture and lately the talkative Bengalis have formalised this into regular roundtable meetings of the 'usual suspects.' Justice Mustafa Kamal didn't shy away from these gatherings just because he once occupied the ratified benches of the Supreme Court of Bangladesh but selectively attended them and expressed his opinions with judicious balance and objectivity.
I recall with great satisfaction Justice Mustafa Kamal's consent to attend the 9th International Anti-Corruption Conference (October 10 to 15, 1999), which was held in Durban, South Africa. Chief Justice (as he then was) Mustafa Kamal became the de facto leader of a rather large contingent from Bangladesh on the invitation of Transparency International. Justice Mustafa Kama) was invited to address a plenary session, and at the end of the speech he received a standing ovation! He delivered a powerful speech, 'Ethics, Accountability and Good Governance' Let me cite a few paragraphs: “...if corruption is to be combated, it would have to be addressed both by way of a change of heart and a change of consequences.
Good governance, ladies and gentlemen, is an extension of the principle of the rule of law. A society is well governed when there is a rule of law, not a rule of man or woman.
A democratically elected government is not necessarily a democratic and open government. It has often been found in history that a democratically elected government can also be despotic and autocratic in practice.
On his retirement in 1999 Justice Mustafa Kamal took on alternative dispute resolution, popularly known as ADR, as his cause celebre. He travelled extensively up and down the country to raise awareness and conducted training on ADR. Given the fact that there are millions of pending cases in the courts, Justice Mustafa Kamal rightly believed that one of the most effective ways of dealing with this perennial and pernicious cause of misery to citizens, particularly the poor, was to formalise a citizen-friendly mechanism to resolve minor disputes of mainly civil nature outside the realm of the formal justice sector. His effort was subsequently vindicated when the government of Bangladesh enacted a new law, which has made the use of mediation and conciliation mandatory before resorting to courts and lawyers.
Justice Mustafa Kamal's intellectual honesty and integrity has opened our 'eyes' to the real weakness of the judiciary and the legal profession. Rather than delivering justice to the citizens of Bangladesh the long delays and lowering of ethical standards have brought much frustration among the public, and it is high time that we come up with alternatives.
Justice Mustafa Kamal and what he embodies is fast disappearing from our society, a sad but incontrovertible observation.
The writer is Barrister-at-Law. E-mail: mhasan56@gmail.com