Turning points of rise and fall of Hasina in a tale of two verdicts by apex court  

The 5 June High Court verdict ordering the government to restore the 30% quota reserved for freedom fighters and their descendants along with quotas for others in the public jobs was as critics say a reflection of the will of Sheikh Hasina regime.

The order came just five months after she was sworn in as the prime minister for consecutive fourth term after a "successful conduct" of the January parliamentary election participated by her Awami League, allies and party's "dummy independent" candidates in an arranged "competitive game."

The last election made the list of rigged elections long. Three consecutive rigger elections were presided over by Hasina, an unprecedented record Bangladesh has seen never before.

In such a prevailing situation, the HC verdict in a case pending for three years offered her a golden opportunity to rejuvenate her image of "the biggest protector of the spirit of the country's liberation war" as she often claimed her father Bangabandhu Sheikh Mujibur Rahman liberated Bangladesh.  

But her strategy to shoot off over the judiciary this time backfired. It angered the youths who remained silent even after being deprived of voting rights thrice since 2014. They took to the streets protesting restoration of the quota. Due mainly to Hasina's arrogance and mishandling of the issue the protest snowballed into a one-movement forcing her to resign and flee the country.

The verdict that powered Hasina to rise  

In 2024, luck did not favour her like the previous occasion.

Hasina returned to power by winning the December 2008 parliamentary election which was widely lauded as free and fair. It was not held under any partisan government that failed to offer any free and fair election in the history of Bangladesh. And no immediate past ruling party won any free and fair election. Hasina knew all the facts. The only way to manipulate the election was to stay in power during the election.      

A Supreme Court verdict in 2011 declared the constitutional provision for the caretaker government illegal, opening the door for Hasina to stay in power in the elections to be held after her tenure.

She rejected the parliamentary committee on constitutional amendment to keep the provision valid for two more parliamentary elections. She banked on the apex court verdict and abolished the non-partisan caretaker government system. She clung to power during the polls manipulating three consecutive parliamentary elections. The 2011 verdict armed Hasina to rise as an authoritarian leader.

The verdict declaring constitutional provision was based on one argument that non-elected people can not exercise the executive power for a single day and allowing non-elected people to lead the caretaker government destroys the democratic character of the Republic. Three judges of the appellate division agreed to this argument.

Three others did not agree with the logic and strongly argued that the non-partisan caretaker government ensured free and fair elections which is key to electoral democracy.  

Then chief justice, ABM Khairul Haque sided with the argument and cast his decisive vote declaring the constitutional provision for non-partisan election time government illegal.

But he overlooked the then constitutional provision that allowed non-elected people to become technocrat ministers and exercise the executive powers.

The provision in article 56 (2) still offers appointment of one-tenth of the cabinet members from among people who are not MPs, but qualified for elections, as technocrat ministers.

Khairul Haque, who was made chief justice in 2010 by the Hasina government superseding two more senior judges, got his reward after retirement as CJ. He was first appointed as the chairman of the commission in July 2013, only two years after his retirement as chief justice and continued until his resignation after the fall of Hasina. He enjoyed salary, allowance and other benefits, equivalent to those of the chief justice for more than a decade.

Hasina government that bought the ex CJ Hague's argument to cancel the caretaker government system that had ensured free and fair parliamentary elections did not amend the provision to restore the original one of 1972 which asked for election of technocrat minister as MP within six months of being inducted in the council of ministers. Failure to do so, s/he would cease to be a minister.

Each of the cabinets formed after cancellation of the caretaker government induced non-elected people as technocrat ministers.

The rest is history. Election system was brutally trampled. People were denied voting rights. Any opposition to her regime was brutally crushed. Hasina's regime was marked by grand scale corruption, rampant violation of human rights and extrajudicial killings.

But she abused the liberation war and Bangabandhu as shields to protect her regime.  

The verdict that caused Hasina's downfall

In a suffocated situation, the High Court came up with the verdict for restoration of quota disposing of a writ petition filed in 2018 after abolishing the entire quota system by the Hasina government.

The verdict was based on emotional reasoning along with incorrect interpretation of "observations" made in two previous judgements on quota system.  

The disputed issues in the two previous verdicts delivered in 2012 were linked to refusal of appointment of a freedom fighter's son on quota and retirement benefits of a freedom fighter from the government service. In both cases, the litigants were given remedy.

In the discussion of the facts of the cases, both judgements opined that the 30% quota in government jobs for freedom fighters and their children should be followed strictly. The observations were upheld by the Appellate Division too.

When the HC judgments were delivered and upheld by AD, keeping the 30% quota reserved for freedom fighters and their children was a policy matter of the government which as per the apex court's observation should be followed strictly.    

But when the 5 June verdict was delivered by the High Court ordering the government to restore the 30% quota the policy did not exist at all as it was abolished altogether in 2018 following recommendations by a committee formed after Hasina's announcement to abolish the entire quota system. 

On March 5, 2018, the HC rejected a writ petition that challenged the quota system, saying that the matter was a policy decision of the government. The HC order indicated that the court was unwilling to interfere in it.

Yet, after six years down the line, the HC verdict banked on the observations which became automatically infructuous after abolishing the entire quota system in 2018.  

Even were the entire quota system not abolished, the court could not bank on mere observations to order the government to change its policy for restoration of the 30% quota. Because judges, jurists and scholars all over the world have long ago concluded that observations, also known as remarks or opinions of judges, in a verdict are not binding upon any parties to a case.

But the High Court claimed that those were binding upon the courts and all the authorities. Violation of the "observations", according to the 5 June verdict, is amounting to contempt of court.

Interestingly, the High Court that delivered the 5 June verdict admitted that maintaining the quota in the job is a policy matter of the government. And then it invoked the emotional argument focusing on the contribution of freedom fighters to the liberation war of Bangladesh.

"Admittedly, this is a policy matter of the government. however, it's transpires from the record that the quotas reserved for the freedom fighters and affected women was introduced absolutely on clear recognition to the freedom fighters for their heroic contribution to the nation which has also been extended to the children and grandchildren of the freedom fighters, a clear recognition which the freedom fighters have achieved," argued the EC.

As the question has been raised whether the freedom fighters, their children and grandchildren are a backward section of the citizens or not, the HC argued that denying them the quota benefits for 21 years after the regime change in 1975 has made them backward citizens.

"We are of the view that during the period of 15 August 1975 to 1996 for the last 21 years, the freedom fighters and their children and grandchildren have been suffering socially, economically and politically, which makes them one of the most backward sections of the citizens of this country," it asserted.

"The heroic contribution of the freedom fighters, and suffering and pain sustained by the freedom fighters and their offspring during nine months of our war of liberation and after 15 August 1975 to till 1996 i.e. for last 21 years can not be ignored and nation must have highest regard to the freedom fighters and anything is done derogatory or taken away the right and privilege should be treated as illegal and unconstitutional," it argued.

The judgement described freedom fighters, their children and grandchildren as one of the most backward sections of the citizens to provide them the benefits of the quota keeping conformity with the article 29 (3) (a) of the constitution. That provision allows the government to do positive discrimination to make "special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic."

The HC was too critical of the successive government formed after the August 1975 changeover toeing the line of the Hasina government.

It said after the unfortunate event of killing of Bangabandhu, the father of the nation and his other family members on 15 August 1975, the anti-liberation forces in disguise of pro-liberation forces came to power. All Pakistani notorious collaborators and war criminals came back to Bangladesh.

"During this time the quota system though not abolished but in fact neither the quota system for the freedom fighters were maintained nor the freedom fighters were allowed to enjoy 30% quota in recruiting process till 1996 i.e. for last 21 years with deliberate intention of a gradual process for elimination of freedom fighters from being recruited in the service of Republic. Due to this process of elimination, a large number of non-freedom fighters and even the anti-liberation forces occupied almost all services of the Republic," the HC added.

Interestingly, the HC in the verdict on one hand said maintaining a 30% quota reserved for freedom fighters and their descendants mandatory on the other hand it said the government however can change, reduce or increase the ratio or percentage of the quotas.

The judge who authored the verdict was appointed to a judge of the High Court Division by the Hasina government. Before his appointment, he was reportedly affiliated with the politics of Hasina's Awami League.

"Complete Justice"

The Appellate Division led by chief justice Obaidul Hasan who would resign after the fall of Hasina regime on July 10 refused to give a stay order on the HC verdict on restoration of the quota.

He even said students demanding quota reform should present their arguments in court instead of holding demonstrations on the street.

"The way students' protests cannot be appreciated. The High Court has given a verdict, and whether it is correct is for the Appellate Division to decide. The Appellate Division can overturn, modify, or uphold the High Court's verdict. Students should present their arguments in court, which is the proper forum. Protests can not change verdicts. Only courts can change verdicts," he added.

The SC gave a status quo on the HC verdict and set August 7 for hearing. The decision did little to pacify the protesters.

Situation changed very fast as the protests grew bigger and the government ordered the law enforcement agencies to crush the movement.

Amid volatile situation, the Appellate Division on 21 July ordered major reforms to the quota system in jobs at government, semi-government and autonomous bodies, curtailing quotas to only seven percent from the existing 56 percent. According to the SC order, 93 percent of jobs in civil service will be merit-based. The apex court also scrapped a High Court judgment that reinstated quotas in government jobs.

But it was too late to defuse the situation. More than 140 people, including seven on the day of AD verdict, were killed and several thousand injured in less than a week as law enforcers joined in by ruling AL men clashed with protesters in Dhaka and elsewhere. The sheer scale of the violence prompted the government to impose curfew and deploy armed forces across the country.

Interestingly, the AD banked on the article 104 of the constitution that offers "complete justice" on a disputed issue. The seven-member full bench of the AD led by CJ Obaidul Hassan fixed a five percent quota for children of freedom fighters, martyred freedom fighters and Biranganas. One percent quota has been reserved for ethnic minorities and another one percent for persons with disability and people of third gender.

It said although setting quota is a "policy matter of the state", they, considering the overall situation, were applying article 104 of the constitution for "complete justice."

But, the justice was not complete as the court itself said the verdict would not bar the government from changing, reducing or increasing the ratio or percentage of the quota.

Hasina's politics of quota

In 2011 Hasina government extended the freedom fighters quota even to the grandsons and granddaughters of the freedom fighters as she gradually started using the liberation war as a shield to protect her regime from all wrongdoings.

The quota system was marred into controversy over its abuse and alleged corruption.

In 2018, students and jobseekers took to the streets seeking reform in the quota system. But Hasina did not pay heed to the demand. As the protest grew bigger, in an angry counter to the protesters in April 2018 she abruptly announced to abolish the entire quota system.

But in July the same year, her cabinet minister for liberation war affairs AKM Muzammel Haque in a press conference announced that the 30% quota for freedom fighters and their children could not be abolished.

He said a copy of the apex court order has been sent to the seven-member committee formed by the government to "review or reform or cancel" the quota system. The committee however did not buy Mozammel's arguments.

Hasina however came up with support for Muzammel. In July, she in parliament referred to Mozammel's statement and asserted that there was no scope of bringing changes to the quota for freedom fighters' children and grandchildren.

"Since the High Court has already decided that freedom fighters' quota is going to stay, how can we go against this verdict?" she asked. 

The 5 June HC verdict ordering the government to restore the 30% quota for freedom fighters and their descendants opened the window for Hasina who would continuously defend the HC verdict.

On 7 July Hasina said the quota issue in the government jobs should be settled in the apex court.

"The High Court pronounced a verdict regarding the quota system and movement is being held in a sub judice issue. We can not say anything like them from the government. Since the High Court gave the verdict, a solution should come from the court," she said.

As the student protest kept growing, Hasina on 14 July has made it clear that the issue of quotas in public sector jobs will have to be decided in court before cautioning that if the ongoing protests turn destructive, they will be dealt with in accordance with the law.

During a news conference held at Ganabhaban, she responded to a question, saying, "If the grandchildren of freedom fighters don't benefit, does that mean the grandchildren of Razakars (Pakistani collaborators) will?"

She faced questions from journalists at the press conference about the ongoing movement waged by a group of students and job seekers for abolishment of quotas.

Referring to the notification revoking the quotas and the subsequent legal challenges by the children of freedom fighters, Hasina said, "The children of the freedom fighters have filed a case. If the High Court gives a verdict on this matter, there is nothing we can do."

 "When the court has ruled, I have no right to oppose it. Neither the constitution nor the parliamentary procedures say that we can intervene until a court decision is reached. This is the reality, and we must accept it."

About the uncompromising stance of the protesters, she said, "Those who are protesting now, they do not respect the law, nor the court; they do not even know what the constitution says. They lack the basic understanding of how the executive functions.

"Yes, they are studying and getting good marks, and they will be the future leaders, so they need to understand these concepts. They should know what the constitution says."

Hasina presented her stance in favour of quotas in government jobs. "How the state will function is outlined in our constitution, which states that the underprivileged must be involved in state affairs. Have they ever read the constitution? Who has given them the right to speak against the freedom fighters?"

"Before starting the quota movement, they should have looked at their own results. Where do they stand!

"Why do they hold such resentment towards the Liberation War and the freedom fighters? If the grandchildren of freedom fighters are not to benefit, will the grandchildren of collaborators (get jobs)?

"What is the crime of the freedom fighters? Those who risked their lives, leaving their families and households, who fought in the Liberation War enduring hunger, mud, sun, rain, and storms to free this country.

"Because the freedom fighters brought victory, everyone today can hold high positions and speak loudly. Otherwise, we would have died at the hands of the Pakistanis."

But her remarks linking protesters to sons of Razakars added fuel to the fire. Students came out of the dormitories the same night and staged the protest chanting the slogan "who are you? Who am I? -- Razakar, Razakar. "Who said this? Who said this? – autocrat, autocrat.

Since then the situation gradually went out of control, scrapping the HC verdict and "complete justice" by the appellate division could not defuse the situation as the law enforcement agencies and her party thugs already killed dozens of protesters. Imposing a curfew and deployment of the armed forces could not save Hasina from the fateful 5 August when he resigned and fled the country for India, leaving her party in an unprecedented crisis.