Homage to a maverick Judge
S. M. Masum Billah
Two years passed without Justice K. M. Subhan in the legal and human rights campaign! I had the fortune to come in contact with Justice Subhan for several times. The last time I met with Justice K. M. Subhan at Human Rights Summer School organized by ELCOP on 10 December 2007 in PROSHIKA Centre Manikgonj. Justice Subhan went there to preside over the moot court session. When I met with him he inquired of my well being addressing me by name. I was startled a bit. Because I thought that he might have identified my face but recalling the name would be a remote possibility. I informed him that I was thinking to opt for judicial service. He discouraged me and said, “You are quite perfect for academic discipline.” I told, “You are always campaigning for rebellious judging and lawyering then do you not think that I would be of use for that purpose?” “Good academicians are also not out of the ambit of anti-generic lawyering”- he retorted. He worked with us to imbibe a dream inside the law students to be 'rebellious lawyers' - a term with which I was struggling for a proper Bangla synonym. I asked him should its Bangla translation would be 'bidrohee ainjibi'? He smiled and said, 'No, dear, it should be 'drohee ainjibi' - a lawyer who burns inside himself to battle for the causes of the poor and the deprived. Such was Justice K. M. Subhan. I did not contemplate then that we, as a last bite of 2007 (31 December 2007), would loss a refulgent star of progressive movement, a relentless campaigner of human rights and a loud voice to try the War Criminals and their aides of 1971.
I had no scope to see Justice Subhan sitting at the Bench. But the picture can be visualized from a remark while he was presiding over a moot court session. After the Counsel for the respondent had finished his submission, the Appellant's lawyer stood and deposed, “My Lord, my opponent counsel has given all his intelligence to mislead this court.” Then Justice Subhan commented with anguish, “Do you think that the court is seated here to be misled?”
The justice philosophy of K. M. Subhan was simple---'people's essence is the highest law'. He believed constitutionalism should always be triumphant over martial law and despotism. Indeed Justice Subhan has been a name in the way of constitutionalism of Bangladesh especially when we witnessed several times the military autocracy and constitution being slandered. When at his time some other judges were competing to gratify martial law by their legal wisdom to make the constitution subservient to the military proclamations Subhan stood in the way with a difference. His strong dissenting opinion in the Case of Hazi Joynal Abedin 32 DLR (AD) (1980) p. 129, was a first smack on the military regime where he upheld that the quorum non-judice military courts are amenable to the jurisdiction of the Supreme Court.
In this way he, for the first time in independent Bangladesh, established the supremacy of the constitution over martial law regulations. Interestingly, the latter decisions of the Appellate Division were rendered relying on his dissenting judgment. In this sense he is a trend setter of constitutionalism in Bangladesh. Justice Subhan had to pay for 'protecting, supporting, and defending' the constitution. He was removed from Judgeship by the military rulers.
Justice Subhan dismantled himself from judge-syndrome. He could not keep himself aloof from the social movements. We would definitely miss his legal expertise in forwarding and consolidating the ongoing movement for the trials of the war criminals. But he is and would be a constant source of inspiration for human rights movement.
The writer is Assistant Professor, Department of Law, Jagannath University, Dhaka.