South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Kamal Hossain
A champion for the rule of law MAHMUD HOSSAIN OPU

Kamal Hossain’s true achievements lie in his moral leadership in times of national crisis

In 1988, when Scimitar Exploration Limited was awarded a contract by the Ershad-government for oil exploration in Haripur, Sylhet, and they failed in their exploratory work, Jubo Union convened a road-march from Dhaka to Sylhet demanding cancellation of the contract.

The movement had a strong undercurrent of a wider protest against General Ershad’s undemocratic incumbency. When the road-march was to conclude in Sylhet, a good number of political and civil society leaders attended the concluding programs. Among them, a name was being announced by the organizers with great enthusiasm, and he was being introduced as an expert on international petroleum laws.

That was when, as a schoolboy in Sylhet, I heard the name of Kamal Hossain for the first time.

The citizens’ movement triumphed, and Scimitar’s contract was eventually cancelled. As a law student, I later came to know that Scimitar filed arbitration against Bangladesh at International Centre for Settlement of Investment Disputes (ICSID) and Kamal Hossain, along with Justice Badrul Haider Chowdhury (former chief justice), as counsel, went on to register another round of victory for Bangladesh against Scimitar in 1992. 

Bangladesh has won significant legal battles against international oil companies only twice, and on both these occasions Kamal Hossain represented Bangladesh as counsel. The second of these matters was the arbitration filed by Chevron against Bangladesh, and our country was being represented by a different counsel, and had almost succumbed. 

When the matter was brought to Hossain by Petrobangla, he applied to the tribunal for re-submission of Bangladesh’s case, and contested the case afresh. In 2010, the award was passed unanimously in favour of Bangladesh. 

These anecdotes relate to only one of many identities of Hossain, that is, an international lawyer of global reputation.

It is common knowledge that Kamal Hossain chaired the Constitution Drafting Committee of Bangladesh’s Constituent Assembly at the age of 35 and was acclaimed internationally for leading in the effort of delivering a progressive constitution to the nation in the shortest time possible.

However, what is even more significant to note is that Hossain never claimed personal credit for that role, rather invariably refers to Bangabandhu as the person under whose leadership the constitution was framed.

Whenever the constitutional norms of citizens have been sought to be undermined by those in power from time to time, Kamal Hossain has been at the forefront of the protests against such usurpation — be it as a civil society member or a constitutional lawyer. In the famous 8th amendment case, Kamal Hossain and other constitutional lawyers such as Syed Ishtiaq Ahmed and M Amir-ul Islam threw an unprecedented challenge against the amendment.

In what can be considered as one of the proudest moments of our judiciary, the amendment was declared contrary to the basic structure of our constitution, and the Supreme Court was restored to its original form.

The majority judgment in that case, has served as a beacon for the later constitutional and jurisprudential development in the country.

It is hardly an overstatement that, as a constitutional lawyer, Kamal Hossain has contributed the most on the issues of protection and enforcement of fundamental human rights. He has been and still is the “standing counsel” pro bono to the slum-dwellers, who face threats of eviction from time to time, to the workers, who fall victims to poor workplace safety, to indigenous peoples, whose existential rights get trampled by the ruling powers.

Kamal Hossain always says that after having served in Bangabandhu’s cabinet, he did not need to occupy any public office again. True indeed. The amount of success that he achieved as a law minister, foreign minister, and petroleum minister of a newborn country within a short span of time is unparalleled. 

To name a few, he presided over the drafting of the constitution, acted as the top diplomat to obtain recognition from the UN and a large number of countries, and retrieved from international oil companies all petroleum assets over which they had obtained unjustly favourable concessions from the erstwhile Pakistan government. 

Since 1975, Kamal Hossain has played a steadfast role in restoring an effective democracy in the country. At the time of Ershad’s downfall in 1990, Hossain played a leading role in drawing up the Three-Alliance Roadmap which embodied the democratic aspirations of the citizens. He also played a crucial role in getting Justice Shahabuddin to agree to act as the transitional head of state. 

In 1996, when an orderly transition of power encountered another threat, Kamal Hossain, along with Syed Ishtiaq Ahmed, became the architect of a formula which eventually culminated in the introduction of the system of a caretaker governance for holding general elections.

In 2006, the caretaker government structure faced a grave threat, and the parties then in power sought to distort the electoral system by rigging the electoral roll. Hossain again stepped up to the challenge and led a legal battle against the manipulative steps vis-à-vis the caretaker system and the electoral roll. 

He had to suffer the indignation of being named as an accused in a criminal case for his role in that legal challenge. The parties in power now are direct beneficiaries of the work of Hossain and his colleagues in the bar, because the elections that took place eventually in 2008 would not have taken place but for the sustained challenge to the constitutional manipulation in 2006.

Kamal Hossain’s leadership at times of grave national crises has certain notable features. His standpoint has been based only on principles and ideals on all these occasions. He did not benefit personally from the successful outcome of his struggles. His allies have changed over the years, because parties in power have always found him on the other side as he always stands for the rights of the people. 

While he has been an active and effective actor in the political landscape of Bangladesh for more than four decades, his political achievements have been modest.

The value of Kamal Hossain does not lie in what he achieved personally as the leader of a political party, but in the moral leadership he has constantly provided whenever the nation has faced a political or constitutional crisis and in his selfless championship for the values of democracy, rule of law, and human rights. 

Tanim Hussain Shawon is a Barrister and Advocate, Supreme Court of Bangladesh.


Updated On: November 3rd, 2018