The strong reaction of the members of parliament to the scrapping of the 16th amendment, which had reverted powers to impeach judges back to the parliament, indicates that this judgement is hard for the government to swallow. With the Supreme Court upholding the ruling Awami League leaders have been lashing out viciously. AL presidium member Abdul Matin Kharsu bluntly stated, “We are angry, hurt and harmed by this judgement.” He said that even the opposition was not so harsh with them.
About nine days after this, the law minister commented that the observations on the judgement were unwarranted and irrelevant. He hinted at a possible appeal to expunge those observations or subject them to review. But he didn’t take any drastic decision to reject the judgement outright. Unfortunately, his cabinet colleagues had taken a different stance, opting to be vocal in their castigation of the judiciary, the chief justice in particular. Some of them have made such comments that even publishing these in the media may lead to contempt of court. While members of parliament have impunity to speak in the House, making such comments outside the parliament is uncalled for, and unprecedented.
On the other hand, the opposition outside of the parliament, that is BNP, is pleased with this judgement. They claim that this verdict has curtailed the legitimacy and credibility of the government. The court itself is not pleased with this debate being raked up by AL and BNP. Annoyed with the law commission chairman ABM Khairul Huq’s criticism against the judgement, the pro-BNP lawyers have accused him of contempt of court.
The chief justice has made it clear that the court will not succumb to politics. But the court premises are agog with agitation as lawyers of the opposing camps take up programmes and counter-programmes on this issue. Former chief justice Mahmudul Ameen Chowdhury has rightly said that such politics should never have been taken up. He said that it is as if a war has broken out, adding that if there were any errors in the judgement, the court had the scope to fix that.
The bottom line of a democratic system and the rule of law is that no matter how unpleasant or unwanted a court verdict may be, it must be carried out. No civilised democratic society can practise selective justice. It does not reflect a healthy mindset to only accept court verdicts that suit one. We have seen many constitutional amendments being accepted with great eagerness.
The government is a party in 80 per cent of all the cases in the Supreme Court. No party wants to lose a case, all sides want to win. It is only natural that the government will want to win all those cases too. Now according to the chief justice’s observations, if the government manages to establish control over the judiciary, will it be possible for any side to win any case against the government?
Let us look up some instances to measure the government’s commitment to the principle that all are equal in the eyes of law. We recall the ministers who were proven guilty in court but still retain their cabinet positions. We recall over 7000 cases against party men bring withdrawn based on their party allegiance. These included murder cases. So linking accountability of judges to the rule of law is a weak argument. An independent judiciary may often prove to be a source of discomfort for politicians. Those at the helm had hoped that by retaining the reins of the judiciary in their hands, they would sail through an easy future.
There is nothing to differ with the chief justice in his observation about the centralisation of power. That is reality. Unless this equilibrium in power is brought about, there can be no justice in the state. The political aspects in the chief justice’s observations have been dismissed as irrelevant by some quarters. If they read the judgement thoroughly, they would understand the contextual relevance of politics, history and the various institutions of state.
Former law minister Abdul Matin Khasru himself spoke as an intervener in the hearing of this case. His statement was extremely political. And the attorney general’s statement was even more political. The chief justice had an explanation at the beginning of the judgement. He said that the appeal was to look into whether the 16th amendment was a violation of the constitution. He said that this was in all appearances an innocuous simple question, but the answer was not a simple one at all. In fact, it involved several serious and complex events and issues pertaining to our political history over the past seven decades (1947-2017) and the last four and a half decades (1971-2016).
It is not as if any institution of the state got an absolute clean slate regarding the events and issues mentioned by the chief justice, not the parliament, the bureaucracy, the election commission, the law enforcing agencies, no one. The politicians, understandably, were the most criticised. The main burden of blame was placed on the two major political parties. So it is not as if everything went against Awami League. Awami League surely does not disagree with the contention that the two martial law rules had rendered the government into a ‘banana republic’. Neither had BNP any reason to be elated with that. The critics of the judgement who say that there was no self-recrimination about the court’s role in lending legitimacy to the military rules in the past, are correct on that point. There was dire need for such self-criticism.
A large section of politicians and civil society have refrained from commenting about the far-reaching impact of the observations made by the chief justice and the other judges on the judgment regarding the 16th amendment. Some say the observation is a personal view of the judges, not a part of the judgement. But is that so? Black’s law dictionary maintains that when a judgement is passed, there is generally an explanation as to why the court reached a certain decision. That is part of the court’s responsibility. These explanations and observations can be used in future as reference points. Undoubtedly, the observations pertaining to the 16th amendment judgement will be used as examples in the future.
The opinions of the court contained in the observations on the 16th amendment judgement can broadly be listed as:
1. The responsibility of upholding the constitution lies with the Supreme Court.
2. The people, not the parliament, hold all sovereign powers.
3. The country is rife with self-interests which have established a fake and artificial democracy in narrow party interests.
4. The parliament has become an ineffective institution.
5. Politics has become a business.
6. Article 70 of the constitution holds members of parliament hostage to the party high command.
7. There is no watchdog to keep in check abuse of power and arrogance.
8. The election commission hasn’t been institutionalised.
9. A credible election system hasn’t been established and a credible parliament cannot be formed without a credible election.
10. The parliament didn’t heed the directives of the Appellate Division of the Supreme Court when passing the fifth amendment. (The Appellate Division had directed that the caretaker government be kept intact or two more terms, when the 13th amendment regarding the caretaker government was scrapped).
11. State power in recent times lay in the hands of just a few.
12. Military rulers had snatched power and rendered the country into a banana republic with the connivance of a section of the military-businessmen-high class society.
13. The fourth amendment was in conflict with the constitution and through it, the accountability of the judiciary had been placed in the hands of the president.
14. The establishment of the Supreme Judicial Council by means of the fifth amendment had relatively ensured the independence and transparency of the judiciary.
15. It is unsubstantial to demand removal of everything pertaining to military rule in the constitution because the government has not touched the issues of state religion, Bismillahir Rahmanir Rahim in the constitution, Bangladeshi nationality and issues of the Muslim family law.
There are other observations made by the judges which may be discussed further. Certain legal experts have been saying that in light of the court’s observations, there is scope to challenge articles like Article 70 which go against rights.
The question is, will we turn to legal recourse to settle such issues, or will we resort to political dialogue and understanding? The judgement on the 16th amendment has strongly reminded us of the need for reforms in politics and the state system. The sooner the discussion on reform begins, the better.
* Kamal Ahmed is a senior journalist and consulting editor at Prothom Alo. This column, originally published in Prothom Alo Bangla print edition, has been rewritten in English by Ayesha Kabir.