Debate on judgement and a draft solution!

Shahdeen Malik | Update:

From the very moment the judgement on the 16th amendment was pronounced, there has been a whirlwind of discussion and debate, of kudos and castigation. And it does not look like this storm will subside anytime soon. Then again, if the sufferings of Eid travel over the next couple of days reaches a peak and if the Mushfiq-Shakib army can crush the Aussies, then these events will take over the media headlines. The 16th amendment debate may be relegated to the back burner.

Over the past month there has been so much bickering on TV talk shows over the 16th amendment verdict, so much has been written in the newspapers, and there has been such an outpouring of opinions from leaders big and small, that one can’t help but feel lost and confused. However, the critics continue to voice their concerns and their annoyance. If is now essential to take at least some of the views into consideration and work out a resolution to the problems. These are complex problems with no single solution. But there has to be a start somewhere and hence this humble effort.

Problem no. 1

There are many problems, but the critics haven’t numbered them as problem no. 1, 2 3 and so on. Let us do so. Problem no. 1 is a lot like this - 350 members of parliament will spend time to discuss and deliberate, debate and dispute, and go into detailed analyses to bring about an amendment to the constitution, but two judges will declare the sovereign parliament’s decision to be unconstitutional and overturn it with a scratch of their pens. This simply cannot be allowed!

In most instances, a high court bench comprises two judges. In some cases it is just one judge. And in certain special cases, perhaps once or twice a year, three judges constitute a bench or a court. The judgement which scrapped the 16th amendment was given by three judges. Two gave their verdict in favour of scrapping the amendment and one against. Later, all seven judges of the Appellate Division pronounced their judgement in favour of annulling the amendment. The fact remains, whether it is two or three judges or whether it is seven judges, the verdict of the great sovereign parliament, that is the amendment to the constitution, was annulled.

In this republic it is undemocratic to dominate over the representatives of the people, who were elected by the people. It is contempt of the public. In fact, it was even uttered in the parliament, ‘we appoint the judges, the parliament fixes their salaries, and now they are turning against us.’

So the solution is simple. This authority of the judges must be cancelled. The constitution must be amended accordingly.

There is no need for any complex explanation. We will present the draft in a simple manner. If the honourable government is pleased and if my humble self is given the order to write a ‘paper’, I shall certainly comply.

First, Article 7 of the constitution will have to be amended. Dr Kamal Hossain and associates have simply written that the constitution is the highest law of the republic and if any law is inconsistent with the constitution, then the inconsistent part of that law will have to be scrapped.

It’s this Article 7 that is the root of all trouble. At the slightest chance, the two judges say this law or amendment (a constitutional amendment is also a law) passed by the parliament is inconsistent with the constitution and so must be scrapped.

So the easy way out is to annul this Article 7. That will do away with the judges’ authority.

Then Article 26 has to be scrapped. Article 26 to 47 comprises the third part of the constitution. This part begins with Article 26. It states, “The State [that is, not just the parliament, but the ordinance equivalent to a law passed by the president] shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.”  That means the state can’t get away with passing a law. So the ‘shall be void’ part of this article must be slaughtered too.

A case was filed against the same law passed by the parliament in 2003 on grounds of being inconsistent with the constitution. Even though that law had been passed by the parliament, that had been BNP’s parliament, BNP’s law. No one of the present government’s camp murmured the protest   against that law being scrapped. The present government didn’t even approach the Appellate Division after the High Court abolished the law.

Article 102 is the root of all evil. The bottom line of this article is the High Court can provide directives or orders to enforce fundamental rights.  This power bestowed by Article 102 is always being used at will. Even at the start of a writ petition we write, application under Article 102. So this should be abolished too.

In short, the articles of the constitution which give power to the two judges’ pens, that is, Articles 7, 26 and 102, need to be snipped and cut to allow the parliament’s sovereignty to flourish in full bloom.

The reader should not imagine these proposals are unrealistic or baseless. Various amendments in the past have snipped and clipped these articles. Whether the constitution remains the highest law of the land or not, or if there is a little shift in fundamental rights (such as abductions, disappearances, killings, etc), and also if the authority of the judges is reined, all this can be extremely beneficial for the greater interests of the country.

There, of course, needs to be changes in a couple of other places too. But if I reveal all now, then my hopes to assist the honourable government in my humble way, will all go in vain.

Problem no. 2

History is being distorted. Laws on the verge of being passed are not being passed. Someone or the other submitted the draft of a law drawn up by the law commission to prohibit distortion of history.  I can’t find it right now. But as far as I remember, the draft called for a 10-year prison sentence for distorting history.  Former chief justice ABM Khairul Huq had been, and still is, the chief of the law commission when the draft was drawn up. A few more provisions will be added to that draft - persons convicted under that law will lose their citizenship and they will never be given any post.

To make this a full-fledged law, a few appendages will be required. A page or two of correct history will be required for a student of grade three or four to learn off by heart. For SSC candidates, eight or ten pages of correct history. And then for Masters exams and competitive exams for government service, another 100 pages or so of accurate history.

Since distorting history will be prohibited, this law will be a criminal law. And like all criminal laws. It must be specifically clarified, what is the correct history and what is distorted history.

Of course, due to lack of knowledge concerning history, I do not have the audacity to offer assistance to the government in this regard. But there is no dearth of history experts, historians and history pundits in the country. If a big committee is formed and the work divided up among them, it will hardly take a couple of weeks to complete the task. The onerous task of determining whether the accurate history is actually accurate, can be given to justice ABM Khairul Huq.

Let me conclude with some theoretical logic. Karl Marx was basically a historian. In search of the driving force behind the history of humankind and in explaining it, he came up with a history, the belief in which led to worldwide conflict (leftist revolution, civil war, revolutions and counter revolutions, etc) and resulted in sufferings and distress. All this could have been avoided if Marx’s books had been banned from the beginning. That guy’s influence has kept the word ‘socialism’ still alive in our constitution today, albeit with a couple of words added through the 5th amendment.

There are many more such examples of history turning hazardous. That is why accurate history is needed so we do not err.

Needless to say, novels are never accurate. In most cases, novels or literature are above the debate of right and wrong. But reflections of the country, society and the nation are found in novels too. There are pictures based on imagination. So any novel can be read. But beware about history!

* Dr Shahdeen Malik, lawyer of the Supreme Court, is a law faculty at the University of Asia Pacific. This piece, originally published in Prothom Alo Bangla print edition, has been rewritten in English by Ayesha Kabir.

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