Mostafa Kamal Majumder
The outgoing Chief Justice of Bangladesh Mr. Justice Muzammel Hossain has on the last day of his office on Thursday underscored the need for balance of power between the executive, the legislature and the judiciary for a stable system of governance in the country. Mr. Justice Muzammel Hossain is unlucky he is not being accorded a farewell reception although his junior judge Surendra Kumar Sinha is being given reception as the new Chief Justice by the Bangladesh Supreme Court Bar Association as a matter of convention. The Bar accuses Justice Hossain of taking no step to secure the fundamental rights of the people during his tenure.
But one should be thankful to Justice Muzammel Hossain that at least before leaving office he has said what he thinks is right although as the Chief Justice of the Supreme Court he mostly refrained from asserting this despite having all powers under the sun to make this idea not only heard but also felt and enforced. Due to excessive power and influence the executive branch of the government not only determined the appointment of judges to the High Court Division of the Supreme Court but also their promotion to its Appellate Division and finally the appointment of the Chief Justice. The all-powerful executive headed by politicians in today’s Bangladesh also controls the legislature under the prevailing parliamentary system. The legislature – Parliament – has of late assumed the power to impeach judges. The Appellate Division of the Supreme Court in October 2012 had rejected government’s leave to appeal petition challenging a High Court verdict that declared ‘ineffective’ and ‘without legal basis’ Speaker Abdul Hamid’s (now President) ruling that one of its judges violated the Constitution by making ‘derogatory comments’ against Parliament. However when the amendment relating to impeachment of judges was passed in Parliament and assented to by the President the Supreme Court endorsed the same by remaining silent although in the political arena there was a storm of protest against this move. The presence of the Chief Justice for some reason or the other not clearly known was hardly felt.
Fact remains that the Supreme had protected its own integrity in the late eighties by knocking down a part of the Constitution 8th Amendment Act that had provided for the setting up of High Court benches in the six divisions of Bangladesh. Guaranteeing the fundamental rights of the people is the original jurisdiction of the High Court. The Constitution empowers the highest court also to judge the constitutionality of actions of the executive and the legislature and also to interpret the Constitution. It is on this premise that a number of former chief justices of the country wanted to assert that as the protector and the interpreter of the Constitution the Judiciary is supreme in Bangladesh. A number of giant chief justices of the past on occasions during the last few years wanted to write on the pitiable state of things but then refrained from so doing. God knows if they would do so in the near future.
Flaws in the system can and does actually have dangerous ramifications. The violent political campaigns of today that have seriously affected public life are the off-shoots of constitutional amendments that have clearly alienated a significant section of the people whom the fundamental document is supposed to bind together. Party system is ‘a democratic translation of class struggle in society’, but the system we now have after all these amendments has been interpreted to literally ignore the existence and functioning of some parties which without any iota of doubt represent some significant classes of people.
The political crisis owes its origin to the controversy over the conduct free and fair elections which, again is the outcome of an amendment effected by doing away with the caretaker system for holding elections. The amendment was the follow-up to Supreme Court’s rejection of the 13th Amendment on caretaker government. Fact remains that the caretaker provision was introduced through a broad political consensus achieved in 1996. That consensus did follow a 2-year-long movement involving observance of 173 days of hartal and blockade.
The crisis has deepened to such an extent that the political parties are not tolerating each other. They rather literally fight each other physically. If the political parties vow to eliminate each other, as they are doing now, through violent movement or campaign putting the law enforcers in a nervous situation to maintain law and order, right thinking people cannot but look at the flaws in the system itself. Is our democracy based on secured fundamentals? Many politicians, to emphasise on people’s power, love to make mention of a quotation from US President Abraham Lincoln’s Gettysburg speech – ‘.. government of the people by the people and for the people’ although Lincoln in no way wanted it to be a definition of democracy. And direct democracy by the people, as it denotes, is not possible even in the modern city states of Hong Kong and Singapore. For all practical purposes therefore democracy is a representative form of government where elected representatives of the people form government for a specified term after which there is reelection to maintain the government’s representative character. Representative government loses its essence if the credibility of election is not established and if all parties do not accept election results.
One can argue that in none of the elections held after the restoration of democracy in 1991 the major opposition parties conceded defeat. But one should not lose sight of the fact that despite such stand of the major political parties after the credible elections of 1991, 1996, 2001 and even 2008; their acceptability to the masses of the people gave the elected governments the legitimacy to govern for full terms. None of those governments had to call mid-term elections, not even after the very strong movement of 1994 and 1995 for the introduction of caretaker government for impartial elections. Credible elections give a government such legitimacy that even the most powerful parties cannot challenge or undo.
This is not to say that credible election is not possible without a caretaker system. But in our situation we have failed to create conditions for such confidence to take roots. Had this been an article of faith the movement for caretaker government should not have been pursued with such extreme vigour that it had shattered the system as a whole so much so that all the major opposition political parties had resigned from Parliament and organised agitation by remaining out of the House for more than a year. The better option should have been for a movement to strengthen the institution of election. The turn of events prove that the main problem with our political parties and their leaders is mutual intolerance though there might be difference in the degree of intolerance. And so long as this intolerance persists there is no alternative but to establish adequate safeguards against election rigging or at least make some provisions to ensure that none of the parties have any thing do with the election process.
In other words we should have a mutually agreed and enforceable system which is sustainable and will take care of transition from one government to another without disruption. We have to work not only for the next election, but also to ensure that all subsequent elections are held without trouble and without violent challenges coming to the body politic. We should address our present needs by ensuring sustainability of the system and mutually accommodate each other. If constitutional consensus is restored as was done in 1991 classes of people represented by the political parties will still be in endless struggles but those will be within a democratic framework. If the party in government is pledge bound to and actually does rule with the willing consent of the opposition there is no need for the latter to opt for disruptive political programmes. We have seen after the referendum in Scotland the separatists have not stuck to their guns. They have accepted the people’s mandate. Our political parties should also submit to people’s mandate. An overriding people’s mandate again cannot be reflected without a participatory, transparent, and credible election. Our leaders should trust the people and relax and allow the people to relax in turn. They should tune their short term gains to long-term sustainability of the system, or else they won’t be able to even make their short term gains secure. This is possible only when the Constitution ensures sustainability of the system. The Supreme Court and the Chief Justice of Bangladesh have a great role to play to strengthen the constitutional elements of sustainability as against the elements of unsustainability. We hope the New Chief Justice of Bangladesh shall be up to this supreme test.
(The writer is editor, GreenWatch Dhaka)
