The Judiciary and the Constitution

The Independent, May 21st., 2011
As I see it Column
M. Serajul Islam


There are many things happening in politics of the country that are creating more conflict than resolving any. The Supreme Court has entered into the fray. In fact, it has taken up the task of showing the politicians the road to the future of politics in the country.

All would be fine if the people had been prepared to accept the court for the role that they are now playing. There have been public expressions, some even from ruling party parliamentarians, on whether the judiciary has the right on its own to decide on the Constitution or constitutional issues and amendments. The parliamentarians feel that these issues are within their competence because they are the elected representatives of the people that the judges are not.

Judicial intervention is coming in the context of politics of conflict in the country that is going from bad to worse. A leading lawyer of the country congratulated the present government for consulting all shades of opinion on constitutional amendments. He was correct but only partly.

The Special Parliamentary Committee on constitutional amendments offered the BNP to name a member to this committee that it later increased by one more. The BNP declined to sit on the committee claiming that the style of AL’s politics made it futile for them to be a part of it for their opinion would not be heard anyway.
The BNP’s refusal thus takes away from the work of the committee a lot of substance for consensus that is critical for bringing the changes. The BNP represents at the minimum 34% of the voters of Bangladesh who voted the present government to office. Realistically, with AL’s failure to deliver on its election promises, that percentage of BNP’s hold on voters must have increased.

Hence, even if one is to accept the ruling party’s claim that the BNP is at fault, the fact remains that whatever amendments are made to the Constitution, a large number of the people would not be a party to the amended constitution of the country unless the BNP is a part of these amendments despite the committee’s consultations with many stakeholders.

The Court emerged in politics at this critical phase in the country’s politics where consensus building that is of critical importance for constitutional amendments is difficult to contemplate let alone achieve. In this context, concerns have been raised in many quarters on whether the judiciary is helping in consensus building or strengthening the partisan politics that is destroying Bangladesh’s future.

One issue of concern amongst many with the court’s engagement with constitutional issues is its recent ruling on the 13th Amendment. In a majority decision taken with the just retired Chief Justice in the chair, the Supreme Court declared the 13th Amendment of the Constitution, that inserted in 1996 the system of non-party CG, as illegal. The Court however ruled that the next two elections could be held under the “illegal” system and gave the parliament “liberty” to make amendments to it!
The ruling remained silent on what would happen to the present government after declaring the system that elected it as “illegal “ nor how elections under an “illegal” system would give legality to the next two elections . The court has created contradictions and confusion at a time when the country is yearning for the contrary.

The two mainstream parties have interpreted the court’s ruling to suit their own agenda. The ruling party, even before the court’s ruling, had stated publicly that it wanted the CG to stay with amendments. In fact, some of its leaders said they wanted the CG system to be there for two more elections before it is scrapped. The BNP stated categorically after the ruling that it would not go for the next elections unless it is held under the CG. The BNP’s stand has been enforced by a subtle change of position by the ruling party after the court’s ruling.

The Constitutional Committee, that in reality reflects the views of the ruling party, said very recently that it is considering alternatives to the CG system or to modify it in line with the decision of the court. Quite understandably, the BNP is apprehensive that the ruling party is thinking of bringing those changes to the CG system that would place it better in contesting the next elections, an opportunity that has come its way as a result of the court’s ruling.

The way the judiciary has dealt with constitutional issues in general also adds to the apprehensions of the opposition. The issue with the 5th Amendment with which the court set the ball rolling was the outcome of a plaintiff’s attempt to get redress to a cinema hall that the High Court had used to declare the whole 5th amendment void. It directly affected the BNP. As the BNP was in office at that time, it appealed to the Supreme Court where it was kept pending till the end of its term. The AL activated the appeal soon after coming to power in early 2009 and the Supreme Court upheld the High Court’s ruling.

The ruling on the 7th Amendment is also the outcome of a move by the ruling party. In fact, the whole focus on constitutional issues by the judiciary has some political overtones. The Court’s rulings have all also gone against the BNP creating a fear in the latter that the ruling party is using the courts against it. In fact, the BNP acting General Secretary has accused the ruling party of “burying” the judiciary by misusing its executive power.

Perhaps it is just coincidence that most of the judiciary’s rulings on constitutional issues have been those that leaders of the ruling party expressed in public. Nevertheless, the courts should have seen this and done something about it. The highly partisan political environment of the country is no secret to anyone. It is natural, therefore, that the BNP will not see the similarity of thinking on political issue between the judiciary’s rulings and that of the ruling party as coincidence.

The court’s ruling on stopping extra-constitutional interventions in future by constitutional provisions has also likewise raised questions because these uphold the views of the ruling party. Those who question the ruling feel that when the military intervenes, they do not even think that there is a constitution.
They also feel that the only way to keep the military from usurping power is for politics to develop to the level where the need or even the thought of such an intervention would be considered absurd. That is hardly the case in Bangladesh because its politics is what creates the condition for extraneous interventions. The court could have focused on this aspect instead.

The rulings of the judiciary on constitutional amendments are dividing politics further instead of uniting it instead of helping Bangladesh’s political development upon which Bangladesh’s future depends.

The writer is a retired career diplomat and a former ambassador to Japan.