People's Voice
Pursuit of democracy
The elevated ideal of democracy stirred the nation to actualise the long-aspired freedom tiding over the cataclysmic catastrophe in 1971. Much blood has been spilled in the quest of emancipation from bondage. But this blood-bath freedom has not been able to terminate the nefarious manipulation of masses by the Machiavellian coterie. Tony Blair once stated, “Principle without power is futile”. True but politics without principle is barren. The odious bickering for power demolishes the lofty ideals of mutual trust and priceless toleration among the contending parties.
Democracy presupposes presence of mutual trust, culture of shunning gimmick to tamper the election and forging consensus over the national issues. Traumatically the political parties of Bangladesh have not matured enough to conform to these luminous ethos of democracy. The genesis of caretaker government can therefore be said to be an inexorable corollary of the vicious culture of political prevarication to perpetuate the clinging to power. But unless this obnoxious culture of exploitation of election is jettisoned, no methodology can act as a panacea for this macabre malady corroding the state polity.
The incessant political turmoil has further been accelerated by a historic verdict of the Supreme Court invalidating the 13th amendment to the Constitution. The Appellate Division observes this amendment demolishes democracy, infringes independence of judiciary and thereby pulverises the pivotal pillars of the Constitution. The judgment has been criticised not to reflect the popular aspiration and to undermine the quivering political structure of the country. But the courts are neither representative body nor designed to be good reflex of the democratic society. The SC of Pakistan observed, “The court has the right to expound the law in complete indifference to any popular reaction even if the result is disaster” [Federation of Pakistan vs. Moulvi Tamizuddin PLD 1955].
Democracy is kept in abeyance during the tenure of the caretaker government. True that before the 13th amendment to the Constitution, there was constitutional dispensation of interim government. But the pre-amendment interim government was not pari-materia of the post-amendment one. The pre-amendment interim government was interim only for the purpose of holding election but it retained its popular mandate in all other attributes. The fallacy gets crystallised if we look to the unamended Art 72 read with Art 123(3) of the Constitution providing that the election of parliament shall be held 90 days preceding the expiry of tenure of parliament so that democratic continuity of the Republic is not disrupted.
The post-amendment interim government was designed to facilitate the free and fair election within its tenure of ninety days. But the last caretaker government resorting to myriad ruses procrastinated the holding of election and adhered to power for two years. The constitutional checks and balances were shattered when the last caretaker government ruled out the court ruling to hold election within ninety days [Sultana Kamal vs. Bangladesh 14MLR]. Even the constitutional inhibition of taking policy decisions was flouted.
Independence of judiciary is the glittering pearl in the constitutional edifice of Bangladesh which cannot be fizzled out in any manner. But politicization of judiciary shakes the very root of the edifice. To cow down this abominable phantom, the SC has underscored the consultation with the chief justice [Bangladesh v MD. Idrisur Rahman 29BLD (AD) 79]. Pursuant to the 13th amendment to Constitution, the last retired Chief Justice was destined to spearhead the caretaker government. This imprudent amendment further aggravated the position as every government left no stone unturned to place their dear one in the post of Chief Justice by denigrating supersession of senior-most judges of the AD. To curb down these ludicrous supersessions, the SC has recommended selection to the post of Chief Justice to be made by an independent constitutional body and to be decided finally by the president [Hasan M.S.Azim v Bangladesh 31BLD62].
The original Constitution contained total prohibition against the appointment of a judge of SC after his retirement in any office of profit in the service of Republic [Art.99]. The purpose behind this prohibition was that opening up of opportunities for appointment after retirement may serve as an allurement during his service. Subsequently the bar was relaxed by military usurpers in the case of appointment in the office of profit either judicial or quasi-judicial. This distortion opened the Pandora's Box of political favoritism for judges of SC to be appointed in lucrative posts after their retirement. Further aggravating when SC in good many case reported in 49DLR1, 49DLR176, 11BLC339 interpreted the term 'service of the Republic' to include only the service adumbrated in part IX of the Constitution and proclaimed that the holders of the Constitutional posts articulated in Art.147 (4) are not in the service of the Republic and therefore the retired SC judges are not debarred to assume the constitutional posts. At long last the SC declared the distortion of Art.99 illegal and observed that the holders of all offices of the government be it civil, military or constitutional are in the service of the Republic and the Judges of SC are debarred after their retirement to assume the constitutional posts [Rahul Quddus v Justice MA Aziz 60 DLR511].
Democracy without periodical elections is farce of democracy. The Constitution has endowed the Election Commission with the sacred duty to hold free and fair election. The ongoing political crisis emanates mainly from the inveterate distrust in the integrity and power of the EC to discharge its constitutional duties. Therefore there is no alternative to strengthening the EC which only can evade the resort to supra-constitutional stratagem. The government can adopt the model of UK for appointment of election commissioners. In UK there are Speaker's Committee and appointment by the Queen's Address to the Commons. The Speaker's Committee comprises both treasury and the opposition. The established convention is before addressing any name for the appointment in the post of election commissioner before Commons, Queen Consults with every party having at-least two MPs. Thereafter the Speaker's committee secures consensus over the appointment. The process is transparent and arouses public confidence in the appointee.
The writer is Student of Law, University of Dhaka.
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