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Revisiting the judgement on caretaker government is important

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By MAINUL HOSEIN
03rd-Jun-2017       
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The continuing clash between the government and the judiciary to undermine the supremacy of the Constitution bodes ill. The issue of Constitutional legitimacy has been raised by the government in rejecting the Supreme Judicial Council. Though passed by the parliament elected through election in which all political parties joined. Yet the constitutional change will not be treated as legitimate because originally the government came to power by martial law. That should be considered a difficult position without admitting the whole parliament lacks legitimacy.  
The government is on a very slippery slope on the question of its own constitutional legitimacy. No martial law government comes to power on the basis of constitutional legitimacy. But a civilian government has to pass the test of constitutional legitimacy by getting elected in a free and fair election. The government itself knows that the present parliament was not elected in conformity with the Constitution. The Prime Minister herself was frank enough to admit the same.    
The clash with the judiciary is a clash more than with the judiciary. The constitutional supremacy of the judiciary is under challenge. The issue is saving the Constitution, not merely regarding impeachment of the judges by the parliament as unconstitutional.
The clash of the government with the judiciary first started when the government started dragging its feet in for not complying with an innocent order of the Supreme Court to issue gazette notification publishing the service rules for the lower judiciary.
Thereafter, came the issue of sending of lower court judges to Australia and other countries for training without consulting the Chief Justice.  The Chief Justice had to stop.
We have to say that one decision more than any other has emboldened the government to think the Supreme Court is eagerly compliant. The Supreme Court refused the election-time caretaker government holding that even during the election-time no neutral unelected government can be the government.  
Now the constitutionality of the law for impeaching the judges of the Supreme Court by the parliament is waiting to be decided by Appellate Division of the Supreme Court. The High Court Division had already declared the law as unconstitutional.
We find it unbelievable that the government is eliminating one after other democratic institutions and still calls itself a democracy.
The fact is -- it will not be possible to obliterate the Constitution this time. Bangabandhu did it by calling the change a revolution. He changed the Constitution to be presidential one with no room for free press and independent judiciary. But present government wants to be known as a democracy. Besides, this time the judges and lawyers got the opportunity to defend the Constitution. The lawyers and judges are not ready to make justice system die for the politicians to survive.  
The parliament without the opposition is no parliament under the Constitution. Its election is in question. So it is too much for the government not be conscious of its own legitimacy.
It is reported that the Chief Justice will go through the whole Constitution to decide the claim of the parliament the power of impeachment of the judges of the highest court. The constitutional provision that says the parliament will have the power of impeaching the judges of the Supreme Court is to be found in conflict with the whole scheme. Nowhere the single house parliament is given the power of impeaching the judges.
 In Britain, the House of Commons initiates impeachment proceedings but trial takes place in the House of Lords.
The power of the Supreme Court to declare any law passed by the parliament as unconstitutional will be meaningless if the parliament can impeach the judges and the judges have to live in fear of impeachment.
The constitutional protection against violation of people’s fundamental rights will also be futile if the courts are denied independence. The police will be more powerful than the judges and the country will be police state except in name.
The mistake was made by the Supreme Court earlier when by a majority of one, the Supreme Court judges allowed the government to remain in power during election time. Under a parliamentary system, it is so absurd that there will be elections of the parliament without dissolving the parliament. In the judgment, not a single instance was cited where it is practiced.
Now peaceful election for transfer of power remains a far cry. This was a mistaken judgment sending wrong signals to the undemocratic forces. It has to be corrected sooner than later if democracy and the democratic Constitution are to survive. Now is the time to look at the Constitution as a whole the very supremacy of the Constitution is under threat. The government wants to deny the Supreme Court the role as protector of the Constitution.
Revisiting the judgement on caretaker government has become essential to save elections and the Constitution.
No Election Commission can ensure free election with full government and full parliament in power.


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