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Friday, April 19, 2019 07:22:34 PM
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Special issue on 38th anniversary of the New Nation

Bangladesh has not been freed for people not to be free

By MAINUL HOSEIN
19th-Jun-2017       
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It is forgotten by those in power that their own legitimacy as the government depends on acknowledging by the Supreme Court because the guardian and protector of the Constitution is the Supreme Court only if it is challenged. Executive branch of the government is not all powerful as those not used to democratic process believe. An effective judiciary has become urgent for eliminating the system of plundering by the few at the cost of miseries of the general public. The plundering and looting of public money as well as robbing of banks has become so easy because the rule of law is ineffective against the powerful ones. But that is not enough, the judiciary must be made submissive so that the illegalities of the government cannot be exposed and annulled by a court of law. The need for meaningful election has been denied.  Thus there is no meaningful parliament. It all means our people will have to start their democratic struggle all over again. The people's leaders do not need public trust. They are not bound by their past commitments. They themselves are the people. 
The liberation war that was fought with India's help made our leaders soon revolutionary forgetting their past struggle along with the people for democracy and freedom. In Pakistan days we fought and suffered for liberating democracy for people's freedom. But our liberation war achieved liberation of the country and not victory for democracy.
Bangladesh was expected to be an ideal democracy for others to envy. The founder of Awami League Mr. H.S. Suhrawardy was an example of democracy in practice. It is our shame we have failed. But we must not live with the failure to exhibit us as an incompetent people.
I find it extremely disappointing that in free Bangladesh our people will have to start all over again to live in freedom and justice. We cannot accept that we freed the country not to be free ourselves.

The original 1972 Constitution commanded the judiciary to be independent. But politicians did not act to make the judiciary independent. Both Awami League and BNP followed the same policy to have party supporters as judges. The appointment process is a secret process between the President and the Chief Justice. Our politicians could not see that written words are not everything for constitutionalism. Constitutional conventions are also to be followed to make the Constitution work. The need for independent minded judges has been hardly a consideration for the need of independent judges.
Despite such flaws, we are lucky to have many judges who are brave and impartial in doing justice. They are the nation's hope for protecting our freedom. They are fighting not to make the country a police state.
The process of appointment of judges as laid down by Article 95 of the Constitution is that the President in consultation with the Chief Justice will appoint the judges of the Supreme Court. There continued controversy for a long time on the question of how to execute the meaning of consultation.
Initially some governments entertained the view that such consultation with the Chief Justice was a mere courtesy. Who they choose is the judge. At one time BNP appointed some judges without caring to take seriously the consultation with the Chief Justice.
At that time Mr. Shahabuddin Ahmed was the Chief Justice. He was not an easy Chief Justice to swallow such insult of bypassing him to appoint judges of the Supreme Court. He famously declared himself as Mr. Nobody and refused to administer the oath of office to the newly appointed judges.
Unnecessarily a battle ensued between the President and the Chief Justice. The lawyers took the side of the Chief Justice in defence of his role as the Chief Justice in the appointment of judges of the Supreme Court.
The issue was settled to accept that the consultation with the Chief Justice is incumbent and that such consultation has to be meaningful. But the plan to subjugate the judiciary remained very much alive in some quarters.
The weakness that the lawyers are not for the court but party activists has worked as a fatal weakness for the judiciary.
The BNP government yielded and fresh appointment of judges was made following the Constitution. A serious crisis was thus averted.
To the present genre of politicians making money is more important than who runs the country. This political vacuum for leadership is at the root of the crisis for democracy and the judiciary.
During the last caretaker government an ordinance was passed for the appointment of judges of the Supreme Court on the recommendation of an independent commission. The purpose was to appoint competent judges and save the judiciary from politicisation. The Awami League government that came to power refused to accept the idea and the ordinance never became a law. It is becoming clear, the forces behind the government have not given up the idea of revolutionary politics of BAKSAL days.
Thus, with the conclusion of the liberation war and creation   of new Bangladesh, it is the judiciary that came under heavy assault to deny its independence. The victory of the liberation war is treated as the victory of a military war for liberating the territory of Bangladesh.
The Supreme Court is custodian of the democratic Constitution and protector of our fundamental rights. The denial of independence to the judiciary is the denial of freedom for the people. Where the independence of the judiciary is absent nothing remains of human rights or impartial justice for the general public.
The primacy of the Chief Justice in the appointment of judges of the Supreme Court is still not acceptable. All powers should be concentrated in the government.
The challenge to the independence of the judiciary has gone the extent to make judges of the Supreme Court punishable by the Parliament in control of the government. However, the constitutionality of the law that enabled the government to do so is under consideration of the Appellate Division.
The law for punishing the judges is incomplete and vague. No details have been given for the people to know how exactly the law will be executed. On the face it one can come to the conclusion that if the Parliament so decides the President will be bound to sack any judge including the Chief Justice of Bangladesh. The advice of the Prime Minister will be too obvious.
In the absence of an independent judiciary law will be the police law and justice will be the police justice. No sensible government will feel comfortable under such a system. The people will not have the guarantees of a civilised existence. The chaos and anarchy of an uncivilised existence will prevail. We must not remain meek and mute for that to happen.

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