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Political legitimacy to be resolved politically: No easy escape

By MAINUL HOSEIN
21st-Jun-2014       
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This time the government of Awami League has done the most daring thing by disenfranchising the whole nation to claim itself to be the elected government of the people.No political dispute should be taken to the judiciary for an easy solution. It is no good asking the judiciary to solve a political problem which the politicians should solve.Rightly no opposition political party, including the major opposition party did not choose to take the issue to the court seeking any finding or observation. No senior lawyer also did take any such case thinking it is not right for the judiciary to get involved in this nasty political controversy.  This is the second time such an embarrassing situation was created for the judiciary. The first time when it was urged to decide the rightness of politically decided issue of election time caretaker government which led to the complication of no election last January.This Thursday, it appears that their Lordships of a Division Bench of the High Court Division found themselves observing that the uncontested election of 154 candidates cannot be constitutionally questioned.We have to say that we do not yet know the exact language of the observation in this regard. The full text of their Lordships judgement will take time to be available. But in substance that seems to be a conclusion reached in a case challenging the constitutionality of Rule 19 of the Representatives of People's Order by which a person can be declared elected if uncontested. That is the universal position in an individual election contest. But it has to be different when persons in hundreds can be called elected without the voters' participation altogether.The words of the Constitution may not be enough, the interpretation may vary—it being a highly political question of legitimacy of the government. In the absence of public support as is expressed through votes no government will be recognized, within or outside the country, as having the popular mandate or legitimacy to govern. Circumstances may compel even an illegitimate government to continue in power and others may not have no choice but to deal with it. But political legitimacy has to be politically seen to be established. There is no easy escape from it. When we talk of acceptability of a national election we are talking of the right of the whole nation and not of any political party or leader.It is to be made clear that the conclusion reached by a Division Bench of the High Court Division is not final if the petitioner goes before the Appellate Division of the Supreme Court by way of appeal.So, our discussion has to be in very general terms involving the broad principles showing due regard to their Lordships and the people's interest aroused. The broad distinction we are making by saying that a political question has to be decided politically. The judiciary should be shielded against such political controversies.The serious constitutional issue is if a few can get away with denying the voters the right to participation in the government and can still be said that the basic democratic structure of the Constitution has not been infringed and hence not  unconstitutional.There is no way that the political controversy over the last general election can be resolved other than through political ways.The present crisis concerns the people's sovereignty. It cannot be accepted that the country belongs to the people but only a few can make the voting power of the whole people nugatory by engineering voter less elections. If 154 can be elected without voters' participation then the next time under a different situation all the seats of the Parliament shall be arranged to be filled uncontested. We shall have the election engineers and not the Election Commission for declaring election results of voter less election.The nation is being asked to live with the brutal contradiction in which the country belongs to the people but the government is owned by the few to serve the few. Such a terrible imbalance amidst the nation has made our future not only uncertain but filled with imperilments. The saddest aspect is that in the country that was freed by the people's blood and tear, how a few can be found easily ready to give up their beliefs and principles only to advance their small personal interest when it is pitted against larger national interest.Surely, the nation is going through a dark period of the crisis of conscience.

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