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23rd-Mar-2016

Breaking constitutional oath is like denying allegiance to Bangladesh

By MAINUL HOSEIN

The Chief Justice Mr. Surendra Kumar Sinha tried to remind the two ministers now facing contempt proceedings of the danger of violating their constitutional oath of office. To be honest, many ministers do not care to be conscious that they cannot remain ministers by violating their oath of office to preserve and protect the Constitution.Our history of political turmoil is that ministers are not used to take their oath of office to preserve and protect the Constitution seriously. The solemn oath of office for the  Prime Minister and ministers is the same and not respecting the same means, apart from denying his obligation to protect, preserve and defend the Constitution, disowning his true faith and allegiance to Bangladesh, his pledge to do right to all manner of people according to law without fear or favour. So anyone who breaks his oath of office also breaks faith with himself and the country.In our country we have to be cautious while hoping that the Constitution is safe in the hands of politicians and they will protect the Constitution. Because power corrupts and to politicians it is not unusual to manipulate the Constitution to concentrate power to remain in power.It cannot be denied that all right minded persons are deeply concerned about the present indications as a real threat to the democratic Constitution. Already one of the basic structures of our democratic Constitution, namely, free and fair elections for public offices, are losing their relevance. The erosion of the Constitution is happening before our eyes.The constitutionality of the power of impeaching Supreme Court judges by the one house parliament monopolised by the government should be seen as a clear usurpation of the independence of the judiciary with a suicidal motive. But this issue can be decided only by the Supreme Court. In our view by this step the government is violating another basic structure of the Constitution. The Supreme Court has held that the separation of powers is a basic structure of the Constitution. If the executive branch can keep another branch, the judiciary, at its mercy then the constitutional injunction against interference with the separation of powers is denied.   The nation building political leaders everywhere do their utmost to uphold the sanctity of the Constitution by observing it carefully. The democratic Constitution is for making safe political continuity through peaceful transfer of power. True political leaders know more than many others how important it is for the government to obey the people-given Constitution for peace and order in the country.A government that violates the Constitution encourages others also not to respect the Constitution. The political leadership has to know it leads to anarchy in the country. Only the shortsighted leaders will not care about long term consequences. Their leadership is not even safe for themselves.It is true in many countries that the ministers, whatever be the language of their oath of office, tend to regard the Constitution as needed for protecting them in power and not feel bound by it. They change it at their free will to suit their convenience. It is considered right by them even to go to the point of replacing the people's Constitution by one of their own forgetting that once the Constitution becomes a personal matter of the rulers the constitutional legitimacy is gone. The power struggle begins for power to prevail. Bangladesh itself has a bitter history.A legitimate government derives its authority from the people's Constitution and the fundamental rights guaranteed for the individuals by the Constitution must remain inviolable in the hands of the government.The real protector of the Constitution is the judiciary headed by the Supreme Court. Our Constitution has trusted the judiciary with the power of declaring any of the government acts illegal or unconstitutional. With this power of the judiciary, it protects the constitutional system of democracy and the rule of law. So it is imperative for the judiciary to be brave and vigilant if the Constitution and democracy under it are to be protected. The judiciary under democracy is an international force, not just the people's power. It is this judicial prerogative to decide what is unconstitutional being in conflict with the Constitution that protects the supremacy of the Constitution.