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07th-May-2016

Judgement has held out a beacon of hope for democracy and freedom

By MAINUL HOSEIN

The High Court Division of the Supreme Court by declaring unconstitutional the amendment by which the parliament claimed the power of punishing the judges of the Supreme Court has asserted the position of the Supreme Court as the guardian of the Constitution.A Special Bench of the High Court Division presided by Mr Justice Moyeenul Islam Chowdhury delivered the judgement while deciding on a writ petition challenging the constitutionality  of the amendment. The two other judges are Mr Justice Dr Quazi Reza-Ul Hoque and Mr Justice Md Ashraful Kamal.Despite the government's absolute control over the controversial parliament the government was advised to take the most audacious decision to change the Constitution once again, this time to deny the Supreme Court its independence. Nothing is surer for destroying democracy than to deny the judiciary independence.Their Lordships observed that to remove a judge byparliament is an accident in history but in most Commonwealth Countries the judges are not removed by the parliament. Their Lordships were highly critical of Article 70 of the Constitution by which a member of the parliament loses his/her seat if he/she votes against  the party line.What the Special Bench has found most inconsistent with the Constitution is that the judges of the highest court shall be at the mercy of MPs.What should be clear to all is that the 16th amendment to the Constitution was brought in to keep the supreme judiciary under threat of impeachment and the government free to do any illegality unrestrained by any constitutional constraint. The expectation was that the Supreme Court judges shall remain ready to oblige the Prime Minister right or wrong otherwise live under the threat of impeachment hanging over them. Previously, the government amended the Constitution to hold general election by not resigning. As a result elections have become meaningless for the people to change the government.At that time the government took advantage of a one-judge majority judgement of the Appellate Division of the Supreme Court which permitted the government not to resign for holding the general election. The eminent lawyers of the country advised the court against the propriety of such decision. Three out of four judges dissented. But to no avail.There is no precedent that under the parliamentary system general elections are held without first dissolving the parliament and declaring the parliamentary seats vacant. This judgement will remain a black spot in the history of our democratic struggle until the judgement is revisited for more careful scrutiny.In effect this judgement of the Supreme Court under the then Chief Justice his Lordship Mr Justice ABM Khairul Haque, who cast the deciding majority vote, disenfranchised the people. Elections have become mostly a violent exercise and there is no way to ensure fair elections. Lives are lost for the greedy struggle of power of others. The election as a democratic institution has been choked to death.Unfortunately, the Constitution was changed again to destroy another vital democratic institution, the guardian of the Constitution, namely, the Supreme Court itself. Some elements somewhere issuing the guidelines for our self-destruction and we are not careful.If the present amendment prevailed the Prime Minister would have all the powers of controlling the government, the parliament as well as the judiciary. To make this to happen is to destroy the democratic Constitution, the guarantees of fundamental rights and the rule of law. The all powerful Prime Minister will be target of all powerful enemies.The judiciary without independence is no judiciary and becomes part of the government administration. The judges will be in all intend and purposes the government officials. We have only to look at such judiciary in socialist countries.In practice nowhere under one-house parliament which is controlled by the government the parliament claims the power of impeaching judges of the highest court. Only where the parliament consists of two houses, as in Britain, House of Commons and House of Lords, it is relied with the power of impeachment of judges with sufficient checks and balances. There is no fear that the wishes of the few will prevail against command of the people.It is of no help to forget that the sovereign people in their wisdom did not trust the government or the elected parliament with the responsibility of safeguarding the people's Constitution. On the contrary they are required to take the oath of office pledging to abide by the Constitution.By not yielding to the power assumed by the parliament  to make the judiciary submissive to the government their Lordships have held up, as the protector of the Constitution, a beacon of hope for democracy and freedom.Let us not deny ourselves the protection of democracy and the rule of law to make ourselves vulnerable to violence and lawlessness. The power itself does not solve any problem, absolute power blinds one absolutely.It is understandable but painful to see the angry reactions of the persons in power to the judgement for protecting the independence of the justice system. We cannot be uncivilised not to know the need of impartial justice.