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COMMENTARY

No head above King

The shackling of the judiciary?

MahfuzAnam
Do any of my readers
remember a brilliant film of the '50s on King Chulalongkorn of Siam (today's Thailand) called "The King and I"? In it the King finding the English governess he hired for his children's education to be much taller than him says "No head above King" and forces her to be on her knees every time she speaks to him.
In Bangladesh we have known for a while that there can be no individual head above that of our prime minister. Not only in terms of power, God forbid, but also in terms of
personal fame (remember Prof Yunus). This we have known and have been
living with. But from yesterday we have been clearly told that there cannot even be any “institutions" higher than our prime minister.
On Wednesday our parliament voted unanimously (it was such a brilliant piece of legislation that there was not a single MP who thought otherwise and this in itself speaks volumes ofthe 'democratic culture' within that august body) to empower itself to impeach judges.
Let's not fudge and play games with what “empowering the parliament" really means.
As a system ours is supposed to be a cabinet form of government in which all its members are “equals’1 with the prime minister being the" first among equals". To be fair to Sheikh Hasina, it has never been so. Since the restoration of our parliamentary democracy in 1991 we have kept only the "first” and done away with "among equals" in defining the power of our PMs. So the cabinet has never or remotely been an independent body, and always acted as a "rubber stamp” whose raison d'etre is only to “endorse" (don't even think of using the word "approve") the leader's wishes and never to debate, discuss, suggest alternative policy direction, and "unthinkably" challenge so that the best of a "collective mind" emerges as a policy. A "collective mind" as opposed to the leader's mind? How dare!
However flawed (and it was fatally flawed in terms of continuous boycott), we did have a robust parliament not, regrettably, in terms of lively constructive debates and much needed pro-people legislations but as a vociferous critic of the government through speeches, walkouts, press conferences and street activism. Even boycott, within a limit, had some impact of alerting the public on issues. (Continuous boycott ruined everything).
In the present parliament all that is gone. With an opposition sharing cabinet berths (making it the only such parliament in the world), the lines between the "Treasury and the Opposition" benches are totally blurred, making a mockery of the parliamentary system and also of the spirit of our constitution.
So the only possible "head" above the "King" could have been an independent judiciary which has now to genuflect itself before the mighty executive.
The question naturally arises as to why the 16th Amendment and why the parliament needs power to impeach our Supreme Court judges. What has happened to the higher judiciary that the parliament needs such drastic power to intervene? Has our apex judiciary proved to be so immature, so mired in self interest, so devoid of principles, so untrustworthy and so utterly incapable of mending itself that it cannot protect its own dignity by exorcising itself of “rotten apples", and that an "outside" body like the parliament needs to come into the scene to keep the judiciary 'pristine'?
The real reason for Wednesday's amendment, we suspect, is to keep the judiciary under political control. What happens when the judiciary is under political control? It becomes a "politicised” judiciary instead of an independent one. What happens when the judiciary becomes politicised? You do not have courts and instead you have "kangaroo courts"? And what happens when you have "kangaroo courts" dispensing justice? You have the "rule of the jungle" replacing that of the civilised world, of which till now we are a legitimate claimant to be a part.
Once again our constitution has been changed in a fundamental way without much ado. Even the sham of public discussion for the 15th Amendment did not take place this time. The 16th Amendment is a fundamental change because it deals with making a vital "organ of the State", like the judiciary, subservient to another, the legislative which is now under total control of the executive branch. So in the name of bringing the judiciary under the control of the parliament, it is being brought under the control of the executive. The manner of “passage" of the 16th Amendment itself is the biggest proof of this reality.
One of the arguments given so far is that such an amendment will restore the 1972 Constitution. How can that be an argument by itself? Bangladesh is now 43 years
old. This near half-century of independent existence has given us enormous experience to learn from. Everything about the '72 Constitution cannot, by definition, be sacrosanct. For example, the new provision that any martial law imposition will be considered a treasonable act and can be punished at any time in the future. This was not in the 1972 Constitution and has been added in 2011, we think very correctly, in light of the experiences of military takeovers in the intervening years. Would it be wise to do away with this very important and relevant change in the name of restoring the 1972 Constitution?
Another example is the nearly 50 articles including the preamble that have been made "un-amendable". Meaning it is beyond the power of all future parliaments to change these provisions.
This is in total contradiction to all democratic principles. If “People are the repository of all power", which we believe they are, then how can one parliament (the immediate past, the 9th Parliament adopted this) deny the "right" of all future voters and the parliaments that they will elect, to enact laws as they see fit?
The very idea of "un-amendable" articles implies “superiority" of the 9th Parliament over all future voters and parliaments. We are in fact "dictating" to the future generation, which we do not have any legal and moral right to do. This is absurd and a fundamental "deviation" from the 1972 Constitution.
So the "love" forthe 1972 Constitution is a farce and being used to cut the only head left that could be above that of the "King".
The other argument that such provisions also exist in other democratic constitutions is just as lame as the one before. In which way, other than those of our MPs being elected (leaving aside the 153 "elected" without a vote being cast) is our parliament similar to the rest of the world's? Have their parliaments been crippled by mindless boycotts? Are the opposition as vilified and their leaders called derogatory names as have been done by both sides and both leaders in our parliament? In other parliaments the “whip" is confined to only money bills and not to every vote. Does Article 70, preventing “vote against political parties", exist in other parliaments? In which other parliament do we see only vilification of the other side in the name of "point of order" or "budget discussion"? Every other parliament can be said to have developed its own parliamentary practices. What practice can we claim to have developed except that of mutual abuse? Which parliament ever had more than 50 percent of its members " elected" without a single vote being cast?
The most significant fact is that our parliament does not permit voting outside party lines. So when the majority party will decide to impeach a judge it will be a partisan decision and it will always be carried out. And since we know how a party decides we can easily guess how and when to impeach a judge will be decided upon.
So the 16th Amendment will do nothing but bring the higher judiciary under political party control. This will be suicidal for an independent judiciary and for democracy. The only chance still left to save us from such an eventuality is the framing of a separate law which will make this amendment operational. That law must be prepared after a thorough and genuine discussion with the legal community to ensure fair and transparent investigation of allegations against judges which can be done by involving the higher judiciary as is the case in India, Canada, South Africa and other countries.
This elaborate piece is to impress upon the executive branch and the parliament that utmost care should be taken in framing the relevant law.
The wrtler is Editor and Publisher, The Daily Star.