Have the critics read the judgment? | The Daily Star
12:00 AM, September 07, 2017 / LAST MODIFIED: 01:58 PM, September 07, 2017


Have the critics read the judgment?

The story of the hawk snatching one's ears is well-known. As the story goes, the "victim" becomes so paranoid by a rumour that s/he does not even check its veracity. Unfortunately, the same is happening regarding our Supreme Court's recent unanimous judgment declaring the 16th Amendment unconstitutional. Many ruling party leaders and their beneficiaries appear to be hell-bent on establishing that the Hon'ble Chief Justice (CJ) has, in his judgment, belittled Bangabandhu Sheikh Mujibur Rahman and committed contempt of our Parliament—without even reading the judgment.

It is a matter of serious concern that some of the critics do not stop with criticism of the judgment; they demand that it be scrapped or that the CJ resigns. They also threaten to wage a movement with a one-point demand of the CJ's removal. Any reasonable citizen would be concerned about the way the judgment was unnecessarily politicised.

In support of their claim that the CJ has not adequately recognised the contributions of Bangabandhu in our War of Liberation, the critics refer to, out of context, two sentences from the 799-page judgment. They quote: "No nation—no country is made of or by one person. If we want to truly live up to the dream of Sonar Bangla as advocated by our Father of the Nation, we must keep ourselves free from this suicidal ambition and addiction of 'I'ness. [The suicidal ambition] that only one person or one man did all this and etc."

A careful reader would note the first and third sentences represent a rhetorical general statement. The two sentences quoted above merely represent a rhetorical statement, and in no way intend to diminish the contributions of Bangabandhu. This is clear from the middle sentence, in which the CJ not only unequivocally recognised Bangabodhu as the Father of the Nation, but also expressed his desire to see Bangabandhu's dream of a Sonar Bangla become a reality. In the remaining part of this paragraph, it may be noted, the CJ expressed his frustration that the biggest barrier to the achievement of Bangabandhu's dream has been our sucidal addiction to 'I'ness. In his judgment, the CJ has forcefully argued that achieving Bangabandhu's dream would require our united efforts, rather than sticking to this suicidal 'I'ness.

The misuse of these two rhetorical sentences to create the misleading impression that the CJ has belittled the contribution of Bangabandhu becomes apparent when one reads other parts of the judgment. For example, in page 29, the CJ wrote "... Yahya Khan ultimately gave election which was held in December, 1971. It was beyond imagination of the Pakistani rulers, Awami League headed by Sheikh Mujibur Rahman could secure a clear majority in the National Assembly and Provincial Assembly of East Pakistan ... Yahya Khan ultimately did not handover power ... rather he waged a war against unarmed and innconent people and committed the heinous genocide in the history of the modern world. He postponed the holding of National Assembly and massacred innumerable numbers of helpless Bangalees that led to the declarartion of independence by Sheikh Mujibur Rahman on 26th March 1971." As a humble admirer of Bangabandhu, I find no aspersion against him by the CJ. Those who are unscrupulously trying to find connection of the CJ with Pakistan, should also note the strong language with which he condemned the Pakistani genocide.

One should also note that while recognising Bangabandhu as the declarer of our independence and the Father of the Nation, the CJ has branded the two Martial Law Administrators as usurpers of power. In page 226 of the judgment, the CJ stated, "After independence, those unholy alliances of power-mongers twice reduced this country to a banana republic, where people are seen as commodity which can be bluffed and compromised at any unworthy cost to legalise their illegitimate exercise of power. They ... abused their position and introduced different bluffing tools (sometimes gonovote, sometimes rigged election and sometimes no election at all!) as means to prolong their power game."

Let us now come to the issue of contempt of Parliament. The CJ not only did not belittle it, rather he reprimanded the High Court Division for their snide remarks about the Parliament. In their judgment, the Justices of the High Court Division noted the criminal records of the MPs. They also mentioned that the MPs have been less serious about their law making reponsbility and hence the laws passed by them are defective, flawed and of low standard. The CJ chastised them by saying, "The above observations by the High Court Division regarding the members of Parliament are totally uncalled for and we do not endorse this view at all."

However, in view of the use of "unparliamentarian language" in criticising the judgment and the Judges after the High Court delcared the 16th Amendment unconstitutional, the CJ called our parliamentary democracy, not the present Parliament, immature. It may be noted that Article 78 of our Constitution grants the MPs absolute freedom of speech, although according to constitutional expert Mahmudul Islam, it is not applicable to the Justices (Constitutional Law of Bangladesh, 2012). In addition, the sections 53, 63 and 133 of the Parliament's Rules of Procedures bar the MPs from discussing the conduct of the President and the Judges in the Parliament, defying which they criticised the Judges in Parliament using vicious language.

One cannot help but get the impression from reading the entire judgment that our Attorney General's legal argument before the Court was rather weak, which he tried to compensate by introducing political issues and aggressiveness. Because of this introduction of political issues, the CJ had to address them in his judgment. It may be further noted that the CJ expressed shock at the Deputy Attorney General's strong resentment against some of the Amici Curiae and one of the Amici Curiae's derogatory remarks against the Judges.

To conclude, we are concerned that if the judiciary is pitted against the other two branches of the government, their relationship of mutual respect will be undermined, which will make all three branches weaker. When institutions become weak, the state becomes weak. In a weak state, the citizens are harmed. We must therefore immediately stop this suicidal course.

Dr. Badiul Alam Majumdar is Secretary, SHUJAN: Citizens for Good Governance.

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