Appellate Division verdict exposes AL to difficulty
THE Appellate Division of the Supreme Court appears to have made it difficult for the ruling Awami League to use the court of law in implementing its political project as regards rewriting the constitution. Besides, it has indirectly entrusted the AL-led government with the moral responsibility of trying General HM Ershad of the Jatiya Party, a component of the coalition, for extra-constitutional takeover of power in 1982. The Appellate Division's observations on the High Court verdict on the Fifth Amendment to the Constitution, which said the military regime covered by the Fifth Amendment was entirely illegal, came to light on Tuesday. The Appellate Division modified certain parts of the High Court verdict and observed that all actions taken by the regime for 'welfare of the people' were to be exempted from being treated as illegal. Besides, the Supreme Court observed that the identity of the citizens of Bangladesh as Bangladeshis, needed to be retained, an idea much disliked by the ruling Awami League.
The Awami League, which has been giving people an impression that the party is set to change or amend the constitution not as a political project of its own, rather as a legal responsibility to accommodate the court verdict on the fifth amendment case, has been exposed to a political crisis. Because, the Appellate Division verdict in question has on the one hand retained Bangladeshi nationalism – a project inserted into the constitution by the Awami League's political rival Bangladesh Nationalist Party – and has retrieved 'secularism' as a state principle on the other – a principle that the Awami League itself has practically shied away from. The prime minister and AL president said only the other day that her party was not going to delete 'Bismillah' from the constitution, nor was it going to ban any religion-based political party. The positions are completely inconsistent with secular-democratic values.
The Appellate Division's observation that 'all the changes in government from August 15, 1975 right up to the national elections of 1991 were unconstitutional' may have delighted the incumbents; however, the next sentence of the observation must have generated some amount of political discomfiture among them. The court observed that 'the perpetrators of such illegalities should also be suitably punished… so that in future… no usurper would dare to defy the people, their constitution, their government...' The observation obligates them to try Ershad – the only 'illegal power usurper' alive. (Bangladesh does not have any provision for trying anyone posthumously.) But, the Awami League cannot afford to try Ershad at the moment; after all, his party is a major component of its coalition government.
There is, however, scope for the government to seek revision of the Appellate Division verdict, because there are some apparent inconsistencies in the verdict, such as the verdict presses for secularism as a state principle while keeping silent on 'Bishmillah' incorporated into the constitution by the Fifth Amendment. Still, the Awami League should realise that the matter of making, or amending, the constitution is primarily a political process and that has to be done on the basis of political strength and public support of the political quarter/s concerned. The idea of changing the constitution by using court observation could be considered by some quarters as a 'smart political move' that may technically exempt the incumbents from criticism by the political opponents, but such uncalled-for 'smartness' may also push the incumbents into trouble as well, as has happened in the case of the Awami League. The party should, therefore, be well-advised to proceed to amend constitution, if really willing, on its own strength – taking the responsibility entirely on its own shoulders
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