So, all the govts tampered with the constitution
Courtesy New age 11/5/11
A DISPASSIONATE look at the highest judiciary's verdicts over the past two years or so, in respect of different constitutional amendments, could prompt the politically conscious and democratically oriented sections to conclude that the ruling quarters, irrespective of their democratic credentials and partisan inclinations, have at different times tampered with the constitution only to consolidate and further their partisan interests. The Appellate Division of the Supreme Court on Tuesday, according to a report front-paged in New Age on Wednesday, prospectively declared void the 13th amendment that had incorporated in the constitution the provision for a caretaker government to conduct the general elections. The amendment came about during the tenure of the Bangladesh Nationalist Party-led government in 1996, under pressure from, and upon informal consultations with, the Awami League, which was then in opposition and currently leads an alliance administration.
Earlier, the court also declared illegal the fifth and seventh amendment to the constitution, which came during the late president Ziaur Rahman's BNP government and HM Ershad's Jatiya Party regime. Meanwhile, the court has also observed that the fourth amendment, made during the 1972-75 government of the late Sheikh Mujibur Rahman's Awami League, and the eighth amendment, which came during the tenure of the autocratic Ershad regime, wrought significant distortions to the constitution. It is clear thus that, since independence, successive governments have illegally changed the constitution. In such circumstances, one may very well wonder if the ruling class, given their propensity for unconstitutional and illegal actions, has the moral authority to ask the people at large to comply with the law.
The 13th amendment to the constitution is unique for more reasons than one. First of all, it essentially reflects a deep-seated mutual mistrust that characterises the mainstream political camps. Such mistrust is, however, quite understandable; after all, successive political governments have shown a predilection for tampering with the electoral process by either brazenly using the muscle power or reshuffling the civil administration, which assists the Election Commission to conduct the elections, with people loyal to them. Most importantly, the provision of caretaker government is itself an anathema to democratic principles, as democracy has no place for unelected governance, even for a short period of time. The Awami League and the BNP were well aware as there was reportedly an unwritten agreement that the arrangement would only be for three terms. The apparent objective was to strengthen the Election Commission to a degree whereby it would not and could not be influenced by the government of the day, whichever party it was led by. Regrettably, although not surprisingly, none of the subsequent governments took any effective steps to strengthen the commission. Meanwhile, the provision of election-time caretaker government gained acceptance and confidence of the people at large. Except for the military-controlled interim regime of Fakhruddin Ahmed, all other caretaker governments had significant popularity, because of their apparently non-partisan approach to governance.
One lesson from the caretaker experiment has been that the political governments can also easily endear themselves with the people if they refrain from taking a partisan approach to governance. Unfortunately, the predominant political class seems simply incapable of rising above and beyond partisanship in the conduct of the state affairs. In a further display of crude partisanship, the Awami League, which virtually forced the incorporation of the caretaker provision in the constitution 15 years or so back, is now seeking its removal, with the BNP, which opposed it in the first place, rallying for its retention. This is where the entire issue, although technically legal, becomes political and thus requires political resolution.
The heightened activism of the highest judiciary in the past two years or so seems to have gone generally in favour of the Awami League's partisan interests and it may be quite pleased with the judicial intervention with the political process. However, it needs to realise that such piggybacking on the court for partisan gains could ultimately backfire; after all, its political rivals, if and when they come to power, could try to have these verdicts overturned by the court. Hence, it needs to try instead to cleanse politics and set the rules of the game for democratic transfer of power upon consultations with, and consent of, all concerned. Otherwise, not only the Awami League or the political class but also the entire populace will suffer.
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