A Blip of Hope in the Valley of Despairs Mozammel H. Khan

A Blip of Hope in the Valley of Despairs

Mozammel H. Khan

Published on April 18, 2007

�Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind,� reads the preamble of the constitution of the People�s Republic of Bangladesh. It further continues, �this Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void.� In the backdrop of the alliance government�s incessant move to politicize the judiciary, the recent epoch-making judgement of a bench the High Court only reaffirms the supremacy of the constitution as embodiment of the people of the Republic. In their judgement delivered on August 29, 2005 the honourable judges have declared the fifth amendment to the constitution illegal, meaning the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem, and Major General Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.

In the opinions of the constitutional experts, with the exceptions of those who are either attached to or are obliged to portray the stance of the BNP, the historic judgement has constituted a far-reaching milestone in the nation�s stride for constitutional rule. However, the knee-jerk reactions of the government leaders, especially those who belong to BNP, were both contemptuous and devoid of any logical cogency. Their reactions, on the one hand, included an attempt to absolving their founding leader from the declaration of martial law while, on the other, terming the judgement as �valueless�, �a small part of a large conspiracy� and so on. The verdict included the observations that martial law as a whole was illegal and unconstitutional and all the actions, laws, and rules made under martial law were illegal. So the changes of the governments between August 15, 1975 and before the national elections of 1991 were not carried out constitutionally.

The BNP leaders in their reprehensions failed to recognize the rudiment fact that the verdict of the high court was pronounced neither in response to a writ petition by the AL nor the verdict was a political statement made by any AL leaders. The observation is made by the nation�s highest court whose principal responsibility is to interpret the laws and the constitution of the Republic. Transference of the responsibility of the declaration of martial law to some one else does not exonerate any of the three rulers, as quoted in the judgment, regardless of their political affiliations, from the delinquency of promulgation and subsequent execution of the �illegal laws and rules�, of the said period. The BNP leaders also failed to take into cognizance of the fact that the so-called �sepoy mutiny�, a barbaric act to say the least, or the �referendum� of legalizing an extra-constitutional rule, as indicated in the verdict, is not neither a defined nor a recognized constitutional process. In fact, the current BNP, though founded, in the cognizance of the verdict, by �an illegal� ruler, does not owe anything to his legacy as far as its assumption to the State power at this time is concerned. It could have taken an additional solace from the further observations of the verdict that underscored, �although all government activities between August 15, 1975 and April 9, 1979 have been declared illegal, the history cannot be altered. Many of these illegal acts were done in the public interest. From this perspective, the court 'condones' some of these actions, including the orders cancelling the fourth amendment to the constitution, which could have been done in line with the constitution.�

The government had the much-desired opportunity to bolster its faltering image through its absolute indifference to the contents of the verdict since it did not order the government to do anything other than handing over the Moon cinema to the petitioner within a specified period of time. Instead, the government went out of its way to obtain a stay order at midnight, raising the natural query, on the one hand, of the importance of the verdict in the current functioning of the Republic, while on the other, if similar access to the chamber judge could be availed by any other citizen of the Republic at such late hours of night. The law minister, who only on the other day termed the martial law as the �laws of the jungle� now took another U-turn and termed the verdict as �valueless�, a highly contemptuous remarks from the government chief spokesperson of the rule of law and the sanctity of the judiciary. According to the news report, the government was looking into the background of the judges whose bench pronounced the verdict. The news report was proven to be true on the following day when, surpassing all records of impropriety, the government sent its Special Branch officials in the nation�s highest court who reportedly insisted to meet one of the justices while he was the midst of a hearing. In spite of attempts at dissuasion, they had their way as the judge came down from the bench to move to his retiring room for a short while and talk. What could have been a more exigent situation that warranted a suo motu order from the Supreme Court?

As reported in the media the government proposed to provide gun men to the judges, apparently to ensure their security, an unheard of phenomenon in any State, failed or (un)failed. The verdict of the judges was merely an interpretation of the constitution and as such did not involve the indictment or acquittal of any living persons. If it was so, what would the identity of the potential perpetrators who would be emotionally aggrieved enough to mount any attacks on the life of the sitting judges of the nation�s highest court? Even during the tenure of the past government, when one after another, nine judges of our highest court felt �embarrassed� to hear the appeal of the self confessed killers of the nation�s founding father, none of them ever felt threatened to seek any protection from the law enforcing authorities to ensure their security.

Over the last four years of the alliance rule, our judiciary, the last hope of the citizens of a free society, has taken the worst hit in terms of downright politicization, albeit not a single organ of the State has been left unscathed. The current verdict of the high court, notwithstanding the fact that it is very much academic in nature at this time, has emanated a blip of hope in the valley of all out despairs, handing the nation an acutely needed opportunity to re-establish its faltering image to a certain degree, at both home and abroad. However, the government�s hasty actions and the furies of its leaders signal that it is all out there to undo it.

Dr. Mozammel H. Khan is the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh. He writes from Toronto, Canada.