SC critical | The Daily Star
12:00 AM, August 02, 2017 / LAST MODIFIED: 03:45 AM, August 02, 2017

SC critical

Full verdict on 16th amendment released

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The government becomes arrogant and uncontrolled in the absence of checks and balances and effective watchdog mechanism, observes the Supreme Court in the verdict scrapping the 16th amendment to the constitution.

"Human rights are at stake, corruption is rampant, parliament is dysfunctional, crores of people are deprived of basic healthcare and mismanagement in the administration is acute," reads the verdict of the Appellate Division of the SC.

The full text of the verdict was released yesterday. The court scrapped the amendment that had given the parliament the power to remove SC judges on the grounds of misconduct or incapacity.

With the development of technology, the dimensions of crimes are changing, the apex court says, adding that the lives and security of citizens are becoming utterly insecure.

"The law enforcing agencies are unable to tackle the situation and the combined result of all this is a crippled society, a society where a good man does not dream of good things at all; but the bad man is all the more restless to grab a few more of bounty," reads the verdict.

"In such a situation, the executive becomes arrogant and uncontrolled and the bureaucracy will never opt for efficiency," the apex court says in the verdict.

It further states, "Even after forty-six years of independence, we have not been able to institutionalise any public institutions. There are no checks and balances, there is no watchdog mechanism at work, thus the people in the position are being indulged into abuse of power and showing audacity of freehand exercise of power."

In the verdict, the apex court also focuses on the state of the judiciary. It says that even in this endless challenge, the judiciary is the only relatively independent organ of the state which, even though sinking, is striving to keep its nose above the water.

"But judiciary too cannot survive long in this situation. Yet, no law has been formulated for selection and appointment of judges in the higher judiciary. There is no scope for imparting training to the judges of the higher judiciary. It is the high time for formulating laws for the selection of the judges and their training so that they can be equipped to face the challenges of 21st century," reads the verdict. 

It states, "Instead of strengthening the judiciary, the executive is now trying to cripple it and if it happens, there could be disastrous consequences."

The government in September 2014 brought the 16th amendment. The amendment was challenged with the High Court. The HC in May 2016 declared the amendment unconstitutional and void. The government challenged the verdict by filing an appeal with the Appellate Division which rejected the government's appeal on July 3 and upheld the HC verdict.

On both occasions, MPs in Jatiya Sangsad launched a scathing attack on the apex court for scrapping the amendment.

In the full verdict, the apex court also focuses on the country's political culture. It says the state power, which is another dimension of political power, is nowadays becoming a monopoly of a few and this suicidal tendency of concentration of power is increasing.

"The greed for power is alike plague, once set in motion it will try to devour everything. Needless to say, this WAS NOT at all the aims and vision of our liberation struggle. Our Forefathers fought to establish a democratic state, not to produce any power-monster," the court observes.

The apex court criticises the last two martial law regimes as well.

It says that after independence, those unholy alliances of power-mongers reduced this country to a banana republic twice. People were bluffed and compromised to legitimise their illegal exercise of power.

"They did not empower the people, rather they abused their position and introduced different bluffing tools (sometimes gono [public] vote, sometimes rigged election and sometimes no election at all!) as means to prolong their power game," reads the apex court verdict.

"Thus as an institution, the notion of 'politics' has been completely destroyed."

It says dirty political practices of those undemocratic regimes to a great extent even infected the civil politics.

"Politics is no longer free, it is now highly commercial and money is in the driving seat which controls the course of action and its destination.

"Now power, not merit, tends to control all public institutions of the country. Irony of the history is that with the unflinching determination and indomitable spirit, we were able to free a country from the clutches of a military superpower but we have been measurably defeated by ourselves in that very free country," reads the verdict.

The SC says even in matured democracy, bureaucracy and judiciary, like in India, there is strong criticism of parliamentarians, parliament, and bureaucracy and to some allowable extent of the judges of the high and lower courts.

The verdict says, "In comparison to the standard of democracy, bureaucracy, freedom of press and rule of law they have been able to establish, we cannot even think to be a match with them in any manner."

Referring to a statement Indian first president and seasoned politician Rajendra Prasad made in Indian Constituent Assembly about the quality of a person who would represent the people to build a welfare state by promulgating laws, the apex court said he must have integrity and  be a man of character.

"Even laws may be defective but if a parliamentarian possesses all the qualities that are required to have with him, the foundation of democracy may be shaped phase by phase. This was the fervent hope of the millions who fought for the establishment of a country where there will be democracy and rule of law. This faith has to be restored, failing which the independence will be meaningless."

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