''Those who don't want to talk about things like impeachment bill are the ones killing democracy''
Dr. Kamal Hossain, noted politician and internationally acclaimed jurist, is one of the principal authors of the Constitution of Bangladesh. He served as the minister for law, foreign affairs, and petroleum and mineral resources in the government of Bangabandhu Sheikh Mujibur Rahman between 1972 and 1975. He was a member of the Awami League until the early 1990s, when he formed his own political party, Gano Forum (People's Forum). He talked recently to Shakhawat Liton and Rashidul Hasan of The Daily Star on different issues.
TDS: How do you evaluate the latest constitutional amendment that empowered parliament to impeach Supreme Court judges?
KH: The latest amendment, the 16th Amendment to the Constitution, was suddenly made to empower parliament to impeach Supreme Court (SC) judges without having passed any law about the appointment of apex court judges. The government suddenly said they were going to pass a law on removal of a SC judge at a time when parliament's own position was not beyond political controversy.
Unopposed elections of 153 MPs in the January 5 polls may be technically correct as the High Court in a judgement has said so. But everyone is saying that something that is technically correct may not also be politically acceptable.
Why is it not politically acceptable? Because the people of 153 constituencies are told that we have an elected representative. But I cannot feel that I have an elected representative. I have not voted for anybody. No one came to me and asked for my vote saying who he is and what he wants to do. So how can I say that I am represented in parliament? And I honestly say that, given the nine months that have passed, no representative has at all tried to tell us in any form what he is, who he is, and what he is doing?
Parliament is, by definition of the constitution and by ordinary good sense, a representative body because if you have parliament of 153 unopposed MPs then what will happen if the parliament is formed with all 300 MPs unopposed?.
Technically it might be correct. But my point is -- is parliament's composition something that is a technical matter or there also has to be reflection of the basic principle of democracy?
Democracy is government of the people by the people and for the people, not of the technically unopposed persons who have been declared elected by an election commission which, for that reason, has also lost respect of the people.
TDS: What could have the EC done?
KH: They could have said that we will not declare the election results because people perceive this not to be a representative parliament. Their mandate is not just to ensure technical application of the laws but their obligation is to see that the constitutional assurances to the people are respected, not technically but substantially. There is a huge difference between technical compliance and substantial compliance. Any lawyer will tell you this. So we have seen technical compliance, but not substantial compliance.
The Election Commission has the mandate under the constitution to see the substantial compliance in the requirement of a free and fair election.
This is why formation of a strong election commission is very important. The constitution directs to enact a law to pick people with integrity and efficiency to constitute the election commission. But the law is yet to be made.
TDS: What are your comments on the government's claim that it has been working to restore the constitution of 1972?
KH: The government is saying after 42 years have passed that it wants to go back to the 1972 Constitution. But things have happened in the meantime in the country which you must know. What has been the effect of Article 70? When we passed Article 70 in 1972, we had questioned even then about its impact. But it was told that this would not be used in such a way that MPs would feel powerless. We, some of us, addressed this question.
The question is what does 42 years of experience tell us? Don't we need to ask that question? It would have been wonderful if it did not have the effect of making MPs powerless and making them totally subject to full and absolute control of the party in the name of party discipline. I am for party discipline. But in a matter like this you have to be judges of the misconduct or alleged misconduct of the judges. Can anyone do justice, impartial justice, by party diktat?
This is impossible, conceptually impossible even for those angels who are the head of that party; conceptually this is not possible by diktat. Because judgment means that as the judge I have to exercise my own conscience and say I find this charge proved or not proved. So these are matters of basic principles.
India has the same provision. But there has been a lot of discussion. They passed a law in 1968 on Judges' Enquiry Act where they set up a committee of three judges -- one of them a judge of the Supreme Court of India, one chief justice of one of the State courts, and an eminent lawyer. The three members hold a kind of enquiry into any allegation of misconduct and only if that committee finds proof, then the matter goes the parliament. It is not left to the discussion of parliament.
Here we are told that the government will pass that law. I have said if you pass the law what was the hurry of passing the amendment bill?
The 15th Amendment of 2011 had another surprise for us. Despite the revival of Article 12, we saw that Islam was given the status of state religion violating the spirit and principle of 1972 Constitution for which hundreds of people had sacrificed their lives. It was clearly mentioned in Article 12 that state shall not give special status to any religion. But what did we see? Islam was given the status of state religion.
This is a principle which was not there even in the Islamic Republic of Pakistan. This was brought in by General Ziaul Huq in 1977 in Pakistan and which was brought in here by Gen Ershad when he was sinking.
So this was not an issue about Islam verses secular state. This is a matter of this Islam being used in the crudest possible way by those people who were identified as being against people, both in Pakistan and here.
I still think that there are many things in the constitution which are still there which have not been touched. Some may not be touched but lots of others are being disregarded. It's not that the constitutional provisions have been changed but they are not respected. For example, the constitution has said that you should make laws to provide for appointment of judges to the SC and members of the election commission. The laws have not been enacted.
TDS: Do you see any possibility of dialogue on national issues?
KH: Again this is unnecessarily taking us into an area of controversy. Because again, if our memories don't totally fail us, do you not remember that before the election the government and its leaders had said that we are holding this election in this way because there is a compulsion that if we don't hold the election within 90 days there would be constitutional discontinuity. So immediately after this election we will start a process through which we can arrive at a basis for holding an election which can have general participation. They had said this. I would really suggest those who have any questions on that just go to the internet and see what they said.
From the highest level of the government to the lowest level -- everyone said this election is just for a temporary purpose, for continuity of constitution.
Today I am absolutely amazed to see that now they are saying -- no, we will have no dialogue and the other side is talking about holding dialogue.
I am again amazed not only in the context of January 5th election but about the constitution amendment for impeachment [of judges.] When this issue [constitution amendment] was announced, senior lawyers like M Amirul Islam, Rokon Uddin Mahmud, former attorney general Mahmudul Islam and I myself unanimously said that at least let us have a dialogue on the constitutional amendment regarding judges' impeachment.
We were also very much shocked when we found that the so called 15th Amendment to the Constitution suddenly appeared in 2011 scrapping the election time non-partisan caretaker government (CTG) system. All of our views for retaining the CTG system were disregarded. Even the recommendation of the 15-member parliamentary body for the constitutional amendment for retaining the CTG system was ignored.
TDS: The government had cited a court verdict in defence of its abolition of the CTG
KH: Don't blame the court. The court has not said that, given the prevailing situation, you should not try to hold an election in which everyone can't participate. The court had clearly said that two more parliamentary elections may be held under the CTG.
TDS: How dialogue is possible if the government does not admit existence of any crisis in the country?
KH: The government wants us to keep our eyes totally closed, shut our ears, and to make ourselves lose any capacity to learn from our own experience or that of other countries. This is not democracy, this is totally irresponsible exercise of power, and this is violation of basic principles of democracy. This is very very sad. There are lots of sad news in the 42 years of our independence. But I never thought I would see this day where the constitution would be cited, but in a way not respected totally. It is being said -- 1972 Constitution and people are the source of power, without any real respect for the constitution.
I am also very much disturbed by the way the national broadcast policy was formulated. Because again it suddenly came out of the blue. The government claims to be an elected one which I say is not a claim which is not being questioned. Do the people think they have their representatives in parliament? I don't think I have a representative in parliament.
Does the government think they represent this parliament? Is this parliament conducting itself like an elected parliament, passing the law that has been passed -- the impeachment bill in spite of what all of us have said? Let us discuss the issue in the parliamentary committee. I heard something like -- we will not talk with the killers. But those who want to talk in the parliamentary committee are not killers, in no sense. Those who do not want to talk about things like impeachment bill are the ones who are killing democracy. They may not be killing people but they are killing democracy and killing the independence of judiciary. We want to talk to them. But they are arrogantly saying that they will not talk with us.
Today we have a feeling that we don't know whose rights are important. Is it the rights of the people or the absolute power of the government? We see no limits to its power which completely contradicts democracy and the constitution? The very definition of the constitution is that it sets limits on power, power of parliament, power of executive, power of judiciary, and this is separation of power.
TDS: What are the ways, in your views, to get rid of the present situation?
KH: People's unity is very important to get rid of the present situation. If we look back, we see that people's unity has always been the source of people protecting their rights when rights are denied to people. We have a voice, we have the capacity to reach out to each other, so let us stand together, not be blinded by party loyalty -- big or small, our children's future is involved, we owe our duty to our children, we owe our duty to our society, we owe our duty to country, we are not going to be slaves of any party. This is
not democracy.
TDS: Thank you
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