Take the SC's comments to heart | The Daily Star
12:00 AM, August 03, 2017 / LAST MODIFIED: 02:11 PM, August 05, 2017


Take the SC's comments to heart

It would be a mistake to see it as a judiciary vs. executive conflict

Given the fact that the current government has been able to effectively shut down all critical voices and sufficiently silence the media with highly repressive laws—namely the ICT Act—the full verdict of the Supreme Court (SC) judgement on the defunct 16th Amendment to the Constitution may come to the present rulers as somewhat of a shock. In it the SC made some very pertinent and insightful but critical comments on the present political and administrative situation in the country focusing on the failures of the executive branch. 

Given our political culture and past experience, such comments are not likely to be taken well either by the government or by the party-line bound members of the parliament.

But what the Supreme Court said is far beyond a typical judiciary versus government tiff. In our view, it deals with some of the core values of our Liberation War and the fundamental structures of our Constitution that make Bangladesh a “Republic” in the real sense. The points made by the SC touch on what makes democracy functional and strongly criticise the deviations that threaten our achievements through decades of mass movement and the sacrifice of millions of lives in 1971.

Take the issue of “Check and Balance” as seen within the basic framework of our Constitution and which the SC found to be nonexistent in the present dispensation. Also, the observation that presently there is “no watchdog mechanism” at work.

"Instead of keeping the executive accountable, the legislature, in our case, appears to think that its sole task is to praise the government and criticise whosoever dares to criticise the government.

Like every democratic constitution—and even some not-so-democratic ones—ours is based on a basic system of separation of powers between the various organs of the State: the legislative, the executive and the judiciary. To put it simplistically the first branch makes laws, the second runs the country on the basis of those laws and the third interprets whether the laws framed and the way the executive branch is implementing those laws fall within the scope of the constitution.

Of the three the executive branch, namely the government, is the most dynamic and active. It has to administer the country, collect taxes and provide the basic services to the people and do everything to protect their fundamental rights and provide opportunities for their prosperity. Its functions are highly complex and widespread, thus requiring constant supervision and monitoring. Often a government tends to exceed its remit which necessitates all sorts of restrain provided by the other two organs. 

In a parliamentary form of government, by the very design of things, there is a very close relationship between the legislative and the executive organs. It is only by holding a majority in the legislative branch that a government can be formed, and as such these two branches work in tandem as seen by the regular holding of parliamentary sessions—at least every two months in our case—in which, theoretically, all major plans, projects and actions of the government are scrutinised, a process by which a government is both praised or criticised. In a constitution that does not have Article 70 like ours and where an MP is permitted to vote according to his or her conscience, a parliament can vote out a government if it loses its majority support.

Through the passing of the annual budget after threadbare consideration; its ministry based Standing Committees; examination of the Auditor-General's report; discussion on various bills; the question and answer sessions of the prime minister and other ministers; and, most importantly, open debates on the floor of parliament, the legislative branch is mandated to supervise the executive and keep its actions accountable.

Alas, we know it does not happen like that, and it is this fact that the SC is pointing out.

Instead of keeping the executive accountable, the legislature, in our case, appears to think that its sole task is to praise the government and criticise whosoever dares to criticise the government. The vital discussion on the annual budget has seldom asked why cost overruns and project delays are norms rather than exceptions. Why have scandals in Sonali and Basic banks, or the Bangladesh Bank reserve swindle, or the persistent phenomenon of bank default which seems to be growing every year, never found effective attention in the parliament from our “peoples' representatives” as if it all happened in some other land, not in ours?

If we recall Lord Acton's famous saying that “Power corrupts, and absolute power corrupts absolutely,” then we can clearly see the justification of some other observations of the Supreme Court such as “rampant corruption” and “plague-like greed for power.”

One particular comment of the Supreme Court which our lawmakers are not likely to take kindly to is that our “parliament is dysfunctional.” It is quite possible that all hell may break loose with our MPs accusing the SC of insulting the parliament and trying to undermine people's representatives and thereby democracy itself and the like. 

Yet, this particular comment, as distinct from all others, should lead to a very serious introspection by our parliamentarians because it directly deals with their activities.

Struggle for an effective parliament dates back to our Pakistan days. It took Pakistan nine years to make its first constitution in 1956, and then it took two years to abrogate it through General Ayub's martial law. The first truly free and fair national election in Pakistan was held in 1970, 23 years after its birth, in which Bangabandhu won a majority. Parliament was not allowed to sit as scheduled and the rest is history.

After 1971, we had our first parliament in 1973 but our experiment with democracy was destroyed with the brutal murder of the founder of our state, Bangabandhu.

It was only in 1991, with the fall of the autocratic rule of General Ershad and the restoration of democracy that we relaunched our parliamentary experiment which, we can proudly say, has been in place for the last 26 years. 

However, the sad truth is that we have not been able to establish a robust tradition of contested democracy as we should have had. Much of that time was consumed by boycotts by the opposition that would start with occasional “walkouts” then months of “boycott” and finally “resignation” from the House altogether. Our relentless writings that parliament is the “House of the People” and not of the government and that boycotting it or resigning from it means betraying the very voters that elected them, fell on deaf ears of both the parties that dominated our politics and shared power since 1991—namely the AL and the BNP.

The net result was that without an effective opposition—in fact none whatsoever most of the time—no tradition of debate, accountability or monitoring the government or playing any sort of “watchdog” role developed. 

The parliamentary opposition mostly played the “opposition for opposition's sake” game and always appeared to prefer street agitation to a robust accountability process within the House.

So the Sangsad, instead of becoming the centre point of institutionalising democracy, became the centre point of reckless and meaningless opposition-bashing on the one hand and sycophancy on the other, and never the “watchdog” that it was meant to be.

Normally, many of these points raised by the SC would have been forcefully presented by the media. That situation, I am sad to say, no longer exists. In these circumstances the Supreme Court's full verdict stands as the most authentic and comprehensive tour d'horizon of the present situation. It may be hard to accept, but honest judgements usually are. We hope that instead of a knee-jerk reaction, the present ruling leadership will see the merit of the criticisms made and do their own homework so that all the vital organs of our constitution can work together and establish a functional state under law in this beautiful and extremely challenged country of ours.

Mahfuz Anam is Editor and Publisher of The Daily Star.

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