Moot point is political leadership

Published as Part1 and 2 in Dhaka Courier, a leading weekly in Bangladesh

27 May-2 June and 3-9 June 2011

In one of the pieces titled ‘State of Leadership: Bangladesh Perspective’ published on 4-11 February in Dhaka Courier, I wrote: ‘Insertion and continuance of Non-Party, Neutral Care-Taker Government through the Constitution (Thirteenth Amendment) Act, 1996 of Bangladesh is not all an achievement for our fledgling democracy; rather it bears a landmark testimony to our overall negative political landscape. Let us very soon also be smart enough in practice to put an end to this very ‘democracy-threatening constitutional arrangement’ and it, at the outset, needs an atmosphere of confidence-building between or among the political parties, which shall have auto-impacts on other sectors including civil societies’. Today it is really encouraging to me that the issue has been sounded boldly by the Supreme Court of Bangladesh, which in a verdict on 10 May 2011( a seven-member SC penal, headed by the Chief Justice ABM Khairul Haque, reached the verdict on majority vote) declared the very act void prospectively and ultra vires the Constitution giving further directions and observations possibly keeping in mind the ongoing political landscape in true perspective that may be summarized as under:

a .Non-party CTG may continue for another two terms for elections to tenth and eleventh parliaments[ although such observations gave birth to a storm of criticisms from different circles including major opposition BNP and leading jurists barristers Rafiqual Haque and Rokonuddin Mahamud in particular; a columnist, Shahedul Anam Khan, in an article 'Moving towards political uncertainty? 19 May 2011, Daily Star, even wrote, 'the verdict was like declaring a marriage illegal, and the three offspring too, yet allowing the couple to produce two more illegal children should the illegally married couple wish to This is carrying us from the zenith of the sublime to the nadir of ridiculous'. Since the focus here is mainly on political leadership, so the matter of criticism is not at all the subject and object of this very writing'. b. no retired chief justices or retired judges of the appellate division of the supreme court should be appointed to the very office of chief adviser of CTG that has meanwhile made judiciary and its prime carriers, judges, object of serious chronic criticisms in various modes and dimensions and it is to be decided finally by parliament (this also upheld unquestionably the very concept of separation of power, which has been put into question differently by articles (3) and (4) because of their pre and post effects although, speaking truly, the highest court of the land, judiciary, itself did not follow this principle rigidly while dealing with the matters of legislature at length) and that d. let Parliament decide their course of actions regarding transfer of power to a caretaker government in a democratic way upholding its elective spirit in line with the Constitution. This is, in fact, a historic judicial venture in its entirety. It is on record that on many occasions when parliament or executive branch of the government got trapped in a stand-off, long or short, judiciary then came forward either to rescue or to show the way to pass through

Therefore, it is very much unambiguous that the verdict contains both directions and observations to infuse into the minds of lawmakers and political leaders essentially that it is one of their high profile constitutional as well as political obligations and responsibilities to see that under all circumstances elective spirit of democratic rule runs properly without any lapse on any ground. There is no denying the fact that the ball remains as usual in the court of politicians and parliamentarians, nay, the political parties to ponder and recast the matter in proper manner and direction. It is indeed a matured, calculated and time-bound judgment. Supreme Court cannot go much more as the subject is very much within the fold of politics and statecraft. Conceptually sovereignty is indivisible and non-transferable but its existence in practice is operative in various modes and magnitudes; hence the proposition is that people are the ultimate source of power of a state, which is run by a government consisting of legislature, executive and judiciary; popular sovereignty lies in people, legal sovereignty rests with legislative(usually called parliament) branch , judicial sovereignty( in terms of interpretations of law and the constitution in particular) is dealt by the judicial branch while sovereignty as whole is applied and exercised internally and externally by the executive branch. In our context, unlike United Kingdom, article 7 of the Constitution upholds the popular sovereignty of the people. Although there is a political maxim about the sovereignty of British parliament that it can do anything it likes excepting making a man a women and woman a man but, in reality, it can never do that and venture to go against the will of the electorate, nay, the people. If it ever dares to do so, immediate response is popular upsurge and fall of the government observed and warned Dicey, a great political scientist, three hundred years ago.

Elections to parliament are decided through party lines with some exceptions and same is an actuality here in Bangladesh in case of local bodies also. Thus, the matter of politics is to be played by political parties and out of the three branches of government two namely legislative and executive remain straight way within the domain of politics and political parties, which are handled by political leaderships. A political party is fundamentally composed of leaderships, organization, program and workers at various levels; therefore, in the end come to forefront are leaders upon who depend the course of politics of a political party, around who rotate politics.

Established proposition in the field of leaderships is that of all forms, types and categories of leaderships, leadership in politics and statecraft may rightly be considered as the most challenging, comprehensive, multi-dimensional and complicated ones; here a leader needs to hold a cavity of unique art of assimilating, aggregating and synthesizing problems and issues, old or new, broadly in national perspectives being alert and responsive to regional and international surroundings and feedbacks.; it is immaterial at whatever layer he works; his basic identity is that he thinks nationally being within the fold of a political party and he , more or less, prepares himself in that directions That’s why a political leader or statesman because of his nature of job, vision and mission ranks high locally, nationally, regionally and internationally

Growth and continuance of charismatic leadership within political parties, If not from the point of view of national image and acceptability, having the predominance of negative elements is a reality and foregone conclusion in today’s Bangladesh [although one may like it or not] and so, Sheikh Hasina, Begum Khaleda Zia and HM Ershad are sole actors and factors, nay, determining barometers in their parties and domains respectively. Even powers and privileges they enjoy emanating from so-called democratic provisions of the Constitution of the party concerned made them virtually unchallenged voice as if hardly there is any difference between leader and party, as if both are mingled into a single one or say more practically party is lost in his/her leadership. In a democracy and democratic rule, parliamentary or presidential or mixed, constant interactions between or among parties, leaders and activists at various ranks and files are considered as conditions precedent. That’s why here arises the most important and undeniable political proposition that understanding and cooperation between apex leaders of political parties in any political landscape in any country or part in the world are vital for survival and continuance of democracy and democratic rule. Absence or short of such environment at the top results in passing negative messages to the ranks and files below who, knowingly or unknowingly, heroically hold fast the widening chasm in varied manifestations; extent of such chasm---- producing a political culture of no mutual trusts, respects and tolerance with its unbridled proliferations to familial to social to cultural to economic compacts---- has reached at a position wherefrom it is today very difficult to come out overnight; even Aladin’s lamp— a magic lamp that had the power to call a ghost to solve any problems faced by Aladin depicted in the famous story titled Aladin’s.lamp-- may not be effective here.

But it’s a Hobson’s choice for us all that reality must be faced realistically, not by any mere whims, emotions and makeshift arrangements. Let us take the verdict as an eye opener; let our political leaders use positively their respective keys of party line approach and stand to unlock the deadlock to come thus to points of agreements and understanding with a view to building a broad-based ‘national consensus’ as the matter at this moment has to be settled not by any foreign hands but by our political leaders--- who are now, as ill luck would have it, standing opposed diagonally to each other and one another on almost each and every issue of local, national, regional and international concerns. It is a golden opportunity to create a frame of mutual confidence, by initiating a broad-based policy of give and take anyhow without any fail (attention to my article ‘three-phase national consensus formula: Bangladesh perspective’, 11-17 March, 20011, Dhaka Courier).

Careful attention must be given to the most challenging issue of the day that If the ruling party wants to retain the system for another two terms then further asking arises how can a balance be stricken between Supreme Court’s verdict and political reality in Bangladesh?. To find a possible dependable and pragmatic solution attempts as under may be accommodated to suit the very purposes

Notwithstanding any logic or emotion perceived or held by any shade of opinions, political or otherwise, it is better to plunge the sub-clauses (3), (4), (5) and (6) of Article 58B from the Constitution( attention to my article ‘Replacing Article (3), (4), (5) and (6) and amending others’,6-12 May 2011, Dhaka Courier).One of the convincing points in support of scraping the clause(6) in particular is that it shall give birth to a very perplexing political landscape if Article 54 becomes operative during the period of the operation and continuance of CTG as the article says: ‘If a vacancy occurs in the office of President or if the President is unable to discharge the functions of his office on account of absence, illness or any other cause the Speaker shall discharge those functions until a President is elected or until the President resumes the functions of his office, as the case may be’. It is another negative scene in our parliamentary democracy that since 1972 no speaker from Abdul Malek Ukil to Advocate Abdul Hamid---because of the common allegation by the oppositions that speaker fails to establish his impartial image for his maintaining strong link, covert or overt, with the majority party/coalition in Parliament-- -has been able to enjoy the confidence of the opposition in Parliament. So, a new political crisis is sure to be born here. It is best for all to stop here at the outset (attention to my article ‘What if Article 54 become operative’, 18, November 2006, Daily Star).

One may even argue in favor of retention of sub-clause (5) but reality here speaks very rough and tough. Because such novel clause (5) stating for a consensus citizen in case of non- availability of a constitutional choice following clauses (3) and (4) in sequence cannot under the prevailing transversely opposed political stands of two leading political parties, Awami League and Bangladesh Nationalist Party along with their alliances, have any mere chance to see the light of the day

Again looking at the revised version of a consensus choice of clause (5) as proposed by Prime Minister Sheikh Hasina [about which she also expressed serious skepticism] it’s a priori to all that fruitful solution cannot be ensured with this, even though it is the best of all from the point of view of stable and sustainable democratic political culture.

On the other hand, the proposal leveled by Begum Khaleda Zia that she would stick to clause (3) and (4) provided there shall be no supersession in appointing the senior most Judge of the Appellate Division of the Supreme Court as Chief Justice of Bangladesh has meanwhile been set aside by appointing Md. Muzammel Hossain as Chief Justice who superseded senior most Judge of the Appellate Division of the Supreme Court Abu Mominur Rahman who also resigned a day after such appointment. Has he not been superseded, he could, as he was due to retire in November 2011, have emerged as the last retired chief justice before the institution of the next non-party ctg in 2014 (because the incumbent chief justice shall retire in 2014 after elections to the tenth parliament). Therefore, ruling party’s mission to appoint last retired chief Justice Khairul Haque as chief adviser of the third CTG appears to be safe and secured accordingly (provided nothing takes place otherwise) despite the fact that Khaleda, calling him a pro- AL Chief Justice, made it clear in unequivocal terms that they will not participate in elections under non-party ctg headed by former chief justice Khairul Haque. It needs to be repeated here that targeting the office of chief Adviser, to our utter surprise and dismay, appointment of Chief Justice through supersession has become a convention since the day of Justice KM Hasan who superseded Bazlul Karim and Ruhul Amin and for whom even age was increased to 67 from 65 by the then ruling BNP in 2004.

Yes, neither BNP nor AL is in a firm position to uphold the principle of seniority in appointing Judges and Chief Justices of the Supreme Court of Bangladesh

BNP, rejecting the Supreme Court’s verdict from its own angles of interpretations and analyses, now stands for a. no election will be held in future in the country without the caretaker government b. a respectable person who will be acceptable to all, specially to the opposition, must be chief of the caretaker government and c. neutral election commission is a must for BNP's participation in the upcoming parliamentary election, where they would not accept present leaderships of the election commission and introduction of electronic voting system. Therefore, the burning issue remains unsettled from BNP’s point of views and stands. Then what is left next? Isn’t it uncertainty charging very high politically and constitutionally?

There cannot be any revival of the immediate past political government in the event of the CTG’s failure to do its constitutional functions within the time limit of ninety day (as proposed by AL during its dialogue with the Parliamentary Special Committee for Constitutional Amendment). If such a situation ever occurs, it can only be compensated by giving further time frame only. In fact, CTG can never be successful if the political parties are not determined and sincere to take part in elections to parliament. It must be recalled again and again that CTG even after the Supreme Court’s verdict is a constitutional answer to a party-run- government for another two terms; hence a party-run-government cannot be a further constitutional answer to the failure of CTG. Only solution under such unfortunate eventuality is the continuance of CTG, CTG and CTG, which is better than anything else.

In such a given situation Article 106 may aptly be applied and to make the application more accurate and specific in our context even a constitutional provision may be formulated to the effect that: ‘At the backdrop of a failure of CTG to ensure a free and fair atmosphere for holding a general election to parliament with the time frame of ninety days and the situation arising there from, President shall, under Article 106, seek an opinion from the appellate division of the Supreme Court, and act thereupon’.(attention to my article ‘President’s use of Article 106:Necessity,limitations and no-limitations, Daily Star, 4 November 2006).

There is no guarantee that, under the given circumstances, a revived immediate past party-run government following the failure of a non-party CTG shall be in a position to create a free and fair atmosphere for holding a general election to parliament. So, logical proposition arises here is: If the failure of a CTG is responded by a revived past party run government, then how shall the failure of a past run government to suit the very purposes of holding elections be met with? Who shall save our hard-earned democracy and democratic rule if we are not sincere and committed enough to do so? Why should we speak ill of others if we are not careful enough of our own ills? If our leaders totally prove themselves helpless to come to a consensus because of their ongoing confrontational politics and stands, above all, personality cult even in the face of such gravest democracy and democratic rule disappearing scene then what remains next for a state if it is determined not to be trapped to step into the landscape of failed states?

We should not forget even for a moment that extra-constitutional grab of power does not occur in a vacuum; sometimes may duly be substantiated with the oft-quoted doctrine of necessity or of efficacy or of both or by the fundamentals of Inductive Logic resting on uniformity of law of nature and law of causations or even taking resort to Shariat maxim that ‘necessity makes prohibited things permissible’. Zia’s taking over, first martial law in free Bangladesh, was hailed, overtly or covertly by a number of political forces mainly from the right wing. Ershad’s martial law in 1982 was supported by AL with a manifested intention and pleasure that it had at least ousted BNP from power. Mere constitutional provisions and protections cannot be an answer to it unless democracy friendly political culture having strong institutions, political or otherwise, is built, strengthened and cemented. Our political leaderships, ruling and opposition including outside parliament, cannot escape their failures to avert the emergence of two martial laws and crises neighboring the Chief Adviser of CTG. Supreme Court’s further declaration of Constitution (Fifth Amendment) Act of 1979 and Constitution (Seventh Amendment) Act of 1986 illegal with some reservations and condonations jacketing martial regimes of Zia[ included also Khondaker Mustaque Ahmed amd ASM Sayeem] and Ershad must be viewed as another eye opener for political leaderships who gathered in a flock causing landmark defections and recruitments, old and new, and consolidated such initiatives and regimes. In a reversal of decision on certain points in the Fifth Amendment, the Supreme Court also upheld the HC’s observation that: Article 150 of the Constitution should be sealed off for ever so that no adventurist may inject unlawful and extra-constitutional materials’ (12 May 2011, Daily Star). Yes, all these happened and are still happening because of enduring extreme confrontational politics, because of politics of double standards, one while in power and the reverse while in opposition.

'Both the Awami League and the BNP ought to have been better political parties by now; both should have demonstrated to the country that they have actually and finally come of age; both should have gone the extra mile to convince the electorate that they have well-defined policies and priorities on offer.

None of these has happened. The Awami League, having made a raft of promises to the nation in the days and wrecks before the elections, has put up a disappointing show. It is not likely to do better than what it has done in nearly two and half years since returning to power. And hence the portents of deepening gloom.

The bigger disappointment for the nation has come from BNP. Every time it has lost an election, it has cried foul and has come forth with untenable reasons to explain its refusal to be part of parliamentary proceedings. Begum Zia and her parliamentary colleagues cheerfully describe the Jatiya Sangsad as being dysfunctional. That is half the truth. The other half is what the nation knows and the opposition does not acknowledge that Parliament does not function because BNP still thinks it can and should overthrow a legitimately elected government through marching on the streets' (Of politics being dysfunctional..', Syed Badrul Ahsan, 18 May 2011, Daily Star). Dr. Kamal Hossain, chief architect of the Constitution of Bangladesh, in his recent talks and interviews with media noted with a great emphasis that the verdict of the Supreme Court has beyond question increased the overall responsibilities of the political leaders to decide as to what do in the right perspective. Most unfortunate for the nation is that today the intelligentsia and other professional bodies are divided sharply along their respective party line of approaches setting aside the necessity for a pool who can dare speak the truth when it is badly needed for the interests of the country. We need light, more and lighter to move on with the head high in pride, not hung down in shames. Therefore, should we also expect of the Supreme Court a verdict declaring the confrontational politics [at the dire negation of the interests of the people and the country] unlawful?

It is one of the basic characteristics of legal sovereignty that ‘no parliament can bind a future parliament’ implying that every parliament is entitled to enjoy legal sovereignty during its longevity. So, regards must be shown to this very anatomy of standing of legal sovereignty; similarly people being the source of popular sovereignty can accept or reject anything if it goes against their wishes in a particular period of time. On all counts and accounts, there cannot be any parliament or law for ever. Everything in the world is time-bound, space-bound even dimension- bound as well. No thought or theory or formula can be everlasting; all moves with time, space and dimension. What is best today might be worst tomorrow and vice versa. What does actually mean by the by words ' defender of the Constitution'? To what extent Supreme Court being defender of the Constitution should or may go is still a very complicated constitutional debate, which has to be settled judiciously and practically so that people must not be under wrong or misunderstood impressions as it is happening at present in Bangladesh. Recent suddenly-cropped up debates in a seminar between barrister Nazmul Huda, former BNP minister, who raised the very question of the power and jurisdiction of the Supreme Court to declare the Constitution (Fifth Amendment) Act of 1979 unlawful and barrister Shafique Ahmed, incumbent minister for law and parliamentary affairs, who unequivocally voiced that Supreme Court is empowered constitutionally to declare any law or amendment illegal even it is passed by the three hundred Members of Parliament provided it stands against the basic spirit of the constitution, therefore, generated a big call to pay attention to this burning issue of the day (Protham Alo, 22 May, 2011).

Further question surrounds us all is that to what extent our political leaders and members of parliament of the treasury bench are truly aware of the fact that: whether a party/coalition-in-power is constitutionally entitled to make and amend law or any one of them without a referendum under a definite article of the constitution if such matter/matters is/are not mentioned in the electoral manifesto before the general elections to parliament?

Yes, our political leaders are not far away from such understanding and realization; some of them are very high in the context of power of understanding, power of conception, power of digestion and power of delivery; but they mostly either hide themselves from reality or play and twist with reality to achieve their immediate gains and goals under the cover of politics and statecraft. Time is up to lift the vein and curtain. Come up, come up, come up O the leaders of the day! sing, sing the songs of people and the country! side, side with them with all dedications and commitments! Ensure, ensure enough precautions against any possible political tsunami! set, set yourselves in the right place of history and be immortal after death, not before death as the practice with a fluid character in essence is on, on in a full swing.

That’s why, being respectful to the observations and flexibility therein as to the clauses (3) and (4) in particular for another two terms, it is better to move for a new clause (2) under Article 58B with the words as: ‘If/when parliament is dissolved anytime before expiration of its term or stands dissolved by reason of expiration of its term, the Chief justice, or in his absence, the senior most judge of the Appellate Division of the Supreme Court of Bangladesh available shall under Article 58B(1)take over as Chief Adviser of the non-party, neutral caretaker government; and then, the date on which a new Prime Minister enters upon his/her office after the constitution of parliament, he/she shall revert to his/her office of the chief justice or Judge of the Appellate Division of the Supreme Court of Bangladesh’. Here neither the ruling nor the opposition has any scope to play any card anymore even it is very much consistent with the direction that CTG for two terms may continue without any change to it if parliament decides so and this may be treated as the best practicable solution under the prevailing conflicting political scene.

Here careful attention may be drawn to the two landmark constitutional provisions one is the President (Discharge of Functions) Act of I969 in India, first of its kind in the history of democratic rule in the world, that made provisions that in case of vacancies of both the offices of the President and Vice President of India , Chief Justice or in his absence senior most Judge of the Supreme Court of India shall take over as Acting President of India(provided it is not also going to be declared by the Supreme Court of India unlawful taking the verdict of the Supreme Court of Bangladesh as persuasive precedent!) and other being the Constitution (Eleventh amendment) Act of 1991 in Bangladesh, second in sequence, which confirmed and validated the Chief Justice Shahabuddin’s taking over as the Acting President of Bangladesh and his reverting to the office of the Chief Justice of the Supreme Court of Bangladesh(if it is not also declared unlawful retrospectively by our Supreme Court!)