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Role of Judiciary in up holding Constitution and Rule of Law

Shariful Islam Selim


No country can realize the ideal of stable and prosperous polity without an efficient and independent judiciary. The role of judiciary in Bangladesh in up holding the Constitution and rule of law has not been impressive. Consequently there is not only frequent violation of the constitution but also a general decline in the integrity and performance of the judiciary, which ultimately affect every segment of the society.

The concept Constitutional supremacy and continuity involves numerous aspects including the judiciary, political parties, bureaucracy, military and other organs of the state and government. Not all the aspects of Constitutional supremacy and continuity are examined in this study.

This article identifies the strengths and weaknesses of the system of Constitution, Constitutional supremacy and role and the accountability of the judiciary. It also outlines the possible solutions to strengthen Constitutional supremacy and role of the judiciary.

Strengths
The constitution of Bangladesh ensures Constitutional supremacy. In addition there are some other features of the Constitution of Bangladesh which strengthen Constitutional supremacy and judicial accountability to ensure Constitutional supremacy as the guardian of the Constitution. An overview of these features is as follow:

1. The Constitution of the People’s Republic of Bangladesh is the supreme law of  the land. This Supremacy is a Special and Unique feature in our constitution. The preamble of the constitution also stipulates its aims and objectives and speaks about Supremacy. The preamble of Bangladesh Constitution has laid down in clear terms the aims and objectives of the constitution and it speaks of representative democracy, rule of law, and the Supremacy of the embodiment of the will of the people of Bangladesh.

2. There is a well-organosed judiciary which plays a significant role in establishing the rule of law and Constitutional supremacy as the guardian of the constitution. This ensures the supremacy of the Constitution of Bangladesh.

3. The latest 15th Amendment of the Constitution of Bangladesh clearly ensures that Martial law or any other unconstitutional way to seat in the government is void-ab-initio and it is a punishable offence.

4. In Fifth Amendment and Seventh Amendment case the declared that all kind of Martial law and extra-constitutional power as punishable and illegal.

Findings

The foregoing study identifies the various incidents and factors which undermined the independence of the judiciary in Bangladesh. The factors which are detrimental to the Constitutional supremacy and continuity and as well independence of the judiciary in Bangladesh have been critically discussed and examined. 

Although the Constitutional supremacy is guaranteed by the Constitution of Bangladesh, there are numerous weaknesses which undermine the Constitutional supremacy and continuity, as well as the Democracy also. Some of my findings are summarised below.

1. Lack of the norms of parliamentary democracy.  The democracy of our country can not be properly nourished, for this the proper democratic culture can not be yet grown up. For these the political parties can not tolerate the opinion of others, and they have existed fraction and lastly the military take the chance.

2. For the lack of a non-partisan strong civil society. A non-partisan civil society, one of the foremost pre-conditions of the success of liberal democracy, which is able to pressure create and bargain and, negotiate with the state without the influence of political parties in favour of the citizen is yet to flourish in Bangladesh. Most of the CSOs, specifically in the post-military phase, are guided by the vision of the political parties, instead of pursuing an independent policy.

3. Lack of bold and independent decisions of the judiciary at the times of constitutional crisis. The role of the superior judiciary at the testing times of the Constitutional crisis in Bangladesh, it has been very disappointing and detrimental to the development of political institutions based on the universal principles of democracy and popular sovereignty. The judiciary has consistently compromised on its own powers and independence.

A consensus appears to be among analysts that judges of the superior courts in Bangladesh, save few exceptions, could not resist external pressure, particularly of executive, and always judged over constitutional questions to appease the government of the day, at the cost of the fundamental rights of the citizens of Bangladesh and surrendering the political sovereignty of the people of Bangladesh.

4. The role of the individual judges in achieving extra benefit by the extra-constitutional government. It’s a strategy by them to take the judges into trap and use them in their own interest. It has been seen in Bangladesh in several times.

5. Lack of the democratic institutional norms and values, and patience to honor others opinion.

6. The Conspiracy of the anti liberation stream by the foreign backed is also one of the causes of such extra-constitutional martial law.  

7. Through out corruption of the politician and executive is also one of the main causes of such extra-constitutional martial law.

8. Lack of cohesion within the ruling political party and the oppositions.

 Suggestions
This study does not deal with all the weaknesses mentioned above. It concentrates only the issues related to the violation of Constitution in the higher level of the state policy. A few initiatives that might be helpful for the improvement of the present condition of Constitutional supremacy in Bangladesh have been discussed in this study. In addition, as part of the initiative, an attempt has been made to question the justification for the omnipresence of liberal democracy as the one and only form of ruling. In respect of the issues, my suggestions are follows-

1. Democratization of the political parties needs to be considered as a major precondition in order to materialize the scope of Western liberal democracy in Bangladesh that was created in 1990. Some measures can be taken, with a view to minimize the malpractices and to strengthen intra-party democracy. This can stable the democracy as well as the Constitutional continuity and supremacy. Without democratic government the constitutional supremacy and continuity can not be maintained.

2. A special parliamentary committee can be formed to examined the constitution and prepare proposal to this effect People expectation. The special committee will work efficiently to establish supremacy of the constitution which will be the embodiment of the people’s will.

3. In the verdict of 7th and 5th amendment case the court declared the extra-constitutional way to come into power as void ab-initio and as punishable offence. And in the 15th Amendment the parliament ensures the constitutional supremacy again by inserting an Article. However, the reality of Bangladesh can be  completely different, if the political parties are not sincere about it.

4. The people of Bangladesh have to play a major role in protecting independence of the judiciary as well as to constitutional supremacy. Public opinion must be sensitive and reactive to any interference in the judicial affairs. The political parties, civil society organizations, bar associations, press and media can effectively and easily mould public opinion in this regard.

5. Independence of judiciary cannot depend solely on the structure of the government and the judiciary’s formal role within it. It depends on the judges’ character also. Judges should develop judiciary as an institution. They must collectively as well as individually resist any external interference in the Constitutional affairs as the guardian of the Constitution.

6. To achieve the independence of the judiciary as the guardian of the constitution and to have efficient judges of integrity, the whole system of the judicial appointment needs overhauling. The system of appointment of judges is of paramount importance to ensure independence of judiciary because it is primarily the human being that makes or mars the institution. The judicial appointment must be made more competitive and more transparent. The executive’s power to appoint judges to the superior courts must be limited.

7. The corruption of the executives and politician must be stopped.

8. The anti-` liberation streams of politics should be banned, the fact is that the ‘anti-` liberation forces are gaining strength in the guise of ‘pro-religious` campaigns and they are widening the national divide. There is another factor that may have the potential to weaken the democracy: the rise of religious fundamentalism, which has foreign backers.

In analyzing the outcomes of democracy in Bangladesh, we need to consider democracy as something multi-dimensional. Democracy should not be treated as a means of political governance only. Whether the current practice of democracy is contributing to minimizing the problems of irrational distribution and marginalization process, is it tolerant to the different ways of life and diversity, is this system of governance ensuring the constitutional safeguards for the minorities, and finally, can this democracy materialize development. All these questions need to be taken into consideration in defining and exercising democracy in Bangladesh.

In spite of several failures in materializing the project of Constitutional supremacy and continuity, if we consider several trends and positive outcomes of the civil regimes, it must be an exaggeration to comment that ‘Constitutional supremacy and continuity has exhausted itself’ in Bangladesh. Though the judicial history of Bangladesh is not so impressive, but some recent landmark judgments has been changed the total view. The political parties must join hands with the lawyers and civil society to “fully secure” judicial independence as to ensure constitutional supremacy. If the current movement of the judiciary and rule of law is succeeded, then, consequently, we will be able to have a new Bangladesh with true democracy, rule of law and good governance. Otherwise the future of the nation may be uncertain.

The Writer is a student of Law, Rajshahi University

14 Jan 2013   08:47:06 AM   Monday
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