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19028On when judges become the enemy of democracy and the people

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  • sohailtaj2008
    Aug 19, 2010

      On when judges become the enemy

      of democracy and the people



      In an earlier article I expressed my distaste for the Acting Editor of Amar Desh, Mr. Mahmudur Rahman, who I felt was intellectually arrogant, pompous and a self-publicist who possessed a knack of popularizing issues through clever editing and presentation.  If anything he is merely a showman who has a gift for selling newspapers but unfortunately not of ideas which takes a much more substantial intellect and character to do with any true success in terms of leaving a tangible imprint on the national consciousness. However, the ruling of the Supreme Court against Mahmudur Rahman for Contempt of Court was an act of utter folly with a bench of `by-chance' judges (who in any other civilized country would not make it beyond the first tier of the judiciary) passing judgment on a `by-chance' acting editor of a popular bangla daily. A clear case of the mediocre passing judgment on the mediocre.


      It is my opinion that of the two mediocrities it is the judges on the Supreme Court who has committed the graver offence by placing themselves above the law and the Constitution. There seems to be no legitimate restraint on the higher judiciary or any avenue for constructive criticism of their rulings nor any redress for their excesses and certainly no possibility of their being held accountable. The foundation of the courts is no longer based on law but purely on political expediency and the whim of the Prime Minister. Let us not be fooled but the Supreme Court is now merely an instrument of executive power and therefore a threat to both democracy and the people. While the judiciary had in the past been the protector of the fundamental rights and liberties of the citizens this Supreme Court is a usurper in that it has unilaterally accorded itself the means to subvert the true meaning of the Constitution (however flawed an instrument) and undermining the rights of the people of freedom of speech, expression and association. Many other rights are likely to be taken away in the coming months simply through legal fiat rather than executive order which had been the preferred tool of Sheikh Mujibur Rahman - soon to be our compulsory or should that be our surrogate father?  


      The Supreme Court being an unelected body cannot make law which is the sole prerogative of Parliament but that is exactly what the court has been doing in the last few months as it impulsively strikes down one Constitutional amendment after another. The courts function is limited to interpreting law and not to annulling laws and constitutional amendments that were validly passed by Parliament. In doing this the court has now become the de-facto supreme law-giver as it now holds more power than even Parliament which is the elected body assigned by the Constitution to do this particular job. Simply put the Supreme Court acting in excess of its powers accorded to it by the Constitution is a threat to both democracy and the people whose rights are now being gradually eroded through legal technicality rather than by open political debate and discussion. The Human Right Commission Chairman Prof. Mizanur Rahman was absolutely correct to lament that the Rule of Law does not exist in Bangladesh . More precisely the Rule of Law was murdered by Sheikh Mujibur Rahman but then resurrected by Ziaur Rahman after the former Presidents assassination in 1975. The Rule of Law was then emasculated by H.M Ershad during the 1980's and was then again rendered comatose during the period of democracy from 1991- 2008.  Finally the Rule of Law is having a wooden stake driven through its heart by this present Supreme Court headed by Chief Justice Fazlul Karim – a name that will become synonymous with infamy and the betrayal of the people and democracy.


      Sohail Taj


      (Now a postgraduate student of UCL )