Supreme Court’s (SC) verdict on 16th Amendment is extraordinary considering its observation and analysis on the deep impact of the government on the quality of lives of citizens.
The verdict in several places, as reported in the media, lashes out the bad impact of concentration of power within government over Bangladeshi society and outlines how deteriorating situations in arenas of rights and freedom are directly linked to governance.
At one place it sums up the present scenario strongly where it argues: “… the combined result of all this is a crippled society, where a good man does not dream of good things at all, but the bad man is all the more restless to grab a few more bounty..”
But surely this is not the Sonar Bangla- our founding father Bangabandhu Sheikh Mujibur Rahman envisioned. This is not the Sonar Bangla—for which our three million fellow countrymen sacrificed their lives.
Indeed, the verdict took a very critical look into the executive and legislature and concluded that at present somewhat independent entity of the government though sinking is the judiciary of the country.
We are yet to see any detailed response from other two parts of the government.
However, in this context, it is necessary to revisit the concept of separation of power among three branches of the government—executive, legislature and judiciary—and checks and balances between these branches—in order to understand the conceptual terrain in which the SC delivered this verdict.
At the outset, one should note that most governments have three branches—executive (civil service), legislature and judiciary. The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher.
In the views of many, Montesque’s publication, “Spirit of the Laws,” is considered one of the great works in the history of political theory and jurisprudence.
It inspired the Declaration of the Rights of Man and the Constitution of the United States. Under Montesque’s model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.
Separation of powers, therefore, refers to the division of government responsibilities into three branches while allowing each branch to put a check on other branch. The aim is to prevent the concentration of power and provide balanced government.
Trump administration’s on going contest with legislature and judiciary is a case in point as we saw that there were more than one instances few US judges have halted Trump’s executive order to ban citizens of predominant Muslim countries to enter into the USA.
Similarly, Trump’s failure to deliver one of its key election pledges that is to repeal and replace OBAMA-care—the iconic healthcare bill passed by President Obama—in the US legislature underpins distribution of power and the mechanism of checks and balances within three branches is essential for an effective government that upholds peoples’ interest first.
Montesquieu in the Spirit of Law had put an emphasis on the separation of judicial power from executive and legislative authority. That is understandable in the sense that the role of any government is to ensure that the rule of law is being upheld in the society.
While government collects taxes from its citizens to run its business, the role of the government is to deliver citizens good service and respect citizens’ rights by that the government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.
Therefore, the idea of checks and balances is to limit government power because as Thomas Painse said, “government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”
So, according to Monstesquieu, the judiciary has to be able to do its work as the mouthpiece of the laws without being distracted from fresh decisions made in the course of its considerations by legislators and policy-makers.
Montesquieu noted that despotic governments tend to have very simple laws which they administered dictatorially with little respect for procedural delicacy, Montesquieu argued that legal and procedural complexity tended to be associated with respect for people’s dignity.
If we look around today’s Bangladesh, people’s dignities are at stake in many places. Oppression of many kinds, rights violation, infiltration to constitutional rights of political association, lack or no accountability of public service departments responsible for overlooking public service facilities, rising pay gap between poor and elites, infiltration of business and crime into politics made masses powerless—undignified and not empowered.
Now we live in a society where in most case it depends on who knows whom and who is associated with who rather than believing in an unbiased rational application of rule of law. Needless to say the present government is not solely responsible for this situation. This is a cumulative effect of a system formed by all previous governments. So it is ironic when BNP lauds the SC verdict cause it cant avoid its historic contribution in making a “crippled society”.
Therefore, the SC verdict on 16th amendment within this context will remain as a historic document that asked the politicians, policy-makers and numerous people associated with procedural aspects of governance to look back and reflect where are we heading as a nation that emancipated to break the shackle of oppression in 1971 with an aim to be free and dignified.