HC once again reminds govt of its constitutional trespass

Editorial, NewAge, July 26, 2008. Dhaka, Bangladesh

The High Court on July 24 reminded the military-controlled interim government of Fakhruddin Ahmed – for the second time in less than two weeks – that it was beyond its constitutional jurisdiction to promulgate an ordinance not related directly to the elections. In declaring illegal and cancelling the Contempt of Courts Ordinance 2008, the High Court bench of Justice ABM Khairul Haque and Justice M Abu Tariq once again highlighted a legally obvious issue that the interim administration has attempted to obfuscate since it assumed office on the wings of a state of emergency in January 2007. The judgement is similar to the one the court delivered on July 13 in the case of the Muslim Marriage and Divorce Ordinance 2008, pointing out, in no uncertain terms, that the incumbents do not have the authority to make any policy decisions as per article 58D of the constitution. The two verdicts essentially undercut the attempts the incumbents have made over the past 18 months or so to give the people the impression that the constitutional provisions for a caretaker government do not quite apply for them.

Ever since it came to power, the government has seemingly taken upon itself the right to invent and reinvent, interpret and reinterpret the constitution at its own caprice and convenience. While the constitution decrees that the interim government should limit its activities to creating a level playing field for contesting political camps in the run-up to the general elections within the 90-day timeframe and discharging the day-to-day affairs of the state, the incumbents have set themselves a flexible tenure and hardly hesitated to make decisions affecting the national interest. The High Court verdicts, therefore, tend to justify the conclusion of the thinking sections of society, whose political orientation is moulded by democratic constitutionalism, that the government may have been in breach of the constitution vis-à-vis many, if not most, of its actions, lawmaking and otherwise.

Hopefully, the High Court’s observation with regard to the interim government’s trespass beyond its constitutional jurisdiction would prompt the incumbents to gear its activities towards the twin tasks that they should have accomplished long time back, i.e. creating a level playing field for the contesting political camps in the lead-up to the general elections and assisting the Election Commission to hold all-contested and credible polls. As the court has pointed out, the ‘president and the caretaker government do not represent the people… The shorter the tenure of such an undemocratic government the better it is for all.’
   Finally, to iterate what we have said in these columns previously, the consequence of the High Court’s observations will depend on the action and reaction of the political parties to these as and when the next parliament comes into existence. It will be ultimately up to the members of the ninth Jatiya Sangsad to deal with the digression of the Fakhruddin government from its constitutional mandate.


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