Role of Judiciary in governance and the Social Contract

Dhaka,  Fri,  22 September 2017
Published : 13 Aug 2017, 20:51:02
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Role of Judiciary in governance and the Social Contract

Safwan Rob
Will of the people in Bangladesh is continually being ignored. The 'flawed' election of January 05, 2014 has otherwise been a major weakness of the government on this count. This "might" have been forgotten by the power-that-be about their governing the people whose will to be governed matters here. Good governance is the state's ability to provide services and implement policies. The government and the legislature have not been successful on that account. The Supreme Court (SC) and its honourable judges remember the role of judiciary in good governance and reminds others that they are all accountable to the people.

The Constitution of Bangladesh states under Article 7 (2) that "This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that law shall, to the extent of the inconsistent, be void." In the observation of 16th amendment, the SC duly confirmed its responsibility through 'judicial review' to declare a law void in case it conflicts or is 'inconsistent' with Article 7 of the Constitution.   

The SC judgement on the repeal of the 16th amendment did not state any new truth. Rather it removed the barriers to judicial independence and exposed the façade of good governance. The SC consciously confirmed that they agree with the populace and society regarding the failures of the legislative and the executive branches in performing their respective duties. 

The profound observation by the SC is welcome and also a necessity. The observation aptly discusses some of the fundamental core values of Bangladesh and its independence. Some of these values have been taken for granted and hence not been upheld as the guiding principle behind all state affairs of governance, legislation and executions. The basic framework of "check and balance" is a complex area in our Constitution. The Constitution by nature should ensure "separation of power"; however, the elements within our constitution are somewhat unclear on this vital issue. Given Bangladesh's political context, Article 70, as many quarters observe, truly restricts members of Parliament from acting independently. This in effect curtails the independence of the judiciary through the 16th amendment. 

A constitution is the guiding principle to ensure good governance. In governance, norms and practices changes along with time but with the core intention of goodwill to prevail. The Constitution in a modern republic ensures separation of power and a check and balance system of governance. In Bangladesh through constitutional amendments and parliamentary bills, the rule of governance has been modified to provide the consent to be ruled under the auspices of 'a single person'. Some specific provisions of Bangladesh's Constitution merit here consideration as far as the true purpose and nature of a modern Constitution are concerned.  

This is pointed out in the SC's observation: The most crucial difference between a medieval kingdom and a modern Republic is that in the former the king is the lawmaker and lawgiver - the king is the Judge - the king also is in the charge of the execution. As opposed to that, politicians and political philosophers have constantly thought about establishing a system where the unfettered, despotic and totalitarian power of the King can be put under a "balanced restriction" so that he cannot transgress the limit. This is how the idea of modern Constitution has emerged.

For any Bangladeshi of conscious sense of civic responsibility and patriotism, it is difficult to ignore the systemic path, drawn by supporters of cronyism, that is not helping to strengthen the institutions of country. This is all the more difficult for the supreme judicial body of Bangladesh.  

The judgment by Chief Justice Surendra Kumar Sinha and other honourable judges of the appellate division is the first true legal testimony by the soul of the country. The judgment narrates long many years of suffering and injustice that the people has endured. It highlights the unjustifiable amendments and erosion of our conscious as a society due to enduring practice of ill governance. 

The responsibility of a government is to ensure good governance as part of the 'Social Contract' with the governed. The idea originates from writings of Hobbes, Locke and Rousseau. The term "Social Contract" was coined by Jean-Jacques Rousseau in 1762 and reinvigorated by John Rawls in 1971. The idea of social contract is central to the concepts and origin of society. It creates tacit legitimacy for a governing body of the state to rule over the individual. The social contract is based on the premise that there exists a contract between the ruler and the ruled. The ruled gives up certain rights and the ruler respects the contract by ruling fairly. 

We are living in a country where reason, humility and morality dies a cruel and "popular" death. As the official crux of moral guidance and justice, the SC took a firm stance. To change a problematic system, we first have to acknowledge that it exists. The government and legislature's inability or failure to uphold the responsibility given to them by the people is a violation of their tacit Social Contract. The judiciary confirmed that violation through repealing 16th amendment and kept the terms of SC's Social Contract with the people. If the Supreme Court can uphold the 'Social Contract', then people will give consent to its future actions as well. 

The people of Bangladesh found hope in the words and action taken by the Supreme Court. The Constitution asserts the will of the people as the power behind the ruler even when certain parts of the current Constitution systematically binds the Constitution. The verdict elaborated the statement, "We the people" - here the SC correctly observes, "the strength of a nation lies in this word [WE] and spirit of "WE". This 'weness' is the key to nation building". [Court, The Supreme (2017) "Government of Bangladesh and other Vs. Advocate Asaduzzaman Siddiqui and respondents," in T.S.C.O.B.-A. Division, ed. Civil Apeeal No. 06. vol. Writ Petition No. 9989 of 2014. Dhaka]

The WE have spoken... through the historical judgement. The conscious people of this country vehemently agrees with the observation and the verdict. It may be argued by government loyalists that average population find this issue to be irrelevant as its significance is lost on them. The blindsided partisan supporters may find solace in such argument but they should remember grievance felt by the people and observed in the judgment are the same, it needs no translation. 

The writer is Archer Fellow, Lee Kuan Yew Scholar. 

E-mail: safwanrob@gmail.com


 
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