This editorial by the Bangladesh Today highlights about a new political development in Bangladesh that has the potential to produce unwelcoming results for newly acquired democracy in the country. Read the editorial:
The AL government, by backing out from challenging the High Court (HC) verdict declaring illegal the 5th amendment to the Constitution, has opened up a new front in an already acrimonious tussle between the AL and the BNP. This time the battle is a legal-constitutional one, over the legitimacy of the Martial Law government under General Zia ur Rahman from 15 August 1975 to 9 April 1979.
The whole matter started when the High Court on 29 August, 2005 declared illegal the 5th amendment to the Constitution on a writ filed by someone. Almost as an after thought the HC observed that although the 5th amendment was illegal, history cannot be altered and many of the acts done between 15 August 1975 and 9 April 1979 were in public interest. That HC verdict and observation does not clarify much because what constitutes "public interest" not being defined either in law or in the Constitution, is left open to perceptions, just as what constitutes "legitimate government" is also left open to perceptions.
Moreover, it has little or no practical implications because whoever - be it the President, the Parliament or the Military - wants to declare a Martial Law, he or they will, regardless of whether it is declared by a court to be illegal, long after the event.
Governments by definition have law-making authority as long as governments can impose their wills on the governed and as long as they can implement the laws which they promulgate thereby affecting the way people live their economic, social and political lives - that is how every sort of government from monarchy, to oligarchy, to single-man dictatorship, to multi-party parliamentary democraciesjustify and legitimize themselves and co-exist side-by-side in different polities. So, every government is legitimate and legal as long as it continues to exist.
In our case, if one takes elected governments and elected parliaments as holding sole legitimacy to govern and to make laws respectively, then the HC verdict and observations have opened up a whole new can of worms because then every form of government and governance imposed by the 4th, 6th, and 7th amendments to the Constitution, as well as the last Emergency government are also illegitimate and illegal by the same token as the 5th amendment.
Therefore, now we place ourselves in a position where every government from 15 August 1975 to 01 October 2001, is or may be considered to be illegal. So, where do all these leave us, the citizens of this country whose lives and history has been defined by these governments?The "public" do not understand these weighty questions of constitutional law and history or are concerned about legitimacy of past governments; all they care about is surviving the next day and so by raking up irresolvable issue with no practical implications today, the HC, the government and the political parties are making themselves irrelevant to the people to whom these Sate purportedly belongs.
The courts including the HC ought to concentrate on the judging the hundreds of thousands of cases hanging somewhere within its labyrinthine folds; the AL government ought to concentrate on providing the basic rights of food, shelter, education, health-care, employment, security, law and order to the 150 million people of this country and the political parties ought to stop bickering and look after the interests of people whom they claim to represent or uphold - all these are essential, necessary and practical.