7 of the Constitution embodies the
wishes and will of the nation which
fought a bloody Liberation War in
1971. All powers in the Republic belong
to the people, and their exercise
on behalf of the people shall be effected
only under, and by the authority of
the Constitution. The Constitution
is the solemn expression of the will
of the people, the supreme law of
the Republic. (Article 7). This Article
is a statute of liberty, supremacy
of law and rule of law. Anwar Hossain
Chowdhury & ors. vs. Bangladesh
41 DLR (AD) 165, 220. Parliament is
the creation of this Constitution
and all powers follow from this article.
(ibid at page 220). This Article is
a happy conjunction of the will of
the people and the supremacy of the
Constitution. The Bengali nation suffered
not only under the British but also
in Pakistan time under different Martial
fact there was never any democracy
here in Pakistan time. The Constitution
of 1956 could not be implemented and
before any election took place Ayub
Khan's Martial Law came into effect.
When that Martial Law was overthrown,
Yahya Khan succeeded as the new dictator.
When the results of the December 1970
elections were announced, the dictators
and their autocratic friends conspired
to thwart democracy by not recognising
and giving power to the elected representatives.
It is this denial of democratic recognition
that finally led to the struggle for
a separate homeland for the Bengalis.
the Bengalis fought for was therefore
democracy, rule of law and people's
rights. The Constitution is a pious
embodiment of these wishes. The fundamental
rights are mentioned and are enforceable
in the writ jurisdiction of the Supreme
Court which also checks any action
by the executive which has been done
illegally or without lawful authority.
Constitution has undergone certain
changes and currently we may be seeing
another. However the basic spirit
of freedom, rule of law etc are still
there. The Supreme Court has defended
the structural pillar of the constitution
in Anwar Hossain's case (above) holding
that the basic tenets of the judicial
system cannot be changed.
we were always having interruptions
in the working of a democratic government
there is one silver lining in the
cloud. Neither Ayub Khan's regime
nor Ershad's Martial Law Government
defied any order of the Superior Courts.
Thus, we saw the Supreme Court of
Pakistan affirm the Dacca High Court's
judgment in Fazlul Quader Chowdhury
vs. Mohd. Abdul Hoque PLD (1964) S.C.
486 which declared the parliamentary
seat of a prominent minister to have
been vacated. The autocratic regime
complied with the decision. Similarly
the Pakistan Supreme Court and the
then East Pakistan High Court constantly
protected the freedom of movement
and liberty against arbitrary arrests
under the umbrella of the Defence
of Pakistan Rules by holding that
the "Satisfaction" of the
detaining authority will be objective
and not subjective.
Courts called for the particular records
of the case and if the judges found
that the arrest was not on objective
ground, the detention was set aside.
This principle has constantly been
followed in cases of detention under
the Special Powers Act in Bangladesh.
General Ershad's government bowed
down to the decision of the Appellate
Division when the Court held that
the High Court Division can not be
bifurcated into seven permanent benches.
(Anwar Hossain Chowdhury's case. ibid).
is with deep anguish we note today
that the democratic values are being
eroded. Judiciary is yet to be separated.
Murders go on unabated and crimes
are alarmingly on the increase. Immediately
all of us blame the law enforcing
agencies for failure to check crimes
but have we pondered to think that
the members of the law enforcing agencies
as well as the criminals are nothing
but part and parcel of our society.
Why is it that we need special draconian
laws like the Nari Nirjatan Ain, Druto
Bichar Ain which strike terror into
the hearts of any prisoner because
of the psyche that an accused "should"
be guilty if he/she is arrested or
tried under those laws. Other countries
do not have parallel laws and yet
do they not fare better when law and
order is concerned ? Laws do not protect
the rights of the people in the end
but the heart and head do. As long
as we do not think of breaking the
law and conform to the rule of law
which means that everybody should
be treated equally before law, democratic
values will prevail. For, democracy
means rule of the people but that
"rule" is according to the
law of the land which flows from the
Constitution of which the fountain
head is Article 7.
is it that Bangladesh is the only
country which needs a caretaker government
headed by non elected persons to see
the country through an election. Erosion
of democratic values which we learnt
in our Civics books written and based
on English principles in the early
years after the British left has been
so naked that every political party
has accepted that none of them can
be trusted to conduct an election
fairly. The Nation prefers that election
be conducted by a retired Chief Justice
who having retired at 65 is deemed
to be physically unfit to remain a
judge but is found for that very reason
to be fit enough to run a country
in the crucial period !
after any election, there is always
a protest by the losing side that
the election was rigged. No one has
the democratic sense to accept the
results. This intolerance continues
and the Ruling Party, whoever it is,
becomes busy in arresting the members
of the Opposition and the Opposition
clamours for mid term election without
waiting for the five year period to
finish. Democracy means rule of the
people for the people and by the people
but above all toleration and a patience
to wait until the next election.
the losing party with scant feeling
towards working the democracy does
not attend the Parliament except when
it is necessary to keep their seats.
They forget that they are elected
and democracy cannot function when
there is no opposition in the Parliament.
They take their emoluments and duty
free cars but do not fulfill the promise
made to the electorate that they will
represent them in the Parliament.
Even if the Party in Power does not
give them enough scope to ventilate
their views, they should attend the
Parliament. Democratic values are
lost in the pathetic war of words.
Our heart saddens further when we
see the same pattern reflected whoever
is in power or opposition. They call
hartals which chokes the nation's
economy and then proclaim that it
is successful and thank the people
for it. Their only weapon is fear
of the car and shop owners of unlawful
harm. Hartals emanate from "Satyagrahas"
and "Foreign Goods Boycott"
of Mahatma Gandhi in the early 1920's
who however promptly called them off
when these were enforced by violence.
A lesson to be learnt here.
must mean that as a nation we lack
the sense of toleration that is needed
for a functioning democracy and we
are unfit to govern ourselves democratically.
Democracy in the third world countries
may be different from those found
in developed countries but why is
it that we are so unique in ignoring
the democratic values ? What jolt
do we need to correct ourselves ?
Within three years of the Constitution
we had a one party government and
a string of Martial Laws which ended
when people of all hues and colours
woke up and took to the streets.
then immediately the rot started and
we are lamenting increasingly about
the deteriorating law and order and
the brazen brushing aside of the spirit
that the framers of the Constitution
fondly inserted in Article 7 namely
that the will of the People is supreme.
We equate the will of the "People"
with the desire for "Power"
and its abuse and we do not treat
our election commitments to represent
the electorate seriously.
spirit to work together and the democratic
values are something not tangible
but we cannot go on ignoring the same
with impunity. Article 7 must be honoured
The author is Barrister at Law, Senior
Advocate, Supreme Court.