The Supreme Court’s sweeping judgment striking down the 16th Amendment is important for what it said about the substance and mechanics of the said amendment.
Far more important -- and taking up a far larger portion of the almost 800 pages of the full verdict -- was the context of their substantive holding that the learned justices also shared with the nation.
In going over the historical narrative, the prevailing conditions of a comatose democracy, and the moral lessons that they seek to impart, Their Honours laid down a marker for our constitutional history, for which they ought to be thanked.
They didn’t have to; had they just delivered a short, mechanical verdict invalidating the 16th Amendment, they would have done their jobs and went home without the full intensity of the barrage of condemnation that has descended upon them from certain quarters.
Yet, they had to. In the absence of any democratic space to voice mild disapproval, let alone vigorous verbal dissent, there remains no check on the fused executive-legislative contraption that runs the republic in a fashion more reminiscent of the Democratic People’s Republic of Korea than the ethos envisaged in the 1972 Constitution of the People’s Republic of Bangladesh.
Elections without voters, fawning “opposition” parties custom made for imagery in the legislature, actual dissenters disappearing without a trace, and reporters locked up for years without even the benefit of a trial -- those are the hallmarks of a democracy in a state of clinical coma, with the sickness manifested in an ever greater desire of the ruling coterie to take over all the remaining levers of social and individual lives.
The Supreme Court said: “Wait a minute,” because there is nobody left to say “no.”
The validation of democratic credentials, as the Supreme Court well understood, takes more than paeans of self-congratulatory euphoria
The depredations of the constitution’s pledge of democracy began -- as the court bravely pointed out -- with the Fourth Amendment. The very mention of this fact can lead to lawsuits, jail time, and disappearances, and hence no news outlet dares to say this. But the court did, in an effort to publicise the sad trajectory which, barring a few countervailing points in the early 1990s, has been one of the constitutional amendments designed to continuously change the fundamental nature of the republic’s organic law from being a democratic one to a dictatorial one.
The 16th amendment is but the latest one in that long, sad line.
Democracy, in the modern sense, means far more than just majority rule. Rather, its non-negotiable factors include legitimate and participatory elections, independent judiciary and civil service, a robust press free from attacks by ruling party hoodlums and enraged law enforcers, and an organic law that makes it very difficult to change that law to favour the continued tenure of those in office.
The 16th Amendment directly contradicted this last provision and indirectly contradicted the independent judiciary provision; it sought to legitimise future encroachments on other provisions by removing the last check on the power of the fused executive-legislative contraption.
The validation of democratic credentials, as the Supreme Court well understood, takes more than paeans of self-congratulatory euphoria and the occasional rotational chairmanship of some international parliamentary union or other of dubious repute.
The learned justices saw through this stratagem, as men with some remaining reservoir of conscience and patriotism are bound to.
In their panoramic sweep through constitutional history, social ills, and abuse of executive authority, they did what many others have long lost the will and the ability to do out of the fear of sheer state terror -- they sent out a stunning indictment of a regime that has made clear that the only “democracy” it respects is one of total and unending domination of every aspect of public life.
While the Supreme Court could not say it directly, it is hard to avoid the conclusion based on that verdict that the kind of “democracy” the ruling setup seeks is not the one dreamed by HS Suhrawardy, Sher-e-Bangla A K Fazlul Huq, or Maulana Bhashani; rather it is the “democracy” that finds its greatest avatars in Ayub Khan and Ziaul Huq.
A marker indeed has been laid down in the constitutional history of Bangladesh. Is it a milestone that is one of the last ones -- if not the very last one -- signalling a dire warning before the irreversible fall into the precipice of full-scale authoritarianism?
Or is it a lodestone whose warning helps turn things around back to the democratic path?
The answers to those questions will be determined by the balance between conscience and blind party-loyalty amongst those who may still have some of the former left in their souls. That is, if there are any such souls left.
Esam Sohail is a college administrator and social sciences instructor, and writes from Kansas, USA.