But why is the 16th amendment becoming a political issue?

But why is the 16th amendment becoming a political issue?

Afsan Chowdhury,
Chief Justice S.K. Sinha speaking at the inauguration ceremony of online application registration system of Bangladesh Judicial Service Commission

The 16th amendment debate is now seriously intense at several levels. It is a conflict between the Judiciary and the Legislature as its powers to remove Judges have been taken away. MPs have felt very insulted and said so. But the observations made in the verdict by Chief Justice Sinha and his peers are being read as “political” and the reactions are even more strong. The present legislature consists entirely of ruling party Awami League MPs so it has become a party issue too with the main Opposition BNP (out of parliament) seeing it as a positive opportunity coming before the 2018 elections. “Now BNP will go on the offensive”, we were told. Apparently, the AL also thinks that the political impact is higher than the legislative one.

Some of the main Observations of the appeal cancellation judgment are as following:  a. The power to remove the judges by the parliament in the original constitution was an “accident” and in 60% of the Commonwealth countries, this powers lies with Tribunals. To that end, the Supreme Judicial Council has been revived.

  1. That article 70 of the constitution doesn’t allow MPs to vote independently in opposition to the party whip making the government decision to remove judges binding on all party MPs. Hence decisions will not be freely decided.
  2. That people feel the power of the legislature to remove judges reduce the independence of the Supreme Court. There are several other points, some on the state of the parliament which are deemed derogatory. One observation stating that “nation building’ is a collective effort is seen by many AL leaders as challenging the status of Sheikh Mujib as the “Father of the Nation” which is confirmed by the 15th amendment.

The manifest happiness of BNP leaders at the cancellation of the 16th amendment has now made many AL leaders more convinced that the political situation may turn uncertain before elections happens in 2018.

Politics of amendments

Constitutional amendments are always about politics in Bangladesh. The 4th amendment made one-party rule kosher, the 5th ended it, The 7th made martial law take over halal, the 12th made the Caretaker Government during elections which was introduced in 1991, CT government formal under which elections were held from 1990 to 2008 legal, the 15th amendment ended CT system in the face of opposition by the BNP who later boycotted the elections of 2014.

Political recovery is still on but it shows that given the chaotic, topsy-turvy nature of Bangladesh politics, amendments are both products as well as triggers of political change. But what exactly is that if at all, no one is sure of except that something maybe afoot. The PM’s statement to be “beware of conspiracies” has added to the mood.

Why has the 16th become such a crisis?

The 16th amendment came at a time of heightening conflict between the Supreme Court and the ruling Government which has become nearly confrontational now. The Chief Justice S.K. Sinha has not shied away from such situations which has made the SC Appellate Division part of the public space. He has criticized various legal actions of the Government and he took the unusual step of holding two cabinet ministers in contempt for uttering remarks against the CJ and his court and punished them, a very great rarity.

When the Islamists started a movement demanding the removal of a goddess of Justice statue from the Supreme Court, Justice Sinha stood his ground and simply moved it to a less visible part of the premises. The movement too faded away. Justice Sinha has a positive public image as a person of will and integrity.

But the 16th amendment cancellation drama is big fish. The verdict is criticized by the AL and the uproar continues heightened by the publishing of the observations. Meanwhile, the immediate past Chief Justice Khairul Haque who now heads the Law Commission who delivered the 15th amendment verdict has trashed the Sinha verdict calling it “immature” and an attempt to establish the supremacy of the Judiciary. The Law Minister Anisul Haque, considered a moderate, has said that the Government will seek expunging of certain parts of the judgment through a review.

But Dhaka’s rumour factory is working overtime asking if factors beyond legality and even national boundaries are involved in influencing the course of events or not. Since few understand what the implication of the 16th amendment was and it’s cancellation means, some are puzzled by the whole episode and the ruckus following an amendment which has impact only on very few lives. Some feel that uncertain times are ahead given that the 2018 elections aren’t far away.

Foreign affairs and local amendments?

It’s said that AL’s interest in a quality election was in part pushed by the two great regional powers, India and China. Both have made substantial investments and not just monetary in the country and think that a bad election could lead to political problems which is bad investment news. Since both the countries are locked in a battle of nerve, this has become a high stakes game though Bangladesh is not a party.

India’s anxiety over China’s overtures to Bangladesh is no secret as China not only has deeper pockets and as sources confirm are willing to put in more billions if Bangladesh can absorb them. Military hardware supply is another area where both are competing of sorts because the stakes have gone beyond sales now what with the Doklam standoff.

But public opinion is not very pro-Indian and India’s ill advised Rampal power plant project investment which has become a threat to Sundarbans according to environmental activists has become a bigger problem for India’s image. So, India is concerned about what is in store, both in the short and long term.

But India is closely linked to Bangladesh and its people through physical proximity and many other ties. It has a large lobby in the business and the political world. China has to depend solely on its billions and as a reliable supplier of military hardware to make its presence felt.

The PM of Bangladesh wants more arm spreading space and that is why she wants to balance the scenery by not tilting towards any single camp. In a way that was the scene before China’s arrival in a big way. India wants China out and China wants more proximity and influence. It’s not Bangladesh that bothers them but each other. How that game is being played out is unclear.

In a political culture that is unstructured and subject to sudden mood swings, the players need to pay attention to every shot. Life is simpler for the BNP, wanting to go to power only, but for the AL, now holding the reins, the wild shots may come from anywhere causing power anxiety.

In this uncertain mood all around, the Government may be worrying if this very robust and adversarial position taken by the Supreme Court doesn’t become another factor in the increasingly crowded field of political contest and impact.