Freedom fighters are not a backward community, they are frontline soldiers

There is a lot being discussed and debated about the freedom fighters, but this is not an issue of freedom fighters at all. It is a matter pertaining to their grandchildren and their great grandchildren.

The valiant freedom fighters are not a backward community that lags behind. They are frontline soldiers. Terming them as backward is defamatory to our independence and our liberation war.

The authors of our constitution did not identify the freedom fighters as backward. When Bangabandhu had initiated a special provision for freedom fighters, that was before the constitution had been drawn up.
Fifty-three years have passed and there  is still no legal definition of a freedom fighter. The government in principle has determined a definition of freedom fighter and this changes from time to time. With the policy in this regard changing from time to time, the goalpost tends to shift.

The freedom fighters are counted as freedom fighters on the basis of when they registered themselves as freedom fighters and in which list they have entered their names. That is why many freedom fighters are arbitrarily receiving freedom fighter allowances, then when the policy changes, many freedom fighters' names are dropped from the list. Many non-freedom fighters have been added to the list.

Freedom fighter (mukti joddha) and Mukti Bahini (freedom fighting force) are not one and the same. As there is no legal definition of a freedom fighter, many cultural activists and many birangana, have been left out of the freedom fighter list. In particular, the political leadership that formed the first government of Bangladesh, formed the Mukti Bahini. But those ones who had given leadership then till today are not recognised as freedom fighters. So the definition of freedom fighter needs to be revised by means of the law and all of them thus included.

The constitution allows affirmative action regarding quota for backward communities as in the case of differently abled persons, ethnic minorities, and women who have historically fallen behind. But that too is not forever, but short term. Basically, to raise them up to the mainstream.

The quota that was in place for the grandchildren of freedom fighters was not short-term, but to continue down the generation. This is contradictory to our constitution's republican character. A republican state does not have a hereditary character like a monarchy.

The 'Muktijoddhar Shontan Projonmo' (freedom fighters' progeny) which filed the case is unregistered. They filed the case as representatives of the freedom fighters' progeny. The basis of their appeal or 'locus standi' was their representative capacity as offspring of freedom fighters. But in Bangladesh class action cannot be taken by virtue of representation. The injured party can directly or as a group file a writ petition in court in public interest.

So the question arises, who do the petitioners in this case represent? The future generation of unborn children? As the petitioners are not personally victims or have not filed the case in public interest, their case is not maintainable. And so the appeal could be dismissed.

A law pertaining to the quota issue has not been enacted as yet. This is just being determined in accordance with the government policy. It is established in the legal arena that the court will not be able to interfere in government policy. And so the High Court ruling can be rendered void. Since there is no quota after the government changed this policy in 2018, the High Court's intervention regarding changing the policy was not within its jurisdiction.

Determining state policy is the sole jurisdiction of the executive. The court cannot determine policies on behalf of the state. It cannot interfere in what the government policy will be or will not be. If the government policy is contrary to the constitution or is arbitrary or unreasonable, then only can the court declare the government's policy unlawful. But the court cannot formulate government policies. It cannot even say what the government policy should be.

I am satisfied that the High Court's ruling has been cancelled. In providing complete justice, the Supreme Court made some observations in keeping with article 104. In providing complete justice, the existing 10 per cent quota for women has been snatched away. So the question is whether there has been complete justice for women.

Time will tell whether a new problem has been sparked off by offering this solution to the existing problem. The quota issue was not subjudice. No lawyer was asked to give their opinion in court regarding the matter. There was no debate on the issue. So the sudden snatching away of the 10 per cent quota shocked us all.

My respected senior said in surprise, the Supreme Court can come up with complete justice ruling only when there is any pending case. But after the Supreme Court had dismissed this, there was no appeal pending. So to whom did the Appellate Division give complete justice? There was no appeal pending before them.

Determining state policy is solely the jurisdiction of the government. The court will not interfere. But in determining the quota percentage, has the court entered the policy-making sphere of the government? Admittedly, the Supreme Court did say that this observation was not mandatory.

Our democratic practice demands that when any branch of the state is to enact a law, it is imperative that the matter be discussed with those for whom the law is being enacted. The decision must not be imposed from above. In democracy, the people must be involved in the decision-making process when the decisions will run or control their lives.