Will the Supreme Court reinstate the freedom fighter quota?
In December 2021, a High Court ruling reignited the Freedom Fighter Quota conflict by challenging the legality of the government’s decision to abolish it in 2018. On Thursday, the Supreme Court's impending decision will determine the future course of this contentious issue – making it a pivotal ruling
In 1972, the government of Bangladesh implemented a quota system for recruiting officers in its Class I job category. This system allocated jobs into four quotas: merit-based (20%), freedom fighters (30%), war-affected women (10%) and population-based on district (40%).
This was a significant policy decision at the time.
In 1976, the merit-based quota was increased to 40% by reducing the district quota to 20%, further shaping the job market landscape.
However, the quota system has become a contentious issue for job seekers over the decades.
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Fast forward to 2018. Student unrest and protests calling for quota system reform ultimately led the government to abolish it.
In December 2021, a High Court ruling reignited the conflict by challenging the legality of the government's decision. On Thursday (4 July 2024), the Supreme Court's impending decision will determine the future course of this contentious issue – making it a pivotal ruling.
A brief breakdown
In 2018, based on the quota reform committee recommendations, the government ended the quota system for grades nine to 13 (formerly Class I and II). A circular from the Ministry of Cabinet Affairs was issued on 3 October 2018.
The Freedom Fighter Quota (FFQ) was both a political and public policy issue. Politically, it wouldn't have been introduced if the pro-liberation forces hadn't won the war. As a public policy issue post-independence, the government needed to reshape its bureaucracy based on the principles of the Liberation War.
The FFQ was abandoned in 2018 for similar reasons. The dispute over the freedom fighter quota was resolved democratically.
On 6 December 2021, a High Court bench stayed the 2018 circular after a writ challenged its legality and asked the government to explain why its decision should not be declared illegal and invalid.
After the final hearing on 5 June 2024, the High Court declared the government circular null and void. In response, the government moved the case to the Chamber judge of the Appellate Division, which upheld the High Court decision and set 4 July for a full-bench hearing.
Students from both public and private universities have protested against the High Court ruling. The Appellate Division's ruling on 4 July will determine the reaction of the general students in colleges and universities.
If the Supreme Court dismisses the writ, the issue might die down. However, granting or disposing of the writ could lead to intense student unrest and a political environment ripe for manipulation.
Matters of legality
The nation expects a dismissal ruling on 4 July. Is there any sound legal logic behind this expectation? This question warrants a deeper analysis.
Democratic governance is founded on two principles. First, all voters are equal. This means a democratic constitution cannot approve any law or policy that conflicts with this principle. Thus, it's crucial to examine whether the FFQ falls under fundamental rights guaranteed by the principle of equality that all democratic constitutions must enshrine.
Second, the principle of equality suggests that a democratic society can only be governed by majority rule. This means ordinary government policy cannot infringe upon voters' fundamental rights.
Therefore, democratic governance excludes fundamental rights guaranteed by equality principles. The equality principle is the foundation of a democratic constitution, while majority rule governs a democratic society.
To ensure government compliance with the Constitution, the Supreme Court acts as its guardian through judicial or constitutional review. This power allows the Supreme Court to examine government actions and determine their consistency with the Constitution, declaring any inconsistent actions unconstitutional, null and void.
The High Court's stay on the Freedom Fighter Quota-abolition circular and its request for the government to justify its constitutionality suggests the High Court believes it has jurisdiction for constitutional review.
The critical consideration is whether the Supreme Court has the constitutional authority to review the Freedom Fighter Quota writ, requiring an analysis of the connection between the principle of equality and the FFQ.
Bangladeshi citizenship was awarded after independence based on democracy's fundamental principle of equality. The eligibility criteria for citizenship had no connection to an individual's stance on the Liberation War.
Also, from a constitutional perspective, the FFQ conflict does not fall under the Supreme Court's jurisdiction. This is the fundamental issue the Supreme Court must deeply deliberate before its ruling tomorrow.
Khandakar Qudrat-I Elahi is a retired Department of Agricultural Finance faculty member at Bangladesh Agricultural University. Currently, he lives in Guelph, Ontario, Canada.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard
