Saturday, October 26, 2013

The Constitution and national problems

Published: Saturday, 26 October 2013
M Serajul Islam

A great deal is being said these days about the Constitution from the ruling party. It is using the constitutional argument to dismiss any suggestion of the opposition related to finding a way out of the political black hole in which the country finds itself at present. Of all the array of problems the country faces, the easiest to tackle are the constitutional ones. The objection of the Awami League (AL) to consider the opposition's demand regarding the caretaker government (CTG) on the plea of the Constitution is another way of saying that the government would not consider its demands.

The provisions in the Constitution itself make this incredibly easy. In fact, it is so incredibly easy that no one seems to realize how easy it is and gets overawed when the AL raises the constitutional hurdle to dismiss the demands of the opposition. Bangladesh has made the amendment to the constitution to resolve constitutional problems as palpably easily as oral saline is to treatment of cholera, where countries worldwide have floundered with complex ways to do so. In Bangladesh, any ruling party that has a two-thirds majority can change the provisions in the Constitution as easy as asking for it. Knowing the character of the main political parties where the wishes of the leader are law unto the party, the Constitution and its sanctity depends on the wishes of the leader of the party that is in power. 

Major amendments of the Bangladesh Constitution like the 4th Amendment or the BAKSAL amendment, 8th Amendment that made Islam the state religion, the 13th Amendment that established the CTG (caretaker government) and the 15th Amendment that annulled it, were all adopted effortlessly and within a few hours of parliamentary deliberation. How our politicians use the Constitution was recently exposed in a Talk Show that underscored the fact that our leaders, who hold political power, often act in unconstitutional ways while making a big issue of their conviction and commitment to uphold the Constitution and the rule of law. The Talk Show considered the constitutional oath that the Prime Minister and her Ministers take upon assuming their respective offices to expose the gap in what these political leaders swear to uphold and what they eventually end up upholding.

Before assuming their respective offices, the Prime Minister and her Ministers first swear that they would uphold the Constitution and in so doing "will do right to all manner of people according to law, without fear or favour, affection and ill will". Those who watched this show were left wondering whether the ruling party leaders, amidst their claim of unflinching faith in the Constitution and unwavering determination to uphold it, have forgotten their oath that they cannot legally violate. In fact, in almost all their political actions, these political leaders, wittingly or unwittingly, make a major alteration to the oath they take. Instead of acting according to the law "without fear or favour, affection and ill-will" as they swear to do, they act "with fear or favour, affection and ill will."

The proof of this violation of the constitutional oath is so palpably evident that even the blind would be able to see. The way the leaders of government speak and deal with the opposition is perhaps the most blatant violation of their constitutional oath because it explicitly shows they act only with "ill will" instead of "without" as the Constitution requires of them. The way Ministers flatter the Prime Minister is another equally blatant and flagrant violation of the constitutional oath. They should be respecting her; but they way they add adjectives before uttering her name shows that they act "with fear, favour and affection."

If that were the end of the constitutional violations by our constitutionally elected political leaders, then perhaps the people of the country would have gone into denial by ignoring the violations. They would have convinced themselves that it was none of their business what these leaders were doing. Unfortunately, these very leaders then turn around and loudly claim that they are upholding the Constitution and are doing whatever they are doing to uphold the cause of democracy! This is like spreading salt to wounds of the people, who nevertheless want to see the ruling party and the opposition act in good faith and without "ill will" because the country's future rests in such good faith.

Therefore, it is time to consider one fundamental fact about the Constitution in the way it is used and interpreted in our politics. Constitution is a man-made document and not divine in its origin. It is created by a few people but for the welfare of all. In fact, the cornerstone of a constitution is that in it, the people are sovereign. Therefore, whenever the constitution is brought into politics to argue in favour or against a national problem, it must be for the welfare of the people. Since in Bangladesh, the constitution's strength is the fact that it can easily be used and interpreted for the welfare of the people, those in position to interpret it, the ruling party as well as the Court, should do so keeping in mind that their actions should be for maximum good for maximum people. 

The country is facing a grave crisis. The conflict between the ruling Awami League and the opposition Bangladesh Nationalist Party (BNP) over holding the next parliamentary elections has the potential to destroy the country. The two parties have given their respective plans to resolve the crisis. The people are expectantly looking at the parties to ensure that the country does not fall apart over the issue. It is therefore their responsibility to ensure that they carry out what the people expect of them. The people have spoken unequivocally that they would like both the AL and the BNP to participate in the elections. They simply do not want any of the two not participating and are not prepared to accept any excuse, as they know what our constitution can do and cannot. They have spoken for an election-time government that would not be under any party.

In 1995-96, the Awami League had stated categorically that party government couldn't ensure free and fair election. This time the BNP has stated the same, that elections would not be fair under a party government. In 1996, the BNP, as the party in power, ensured the people's will that the opposition had articulated. The BNP amended the Constitution, providing for an election-time neutral non-party government and stepped down from power. This time, the BNP has articulated the will of the people for the AL, as the ruling party, to step down for a neutral non-party government. The ball is in the AL's court. The people know that the Constitution is there waiting to be used for what they want, which is national elections where all parties would be able to participate. Anything to the contrary would not just be against the will of the people but as the people are the sovereign, also against the Constitution and therefore unconstitutional.

The writer is a retired Ambassador.

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