Front Page: "‘Two military regimes, the first being with effect from 15th August 1975 and the second one being between 24th March 1982 and 10th November 1986, put the country miles backward. Both the martial laws devastated the democratic fabric, as well as the patriotic aspiration of the country,’ the verdict said.
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Did the military regimes put the country miles backward?
Let us review the facts. 50,000 people starved to death even when there was enough food in the country - and that food, according to the Encyclopaedia Britannica (15th edition,'famine'), was exported to India. Was this part of the 'democratic fabric' and 'patriotic aspiration of the country'?
Next, a one-party rule was instituted by the beloved Bangabandhu, thereby being guilty of violating the constitution himself, yet, to the learned judges of the Supreme Court, he is 'Bangabandhu' - friend of Bengal.
"The original constitution of the republic of 1972 was mercilessly ravaged by General Ziaur Rahman who erased from it, one of the basic features, “Secularism” and allowed communal politics, proscribed by Bangabandhu, to stage a comeback." This language, with all due respects, doesn't sound like the language of an apex institution of the country. 'Bangabandhu' was not the name of the first prime minister and president of Bangladesh. His name was Sheikh Mujibur Rahman. One would expect the learned court to use the legal, certified name of an individual, no matter who he is, instead of a popular appellation in a landmark judgment. The uncharitable may discern a certain servility here, of which our honourable judges are surely incapable.
Besides, the 'original constitution of the republic of 1972 was mercilessly ravaged by' Sheikh Mujib himself, as we find in the fourth amendment. It was the fifth amendment that nullified the fourth. One tyranny was replaced by another - a far better one. The country moved away from the choking socialism of the early '70s towards capitalism and free trade. Today, it is because of the move away from socialism undertaken by General Zia and General Ershad that the country's private sector is flourishing and GDP growth rate is high (although the poor have not benefited much, yet they are not starving in their thousands either).
Again, the military had to take over the country in 2007 because democracy was driving us to civil war. The current prime minister was indicted on five counts of murder - and yet there she sits in power and pomp. The two begums spent nearly a year in prison, where they, unfortunately, could not be kept confined for all 'eternity' (to borrow one of the words used by the judges) because of our constitution and its supporters. It seems that the people exist for the constitution, not the constitution for the people. But we will not commit 'shirk' and worship a few pieces of paper.
‘Martial law is totally alien a concept to our constitution.’ Fair enough. But it is not alien to out culture and civilisation - the Muslim civilisation. In his prayer for the emperor, Sheikh Saadi in the Golestan, refers to him as 'The shadow of Allah' - 'zel Allah' in the original language. Al-Ghazali and Al-Mawardi find no place for democracy in a Muslim polity. Sheikh Saadi observes: "A sultan rules by means of his troops'. Every learned person with whom I have discussed the subject, be he Bangladeshi or Iranian, has concurred with my view of the subject. "Zel Allah" is the attribute of a Muslim ruler. He is beyond criticism and controversy - the very opposite of democracy.
The Muslim polity - autocracy - has been the most tolerant of polities in history. A civilisation cannot be eliminated by a mere flourish of words; the apex court may command that a man be put in prison, but it cannot command that a man rid himself of his civilisation - or that an entire society comprising mostly of Muslims should do that.
History cannot be writted away.
Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts
Wednesday, December 29, 2010
Thursday, December 23, 2010
The new constitution of Bangladesh
The revised, complete and unexpurgated edition of the constitution is forthcoming. I see that we draw our inspiration from Islam as well as the Franco-German religion called nationalism (which the Franco-Germans have been trying to inter for the last sixty years).
At any rate. I shall no doubt sleep better knowing that the next morning I might find that my assets have been nationalised. There will be an equally soporiferous effect on foreign investors.
Now that the document has been revised, we are surely about to take off like a rocket. After all, the only obstacle between Bangladesh and development has been a few sheets of paper.
At any rate. I shall no doubt sleep better knowing that the next morning I might find that my assets have been nationalised. There will be an equally soporiferous effect on foreign investors.
Now that the document has been revised, we are surely about to take off like a rocket. After all, the only obstacle between Bangladesh and development has been a few sheets of paper.
Friday, February 26, 2010
The Frankish Disease
"Your language is closer to you than your jugular vein."
From where did this piece of wisdom come to this part of the world? It wasn't always there. When the British came, we gladly relinquished our languages and learned English (and still do). Something changed between the time the English arrived and the time they left. They taught us more than 'Jolly good!" and "Old boy": they taught us nationalism.
But not all of us: only the microscopic minority of educated 'monkey-see-monkey-dos' produced by the imperial education system in South Asia.
But nationalism was not all we ingested from the superabundant harvest of western civilisation. There was Marxism, socialism, secularism, democracy….
That these contradictory ideas could lodge in a single head seems extraordinary today, but one must keep in mind the fact that we had been ruled for two hundred years, and rendered incapable of thinking for ourselves.
Take the Middle Eastern expression for nationalism: when it first arrived there, it was known (correctly) as the 'Frankish idea'. The accompanying physical malady that accompanied it was known as the 'Frankish disease'. Now, syphilis has the same effect on the brain as the Frankish and other assorted ideas. Therefore, we were able to accommodate all sorts of opposing ideologies in one diseased brain.
The climax of these intellectual developments, if lunacy can be credited with development, was the 1972 constitution of Bangladesh. Nationalism was part of it; as was nationalisation of all industry in solidarity with the workers of the world (but – heaven forbid – not the nationalisation of land). How Bengali nationalism could appeal to a Czech factory worker was beyond comprehension. The architects of the constitution wished to create a paradise on earth – but for Bengalis only. But 'Bengalis' also designated those living in West Bengal in India. So, Bengali paradise was not for West Bengalis. Yet nationalism reached across the border….In other words, the constitution was a cocktail meant for immediate inebriation.
In fact, one can't blame the pater patriae for kicking over that piece of paper as a colonial-period relic: it was really just that.
A constitution not in keeping with the culture, the 'manners', to use de Tocqueville's expression, of the people must be worth less than the paper it is printed on. Indeed, it is not worth less, but worthless.
From where did this piece of wisdom come to this part of the world? It wasn't always there. When the British came, we gladly relinquished our languages and learned English (and still do). Something changed between the time the English arrived and the time they left. They taught us more than 'Jolly good!" and "Old boy": they taught us nationalism.
But not all of us: only the microscopic minority of educated 'monkey-see-monkey-dos' produced by the imperial education system in South Asia.
But nationalism was not all we ingested from the superabundant harvest of western civilisation. There was Marxism, socialism, secularism, democracy….
That these contradictory ideas could lodge in a single head seems extraordinary today, but one must keep in mind the fact that we had been ruled for two hundred years, and rendered incapable of thinking for ourselves.
Take the Middle Eastern expression for nationalism: when it first arrived there, it was known (correctly) as the 'Frankish idea'. The accompanying physical malady that accompanied it was known as the 'Frankish disease'. Now, syphilis has the same effect on the brain as the Frankish and other assorted ideas. Therefore, we were able to accommodate all sorts of opposing ideologies in one diseased brain.
The climax of these intellectual developments, if lunacy can be credited with development, was the 1972 constitution of Bangladesh. Nationalism was part of it; as was nationalisation of all industry in solidarity with the workers of the world (but – heaven forbid – not the nationalisation of land). How Bengali nationalism could appeal to a Czech factory worker was beyond comprehension. The architects of the constitution wished to create a paradise on earth – but for Bengalis only. But 'Bengalis' also designated those living in West Bengal in India. So, Bengali paradise was not for West Bengalis. Yet nationalism reached across the border….In other words, the constitution was a cocktail meant for immediate inebriation.
In fact, one can't blame the pater patriae for kicking over that piece of paper as a colonial-period relic: it was really just that.
A constitution not in keeping with the culture, the 'manners', to use de Tocqueville's expression, of the people must be worth less than the paper it is printed on. Indeed, it is not worth less, but worthless.
Friday, November 20, 2009
Vendetta in Bangladesh
15 August, 1975 Sheikh Mujibur Rahman and part of his family killed
June, 1996 His daughter Sheikh Hasina comes to power after western donors restore democracy
April, 2001 High Court confirms death sentences for 12 of the accused
October, 2001 Shaikh Hasina loses election and Khaleda Zia becomes prime minister
December, 2008 Sheikh Hasina reelected
August, 2009 Final appeal hearing begins
November 19 2009 Appellate division confirms judgment of death by hanging
Thus, we see that the case had lain dormant, under the protective mantel of an Indemnity Ordnance, promulgated by President Khandker Moshtaque Ahmed, and later ratified by General Zia as Indemnity Act of 1979.
The "assassins" were rewarded with lucrative posts and given heroes' status by every subsequent government until the election of 1996 produced Sheikh Hasina, daughter of Mujib. She had survived the killing becasue she had been out of the country in 1975.
Therefore, the pattern that emerges is this: killers are hailed as heroes till 1996, the dynasty acquires state power in that year, loses it in the election of 2001, when proceedings against the killers stop, and are resumed again after Hasina, the daughter, returns to power in December, 2008.
A personal vendetta? A lynching? Victors justice? All three.
I remember the day as if it were yesterday. I was fourteen, and I lived in Dhanmandi, very near the scene of the killing. At dawn, I heard the booming of guns, and woke up in fear. Later, we learned that Mujib and his family had been killed: there was rejoicing throughout the land!
Against this background, what are we to make of the Supreme Court verdict? Well, to put it mildly, it opens up an enormous gap between law and morality. The law must posit that every killing in peacetime is murder; but a moment’s consideration will show that morality can never posit that every killing in peacetime is immoral. Was the killing of Caligula murder? Certainly. But was it immoral? Certainly not.
Furthermore, we cannot consent to the proposition that the law, and the legal process, is always just.
Take Chief Justice Taney. A devout Catholic, he had emancipated all his slaves; yet, when the Dred Scott case came up, he had to assert that 'a black man has no rights'. When the Bengal terrorists were gunning down British officers and, after due process, were being carted off to the Andamans, Bengalis hated the English for that: now, several streets in Calcutta are named after 'terrorists'.
Moreover, the Supreme Court, respect for which must be implanted in the heart of every citizen if we are to live in peace and with a clear conscience, has been sullied by a case that was basically moral, not legal. Now, no one, except the narrow band of fanatics devoted to the House of Mujib, who reck with neither morality nor logic, will regard the ‘due process’ as little more than an elaborate charade. The Supreme Court came into bad odour the day democracy was introduced: December 6, 1990. On that day, after General Ershad resigned, the Chief Justice became president, instead of the vice-president per constitution; later, he had this illegality legalized when parliament sat and passed two amendments. Since then, no one has ever believed that the Supreme Court is above politics.
Now, they will say, there goes the last institution to the democratic dog.
June, 1996 His daughter Sheikh Hasina comes to power after western donors restore democracy
April, 2001 High Court confirms death sentences for 12 of the accused
October, 2001 Shaikh Hasina loses election and Khaleda Zia becomes prime minister
December, 2008 Sheikh Hasina reelected
August, 2009 Final appeal hearing begins
November 19 2009 Appellate division confirms judgment of death by hanging
Thus, we see that the case had lain dormant, under the protective mantel of an Indemnity Ordnance, promulgated by President Khandker Moshtaque Ahmed, and later ratified by General Zia as Indemnity Act of 1979.
The "assassins" were rewarded with lucrative posts and given heroes' status by every subsequent government until the election of 1996 produced Sheikh Hasina, daughter of Mujib. She had survived the killing becasue she had been out of the country in 1975.
Therefore, the pattern that emerges is this: killers are hailed as heroes till 1996, the dynasty acquires state power in that year, loses it in the election of 2001, when proceedings against the killers stop, and are resumed again after Hasina, the daughter, returns to power in December, 2008.
A personal vendetta? A lynching? Victors justice? All three.
I remember the day as if it were yesterday. I was fourteen, and I lived in Dhanmandi, very near the scene of the killing. At dawn, I heard the booming of guns, and woke up in fear. Later, we learned that Mujib and his family had been killed: there was rejoicing throughout the land!
Against this background, what are we to make of the Supreme Court verdict? Well, to put it mildly, it opens up an enormous gap between law and morality. The law must posit that every killing in peacetime is murder; but a moment’s consideration will show that morality can never posit that every killing in peacetime is immoral. Was the killing of Caligula murder? Certainly. But was it immoral? Certainly not.
Furthermore, we cannot consent to the proposition that the law, and the legal process, is always just.
Take Chief Justice Taney. A devout Catholic, he had emancipated all his slaves; yet, when the Dred Scott case came up, he had to assert that 'a black man has no rights'. When the Bengal terrorists were gunning down British officers and, after due process, were being carted off to the Andamans, Bengalis hated the English for that: now, several streets in Calcutta are named after 'terrorists'.
Moreover, the Supreme Court, respect for which must be implanted in the heart of every citizen if we are to live in peace and with a clear conscience, has been sullied by a case that was basically moral, not legal. Now, no one, except the narrow band of fanatics devoted to the House of Mujib, who reck with neither morality nor logic, will regard the ‘due process’ as little more than an elaborate charade. The Supreme Court came into bad odour the day democracy was introduced: December 6, 1990. On that day, after General Ershad resigned, the Chief Justice became president, instead of the vice-president per constitution; later, he had this illegality legalized when parliament sat and passed two amendments. Since then, no one has ever believed that the Supreme Court is above politics.
Now, they will say, there goes the last institution to the democratic dog.
Saturday, August 23, 2008
Justice B. B. Roy Chowdhury on the events of December 6, 1990, and more....
The late Justice Bimolendu Bikash Roy Choudhury was one of the finest and most upright gentlemen it has been my pleasure to know. His respect for the constitution was such that he was furious with the events of December 6, 1990 – years after they were over – for he realised the long-term consequences of the fateful day.
December 6, 1990. President General H.M.Ershad resigns and hands over to the Chief Justice. Chief Justice Shahabuddin, rather than the then vice-president (as was demanded by the constitution), becomes acting president. The former vice-president belonged to General Ershad’s party, and, to have him excluded, the constitution was gleefully raped by lawyers, intellectuals, donors – and the Chief Justice. After elections, the chief guardian of the constitution had the constitution amended – by the 11th and 12th amendments [*] – by Parliament to legalise this act of illegality! And we had been taught to believe that the doctoring of constitutions was the prerogative only of military dictators!
The chief guardian of the constitution had become its chief violator, and, henceforward, none in this nation can ever believe that, in the face of sufficient international and domestic pressure, the highest court of the land, the only independent institution of the country, will never cave in.
Justice Chowdhury had great respect for General Ershad. He told me that the General had never tried to influence the judiciary. This was in stark contrast to the – democratically elected – Awami League, whose ministers took tot he street with sticks when the learned judges declared themselves too embarrassed to hear the appeal against the killers of Sheikh Mujibur Rahman. A lower court had found the men guilty and has decreed that they be executed by "firing squad" – which is not allowed in Bangladesh, as the judge well knew – and, if that were not possible, by hanging. One can imagine the pressure that had been brought to bear on the magistrate, or his enthusiasm for the ruling party and its leader and prime minister at the time, Sheikh Hasina, daughter of Sheikh Mujib. One can imagine to what depths of barbarity we had descended when we reflect that our ministers carried sticks – against the judges!
Another interesting fact that Justice Chowdhury imparted to me (a fact that is never mentioned in our papers) was that General Ershad had tried again and again to separate the judiciary and the executive – and had repeatedly been frustrated by the bureaucrats. Our newspapers like to paint General Ershad as a "brutal dictator" – the facts speak otherwise. What kind of a "brutal dictator" tries to separate the executive (which he heads) from the judiciary. It was tantamount to trying to cut off his own legs!
And then in 1996 – after the Awami League shut down the country for several months and the ruling BNP tried to cling to power in a farcical election – some genius had the diabolic foresight to bring the Supreme Court into the democratic process by instituting a system of caretaker government before every poll – the chief caretaker being the last retired judge of the Court!
The Court, as was to be expected, became highly politicised – just like the bureaucracy and the army had been – and finally the western donors had to ask the army to take over on January 11, 2007: we had politicised every institution and faced near-civil war.
[*]
The appointment of, and the administration of oath to the Chief Justice of Bangladesh as Vice-President on the 21st day of Agrahayan, 1397 B.S. [local calendar] corresponding to the 6th day of December, 1990, and the resignation tendered to him by the then President and all powers exercised, all laws and Ordinances made and all orders made, acts and things done, and actions taken, or purported to have been made, done or taken by the said Vice-President acting as President during the period between the 21st day of Agrahayan, 1397 B.S. corresponding to the 6th day of December 1990, and the date of commencement of the Constitution (Eleventh Amendment) Act, 1991 (Act No. XXIV of 1991) (both days inclusive) or till the new President elected under article 48(1) of the Constitution has entered upon his office (whichever is later), are hereby ratified and confirmed and declared to have been validly made, administered, tendered, exercised, done and taken according to law. (The Constitution of The People’s Republic of Bangladesh, Section 21, Fourth Schedule [Article 150])
December 6, 1990. President General H.M.Ershad resigns and hands over to the Chief Justice. Chief Justice Shahabuddin, rather than the then vice-president (as was demanded by the constitution), becomes acting president. The former vice-president belonged to General Ershad’s party, and, to have him excluded, the constitution was gleefully raped by lawyers, intellectuals, donors – and the Chief Justice. After elections, the chief guardian of the constitution had the constitution amended – by the 11th and 12th amendments [*] – by Parliament to legalise this act of illegality! And we had been taught to believe that the doctoring of constitutions was the prerogative only of military dictators!
The chief guardian of the constitution had become its chief violator, and, henceforward, none in this nation can ever believe that, in the face of sufficient international and domestic pressure, the highest court of the land, the only independent institution of the country, will never cave in.
Justice Chowdhury had great respect for General Ershad. He told me that the General had never tried to influence the judiciary. This was in stark contrast to the – democratically elected – Awami League, whose ministers took tot he street with sticks when the learned judges declared themselves too embarrassed to hear the appeal against the killers of Sheikh Mujibur Rahman. A lower court had found the men guilty and has decreed that they be executed by "firing squad" – which is not allowed in Bangladesh, as the judge well knew – and, if that were not possible, by hanging. One can imagine the pressure that had been brought to bear on the magistrate, or his enthusiasm for the ruling party and its leader and prime minister at the time, Sheikh Hasina, daughter of Sheikh Mujib. One can imagine to what depths of barbarity we had descended when we reflect that our ministers carried sticks – against the judges!
Another interesting fact that Justice Chowdhury imparted to me (a fact that is never mentioned in our papers) was that General Ershad had tried again and again to separate the judiciary and the executive – and had repeatedly been frustrated by the bureaucrats. Our newspapers like to paint General Ershad as a "brutal dictator" – the facts speak otherwise. What kind of a "brutal dictator" tries to separate the executive (which he heads) from the judiciary. It was tantamount to trying to cut off his own legs!
And then in 1996 – after the Awami League shut down the country for several months and the ruling BNP tried to cling to power in a farcical election – some genius had the diabolic foresight to bring the Supreme Court into the democratic process by instituting a system of caretaker government before every poll – the chief caretaker being the last retired judge of the Court!
The Court, as was to be expected, became highly politicised – just like the bureaucracy and the army had been – and finally the western donors had to ask the army to take over on January 11, 2007: we had politicised every institution and faced near-civil war.
[*]
The appointment of, and the administration of oath to the Chief Justice of Bangladesh as Vice-President on the 21st day of Agrahayan, 1397 B.S. [local calendar] corresponding to the 6th day of December, 1990, and the resignation tendered to him by the then President and all powers exercised, all laws and Ordinances made and all orders made, acts and things done, and actions taken, or purported to have been made, done or taken by the said Vice-President acting as President during the period between the 21st day of Agrahayan, 1397 B.S. corresponding to the 6th day of December 1990, and the date of commencement of the Constitution (Eleventh Amendment) Act, 1991 (Act No. XXIV of 1991) (both days inclusive) or till the new President elected under article 48(1) of the Constitution has entered upon his office (whichever is later), are hereby ratified and confirmed and declared to have been validly made, administered, tendered, exercised, done and taken according to law. (The Constitution of The People’s Republic of Bangladesh, Section 21, Fourth Schedule [Article 150])
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