Misadventures in constitution-making, 1972 edition

Posted in history, politics by jrahman on August 9, 2011

I wasn’t going to say anything about the 15th Amendment.  But I think it is important to note, for the record, that not only is the amendment solely about AL’s attempt to prolong its hold on power, but also that it actually increases the probability of a military coup.

So consider that noted.

Meanwhile, it’s a good idea to re-post some prophetic words about our overprescriptive constitution — not the amended versions, but the 1972 original.  Abul Mansur Ahmed, one of the intellectual architects of Bangladesh, in his memoir আমার দেখা রাজনীতির ৫০ বছর  (50 years of politics as I saw it) sounded some warnings about our constitution.  I translated these warnings, from নয়া অধ্যায়, উপাধ্যায় ৮ সংবিধান রচনা, ৩ সংবিধানের বিধানিক ত্রুটি  (New Chapter, Sub-chapter 8 Writing the constitution, 3 Legal flaws of the constitution) in UV in September 2010.  These are posted over the fold.

Published in November 1973, before the coups, assassination, and Bakshal, Mr Ahmed is incredibly prescient.  Judge for yourself.

And then worry about the danger that may await us yet.

50 years of politics as I saw it, New Chapter, Sub-chapter 8 Writing the Constitution, 3. Legal flaws in the constitution — Abul Mansur Ahmed

Democracy, socialism, nationalism and secularism: these four high ideals have been made the fundamental principles of our state.  I am a strong supporter of all four.  Not just an ordinary supporter, the support extends to the level of high ideals.  I strongly believe that each state must become secular democratic nation-state in the modern era.

But I am of the opinion that none of these are matters to be specified as high ideals or fundamental principles in the constitution.  Except for democracy, all the rest are government policy, not state principle.  If democracy is established in the country, all the other good deeds are guaranteed.  Good deeds here mean whatever enhances public welfare; and these deeds are done reflecting public will.  Nationalism, socialism and secularism are all public welfare enhancing, and therefore they improve the welfare of a democratic state.  Untramelled democracy is the guarantee of that welfare.  Unless democracy is safe, none of the others are safe.

That’s why, once democracy is guaranteed in the constitution, it is better to limit conversations about other matters.  Just as in normal conversation, so it is in constitution that more verbose the discussion of a subject is, the higher the probability of a mistake.  That’s why the constitution — which is the supreme law of the land — should focus on safeguarding untramelled democracy, leaving all the other good deeds to legislations passed by the parliament.  If this is not done, and legislative matters are incorporated into the constitution, that constitution loses its permanency, sanctitiy and immutability.  Any party with a large enough electoral victory will change the constitution according to their liking — if that’s the situation then the constitution is worthless.

Let me prove the flaw of our constitutionmakers with a specific example.  It’s about socialism.  Socialism is an economic policy.  There was no need to make it a fundamental principle of the constitution.  In an undeveloped country like Bangladesh, any democratic party with ‘establishment of socialism’ as a party programme will receive massive public support.  Even then, Awami League has compulsorily adopted socialism as a fundamental principle in the constitution.  On this matter, I advised the Awami League leadership verbally and through newspapers to follow the Indian leader Pundit Jawaharlal.  In the current era, Jawaharlal is the only leader in democratic world who tried to establish socialism through democracy throughout his life.

But instead of Jawaharlal-led Congress, the Awami leadership has chosen to follow the Muslim League led by Chowdhury Mohammad Ali.  And by doing so, the Awami League leadership has misinformed in the preamble to the constitution, just like the Muslim League did.  Preambles to both constitutions of Pakistan claimed the ‘The founder of Pakistan, Qaid-e-Azam Mohammad Ali Jinnah, wanted Pakistan to be an Islamic democratic state’.  This is not true.  Qaid-e-Azam, in his inaugural speech to the Constituent Assembly clearly said that ‘the state has nothing to do with religion’.  Pakistan’s constitution-makers wanted an ‘Islamic state’, and that’s why they misinformed in the name of Qaid-e-Azam as rationale.

Our constitution-makers did the same thing.  In the preamble, they also claimed that ‘Great ideologies of nationalism, socialism, democracy and secularism motivated our brave people to participate in the struggle for national liberation and our valiant martyrs to sacrifice their lives’.  As a matter of fact, this is not correct.  Our struggle for liberation started with the 6-points of the Awami League and the 11-points of the All-party Student Action Committee.  None of these points had those ideologies.  Other than these two ‘points’, Awami League also had a manifesto.  That doesn’t mention these ideologies either.  Rather, that manifesto demanded nationalisation of ‘bank, insurance, the jute sector and heavy industry’.  Awami League fought and won the 1970 election with those points and manifestos.  Then, before or during the liberation struggle, the people, freedom fighters or the martyrs had neither the need nor the chance to produce a new point of manifestor.  It was our constitution-makers who wanted to include those great ideologies into the constitution.  And that’s why they misinformed in the name of the people and the freedom fighters.

Across time and space, many politicians have claimed their ideology to be the public will.  It’s not that this has always led to a bad outcome.  But nor has it always produced good.  Just as with ‘Islam’ in the case of Pakistani constitution, so it is with the unwarranted mention of ’socialism, nationality and secularism’ in our constitution have harmed us.  This has created many complicacies in our national and state lives.  Our statesmen will be much troubled to untangle the knots of these complicacies.

I said at the time of writing the Pakistani constitution that ‘Instead of trying to defend Islam in Pakistan, try to defend democracy.  Democracy is the guarantee of religion.’  I also told the constitution-makers of Bangladesh that ‘Socialism faces no danger in Bangladesh, all dangers are faced by democracy.  Cure democracy, and socialism will automatically become healthy’.  Just like Pakistani leaders, our leaders didn’t listen to this ‘old man’s ramblings’.  Pakistani leaders harmed her by trying to make Islam a political weapon.  I feat about our leaders harming our state by trying to use ’socialism’ as a political weapon.  There is a powerful element among our leaders and youth who believe that democracy and socialism cannot go together.  There was also a powerful element amongst Pakistan’s opinionmakers who used to say Islam and democracy cannot go together.  Some influential leaders in Bangladesh have openly declared that ‘if democracy and socialism can’t go together after all, then we’ll give up democracy and take up socialism’.  On the other hand, replying to this, some other leaders have said that ‘if the two can’t go together then we’ll give up socialism and take up democracy’.  Reliance on the people will make this give up / take up unnecessary.

The danger, however, is that those of us who believe in revolution don’t rely on the people.  Mashallah there is no shortage of revolutionary among us.  There are many amongst the leaders who call our struggle for independence a revolution and our government a ‘revolutionary government’.  If they perform a ‘revolution’ in the conflict between socialism and democracy, then the defeat of democracy is inevitable.  Even if such a revolution doesn’t consult the valiant people, it will still be sold as the will of the valiant people.  The western democracy will be called bourgeoise democracy.  The democracy of the proletariat is far superior.

There are many a danger signs in our constitution.  The main one amongst them is that if an elected MP leaves or is expelled from the party, their MP-ship will automatically lapse.  This signifies that election by the voters is nothing, the party nomination is what matters.  This is precursor to one party rule and party dictatorship.  And party dictatorship leads to autocracy.  That’s where the danger to democracy is.

There are even more dangers yet.  Democracy is ailed when it’s qualified by an adjective.  Readers would have seen it in Pakistan and elsewhere.  Similarly, when a republic is qualified in the name of a state, it must be exceptional.  Republic means people’s rule.  If it is doubly guaranteed by the name People’s Republic, then it won’t be surprising if that starts resembling ‘basic democracy’.

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