The Constitution is neither Bible nor play-thing

This article appeared in the Daily Star issue of Tuesday 5th December 2006


"In a situation where politics takes to the streets, the niceties and literal meanings of the Constitution lose their significance and the Constitution becomes less important than the demands of the people." Moudud Ahmed, "Democracy and the Challenge of Development."
I have just been reading General Pervez Musharraf's book, "In The Line Of Fire." When I reached the chapters where he discusses different palace intrigues in Pakistan, I had a flashback to my days as a student when we would read all about the scheming of people like Ghulam Muhummad, Iskandar Mirza, Ayub Khan, and other Pakistani politicians of the time. Later I would see how Yahya Khan, Bhutto and the Pakistani military and civil bureaucracy would destroy their own country just to try and retain their own power.

From General Musharraf's book it appears that Pakistan has not learnt its lessons. He writes how in 1998: "President Farooq Leghari tried to get the chief justice to claim that the constitutional amendment was unconstitutional. If the chief justice had done this, the president would have dissolved the National Assembly and dismissed the government of the errant Prime Minister Sharif. The prime minister convinced certain judges to take his side, and they passed a resolution against their own chief justice. Then the prime minister got his party goons to storm the Supreme Court building while the court was in session. Their lordships had to hide in their chambers to avoid a thrashing, or worse." It seems that Pakistan had learnt nothing from its past political mistakes.

About his own takeover, General Musharraf claims that Prime Minister Sharif attempted a coup through an illegal order, and that his army commanders merely carried out a counter-coup. He says that martial law was not declared and the Constitution was kept operational, excepting a few clauses. He also cites the May 2000 Supreme Court judgement where his assumption of power was upheld, but two conditions were applied. First he was required to hold elections in three years, and second, that he could not introduce any "structural" changes in the constitution that would change the "salient features." General Musharraf says: "This meant that correcting a dysfunctional democracy would have limitations." He goes on to say: "On closer analysis, however, I realised that my basic idea of introducing sustainable democracy in Pakistan could be achieved within these constraints. Our new system of local government, the bedrock of any democratic system, was provided for in our constitution but had never been implemented by politicians, who, selfishly, did not wish to devolve power to the grass roots." What, in fact, he is trying to say is that the need of the people has to take priority over the written word. He quotes a letter written in 1864 by Abraham Lincoln:

"My oath to preserve the Constitution imposed on me the duty of preserving by every indispensable means that government, that nation, of which the Constitution was the organic law. Was it possible to lose the nation and yet preserve the Constitution? By general law life and limb must be protected, yet often a limb must be amputated to save a life, but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation."

About his own government, General Musharraf says: "I preserved both the limb and the body. But if there ever had to be a choice, the body would outweigh the limb." Pakistan's history of constitutionalism is at best sketchy. There is a cosy arrangement between the army, the politicians and civil society to freeze or suspend it from time to time. It is usually condoned by their superior courts. That they have learned nothing from their past mistakes is their problem. I had thought we were beginning to learn from our past. Alas, this is not to be.

Constitutional process in Pakistan
We suddenly have a profusion of people defending our Constitution. It cannot be touched, they say. Nothing will be tolerated outside the Constitution. We will live and die by the book, they seem to be shouting. But who are these people and why this sudden love for constitutionalism. The same people have spent the better part of their lives fighting against some constitution or the other. Starting from the birth of Pakistan, we did not have a constitution for the first decade. The Constituent Assembly passed a resolution in 1949, known as the Objectives Resolution. The principle of this resolution was opposed in East Pakistan, and it is this opposition that led to the birth of the Awami League on June 23, 1949, with Moulana Bhasani as its president and Sheikh Mujibur Rahman as one of the two joint secretaries.

The political leaders of East Pakistan continued to fight for a constitution that would give the province the autonomy it desired. They won the elections of 1954 on this and other programmes. However, when finally the first Constitution was framed in 1956, it did not reflect the wishes of many in East Pakistan. Consequently, Moulana Bhasani walked out of the Awami League, (which was in government, both in the province and the centre), in July 1957, to form the National Awami Party (NAP). In a year the Constitution was abrogated and Martial Law imposed in October 1958. The first Constitution was not accepted by the people.

The second Constitution of Pakistan was framed by Ayub Khan in 1962. From the start it was opposed by large sections of the people of East Pakistan. After the elections of 1965, it was apparent that the constitution did not address the needs of the Bengali people. With the declaration of the Six-Point Programme, the movement against the constitution began. When Sheikh Mujib demanded "one man, one vote," it was virtually a rejection of the 1962 Constitution which was finally buried when, in March 1969, Ayub Khan illegally and unconstitutionally handed over power to the army chief, General Yahya Khan. After that the fight was for the people's right to be governed by the representatives they had elected. The result was the birth of Bangladesh. So we see, from 1949 to 1971, people fought against the constitutions of the time, because the needs of the people were far greater than what the constitutions provided.

Constitutional process in Bangladesh
Bangladesh's Constitution was adopted on December 16, 1972. Since then, it has had 14 amendments. In the process, the Constitution has been overhauled, changed beyond recognition, buried, revived and more. The 4th Amendment in 1975 changed the Constitution from a parliamentary system to one party rule. Subsequently, Martial Law was imposed and the Constitution suspended. The 5th Amendment in 1979 legalised all martial law actions, proclamations and regulations during the interim period. The 6th Amendment in 1981 was to serve one party and one man. It appeared that the BNP nominee for the presidential election, Acting-President Abdus Sattar, as Vice-President, was holding an office of profit in the Republic. The amendment was carried out so that a section of the then BNP could push for a candidate opposed by another section of the party.

Martial Law was declared in March 1982, and the Constitution was again suspended. The 7th Amendment in 1986 ratified all actions of the intervening Martial Law period of General Ershad. The 8th Amendment made Islam the state religion, and created six permanent benches of the High Court Division outside Dhaka. Subsequently, the Appellate Division of the Supreme Court struck down the provisions relating to the High Court Benches outside Dhaka on the grounds that the Amendment changed the fundamental character and structure of the Constitution, and it was not tenable in law. The 9th Amendment restricted the tenure of the president to two terms and provided for an elected Vice President. The 10th Amendment created thirty reserved seats for women in Parliament.

Anti-autocrat movement
The anti-autocrat movement of 1989/90 was participated by all political parties opposed to President Ershad. As the movement gained momentum and raced to a climax, a constitutional problem rose. How was Ershad to transfer power? The agreed formula was that President Ershad would dissolve Pparliament and his cabinet, the vice-president would resign, an agreed person (Chief Justice Shahabuddin Ahmed) would be appointed vice-president, the president would then resign and the new vice-president would become acting-president. But this formula was outside the scope of the Constitution. The office of the vice-president, after the 8th Amendment, was an elected position and he could not be removed by the president. Even if he resigned voluntarily, the appointment of the new vice president would have to be ratified by the parliament. Since the Parliament was to be dissolved, the appointment of a new vice-president would be unconstitutional. That did not deter then opposition, which included Begum Zia and many members of her last cabinet, to insist that Ershad carries out their demands.

The happenings are best described by then Vice President Moudud Ahmed: "When it was pointed out to him (Ershad) that there were constitutional implications if the parliament was dissolved before the vice president was elected by parliament, the president replied that they i.e. the opposition would have this and other legal lacunae rectified and ratified with retrospective effect by the newly elected parliament. The vice president (Moudud) agreed with this opinion."

The 13th Amendment for Non-Party Care-Taker Government
The 11th Amendment was done again for one person, to allow Chief Justice Shahabuddin Ahmed to return to the Supreme Court. The 12th Amendment saw our Constitution change from a presidential form of government to a parliamentary one. Within three years of this amendment, a popular movement started for a provision in the Constitution for a neutral, non-party caretaker government to ensure fair elections. By the end of the term of this parliament most opposition members had resigned, and the parliament did not have the requisite majority to amend the Constitution. General elections were held in February of 1996, and the newly formed parliament met to decide only one issue, the draft bill for the 13th Amendment. The bill was sent to a select committee of Members of Parliament chaired by the then Law Minister Jamir Uddin Sarkar.

The original outline of the bill had been prepared by the opposition, but the select committee made some changes. During discussions in the committee, Barrister Ziaur Rahman Khan, MP, disagreed on having the president as a last resort for the position of chief advisor. He argued that it would be self-defeating to put all powers in the hands of one person. The chair assured him that this was an unlikely event as there would be many other options to be exhausted before it reached this situation. In fact, when the law minister introduced the bill in Parliament, he said that the chief advisor would the chief justice who, among retired chief justices, retired last. He then went on to say that if such a retired chief justice was not available, or was unwilling to hold the office, it would go to the next retired chief justice, and the next and the next. If my memory has not failed me, he mentioned up to four such retired chief justices. In fact the framers of the Amendment envisaged a "pool of retired chief justices" from whom the chief advisor would be selected. That is why Article 58C (4) starts by stating: "If no retired Chief Justice is available ..."

90 days is not sacrosanct
Most constitutional amendments and changes are done less with the future in mind, and more to correct omissions and fears of the past. This is self-evident from almost all the amendments we have seen. If we look at the 12th Amendment, we will see that our fears of an autocratic president made us strip the office of president of all powers. As a result presidents under the present system have no knowledge of statecraft or governance, and can do nothing except blindly sign what the prime minister sends to them. Unfortunately, our present incumbent does not realise that circumstances have changed, and he continues to do the job he has been taught to do in the last three years.

Part VII of the Constitution deals with elections. This was a part of the original Constitution as amended from time to time. Art 123 (3) says a general election of members of Parliament will be held within ninety days after Parliament is dissolved. It is the same case with bye-elections to a vacant seat, when an election is to be held within ninety days of the vacancy (Art 123 (4). The 12th Amendment had foreseen the possibility that an election may not be held in 90 days, and it added a proviso to Art 123 (4) where it says "Provided that in a case where, in the opinion of the chief election commissioner, it is not possible, for reasons of an act of God, to hold such election within the period specified in this clause, such elections shall be held within ninety days following next after the last day of such period." What is an act of God? Some will say is natural disasters. Others will argue everything is an act of God as we are all his creatures and we are beholden to him for everything.

Some will argue that this clause relates only to causal vacancies and not general elections. Can it be that twenty years after Article 123 was adopted, the 12th Amendment only made this proviso for a causal vacancy, and not for a greater purpose? Now that general elections are before us, what happens if, God forbid, Bangladesh is hit with a natural disaster around the middle of January. Remember 1970.Can elections be held in time? If elections are held in February, will Bangladesh cease to exist? Then again, the 13th Amendment does not impose a specific time limit on the caretaker government. Perhaps the framers envisaged that it could take anywhere between 90 to 120 days to level the playing field and hold a credible election. Then why are we all fixated with this 90 day period? A senior friend told me the other day that only an insane person would think that the 90 day period is more important then the welfare of this nation.

So let every citizen ask himself, what is more important, the legal interpretation of a minor Constitutional sub-clause, or an end to the crisis facing the nation. Let politicians reflect on their past. Did you not argue that people's interest comes before everything else? Time is fast running out. The differences are now very minor. The advisors are ten honourable persons who are working without self-interest. Let us raise ourselves to their level. Let us also put self-interest behind us. Let us now agree to hold a fair and just election.

I am a person who firmly believes in the Constitution and rule of law. What I have tried to put forward is examples where people's needs have been put above the Constitution. However, I am firmly convinced that any action we take to level the playing field towards holding a free and fair election will not in any way go against, or be a violation of, the Constitution We should not have any fear. Allah will be with us.