Abu Hena
‘Common Sense’ is the name of a popular pamphlet on the subject of American independence. This 47 page pamphlet which was sold for two shillings portrayed the notion of the hereditary succession as an evident absurdity rather than as a product of natural order and underscored the economic benefits of independence.
Thomas Paine, the author, concentrated on two central themes: That republican government was inherently superior to hereditary government and that equality of rights was the birthright of humanity which no just government could fail to support and defend. The truest genius of ‘Common Sense’ lay in its appeal, “O ye that love mankind, ye that dare oppose not only the tyranny but the tyrant, stand forth.”
What’s a common sense
Common sense is rare and also uncommon like the sense of balance and the sense of impending danger, when your hair stands on end. Common sense can portray the absurdity of the January 5 election, the oath–taking of the self-styled members of a strange parliament and the formation of a self-serving cocktail-like government on the basis of the same incredibly unreal parliament which does not exist according to the Constitution. The arguments are simple. The general election of January 5 was held under article 123, clause (3) and sub clause (a) of the Constitution which reads as follows:
(3) A general election of the members of Parliament shall be held (a) in the case of a dissolution by reason of the expiration of its term, within the period of ninety days preceding such dissolution; and (b) in the case of a dissolution otherwise than by reason of such expiration, within ninety days after such dissolution; Provided that the persons elected at a general election under sub – clause (a) shall not assume office as members of Parliament except after the expiration of the term referred to therein.
Common sense dictates that those persons who were deemed to have been elected by the voter- less election under sub- clause (a) could not have assumed office as members of parliament except after expiration of the term of the 9th Parliament. And what do we mean by the assumption of office as members of Parliament? Clause (3) of article 148 answers it: 148 (3). Where under this Constitution a person is required to make an oath before he enters upon an office he shall be deemed to have entered upon the office immediately after he makes the oath.
Article 123 read with article 148 makes it explicitly clear that the 153 candidates deemed to have been elected unopposed by interparty mutual arrangement and the other 147 elected by token votes on 5 January could not have taken oath and enter office of MP in the 10th Parliament before expiry of the 9th Parliament which takes place on 24 January. It is clear from the above arguments that the oath – taking of the persons deemed to have been elected to the 10th Parliament was unconstitutional. In the same premises, the cabinet which took oath on 12 January has no constitutional basis. We heard the octogenarian jurist Barrister Rafiqul Huq telling the press during the swearing- in ceremony that the government though illegal could do some good things. We wonder why people like Rafiqul Huq could not speak the plain truth which is clear to everyone and which everybody expects him to do.
The plain truth
Article 7 clearly states that all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, the Constitution. Article 11 commands that the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured. According to article 65 (2), the parliament shall consist of three hundred members to be elected in accordance with law from single territorial constituencies by direct election.
James Madison distinguished democracy from a republic. A democracy is popular government in which the people rule directly, as in ancient cities, and a republic is one in which the people rule indirectly through their representatives, who ‘refine and enlarge’ their views. Rousseau insists on the question of legitimacy and states that every legitimate government is republican. In a republic every vote counts, so without counting every vote that is allowed to be cast in an open, fair and inclusive election, a democratically elected representative republic does not exist. According to Alexis De Tocqueville, the French political thinker, the foundation of democracy is the principle or dogma of ‘the sovereignty of the people’:
Providence has given to each individual, whoever he may be, the degree of reason necessary for him to be able to direct himself in things that interest him exclusively. Such is the great maxim on which civil and political society in the United States rests. Extended to the entirety of the nation, it becomes the ‘dogma of the sovereignty of the people’.
By denying the right to vote to 90 percent of the voters the right to choose their representatives has been denied arbitrarily purposefully to serve the self- serving interests of the coterie who are in government. For that reason both the government and the parliament lack legitimacy and constitutionality. The essential element of representative democracy is a parliamentary opposition. The unlimited greed and frivolousness of HM Ershad’d party has shamelessly destroyed even the institution of parliamentary opposition which developed over the years.
Peoples’ demand rejected
Ninety percent of the people of the country took to the streets to demand the reinstitution of the provision of care taker government in the Constitution rescinding the 15th Amendment which was carried out in accordance with the SC judgment issued by a retired CJ 16 months after retirement when he was not under oath. Government rejected the people’s demand outright and suppressed all resistance to the partisan election with a heavy hand using the police force and the RAB who were willing to shoot unarmed protesters.
Now, unfortunately, an unconstitutional parliament and a government without people’s mandate have come to the fore, and a constitutional crisis has arisen that is sure to threaten the country’s peace, progress and stability. The new regime is more interested in looking after itself than the interest of the people. It has failed to protect the minority community from the election time violence perpetrated by the contending candidates, mainly belonging to AL who lost. It also failed to stop violence in polling centers, random ballot stuffing and atrocities committed against the few independent candidates. The police force that was quick to shoot unarmed protesters remained invisible when the minority communities struggled to cope with the attacks that followed the polls. The fire fighters were absent for unknown reasons and the district administration was busy elsewhere. This is criminal. The government has so far resisted all out public demand for an investigation by a judicial commission.
The day following the swearing in of the government 80 joint secretaries have been promoted as additional secretaries and an even larger number of assistant secretaries have been promoted as deputy secretaries on the same day. This has been done when election in 10 constituencies is not over yet. The bureaucracy, spoiled by the ‘spoils system’, which served the master so well in the election, was not ready to wait even for a day for the reward.
The jigsaw puzzle
For the international communities, especially the donor agencies, Bangladesh raises a dilemma as the development works will suffer if they do not work with the government that exists in some form or other. They are puzzled to decide how to help desperate people whose own government frowns upon all international relationships saying it does not care who recognizes it and who does not. For obvious reasons they cannot stay away from providing a life-line to an illegitimate and unpopular regime. Humanitarian imperative overrides qualms about giving handouts to a repugnant regime. At the moment there is no way to overstep the government that remains in power.
In theory it may be possible to obtain a UN resolution obliging the government to go for an inclusive election participated by all including the 18 party alliance in accordance with recognized principles. Awami League’s friends abroad, especially India may probably block such a move and it will be a question of coaxing the holders of power into accepting it. That way we can avoid the risk and disrepute of continuing with the unconstitutional government which may cause permanent damage to the democratic image of the country. The US Senate has passed a resolution in the same line asking for reform and an immediate participatory election. On our part we may press for a referendum on the 15th Amendment, and on the validity of the one- sided election and the legitimacy of both the unconstitutional government and the unreal parliament. If we sit idle with our fingers crossed the government’s irresponsible go– it – alone policies may render Bangladesh friendless in the world and bankrupt inside. We are at a breaking point. Our democratic base is out of patience. There is something deeper at work beyond politics. We have witnessed an epic failure of the establishment-political, financial, business, administrative and even cultural. There is a perception, largely accurate, that one set of rules applies to one group of people—well connected to the ruling clique- and another set of rules applies to the rest. Still there is reason to be optimistic because the smart populism is not dead. The regime’s shocking bungling response to the crisis might lead even some of its own members to wonder whether their leaders understand what they are doing.
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The writer was a member of parliament in 1996 and 2006.
Source: Weekly Holiday
