Monday, July 11, 2011

Constitutional Crisis Adds To Instability, May Spark Anarchy

The long feared season of instability has begun to strike terror in the heart of the ordinary people. Streets look deserted. Billowing smokes from charred vehicles scare poor hawkers off their daily avocations.    A hurriedly concluded scheme to alter the Constitution has accentuated this already precipitous slide toward what seems like an inexorable move toward anarchy. This 48- hours- strike may be a prelude to many more prolonged ones. There is blood in the horizon.         Shot from without    This nation is now plagued by a combination of political, economic and constitutional crises; prompting the most suave-and the otherwise dispassionate-Indian Prime Minister, Manmohan Singh, to forewarn an unpredictable political transition to hit home sooner. Yet, our ruling party leaders are too complacent. They think there's no alternative other than them. The French proverb " Apr├Ęs moi, le deluge" is as pet a deduction within our kitchen cabinet as is the buzzword recession in the West.    That Dr. Singh did utter such a caution prior to his official visit here shall evoke more curiosity, although his view is a view from without. Within the nation, one finds the vital institutions facing impending dismemberment or incapacitation; due to too many police chiefs being in custody, too many generals being on the run or in captivity, and, too many political dissidents being subjected to cruel and degrading treatments. The Parliament, on the other hand, has long been a one-party monologue of monotony, obsessed in composing and singing its own eulogy.         Precedent overlooked    The Constitution is the solemn charter of the people. Its amendments must be inclusive of public opinion from all spectrum of the society. It must also be reflective of the unified national desire. The manner in which a Constitution is amended speaks about the degree of deference a government attaches to the rule of law.    Constitutional amendments in Australia and the Republic of Ireland require that they are placed before the people for voting after being passed by the legislature. In Denmark, once an amendment is approved by the parliament, a general election must be held and the new parliament must approve the amendment again before it is finally submitted to a referendum.    In Canada, there are five different methods of amendment set out in the Constitution, each relating to the specificity of the proposed amendments. Most of the methods require the consent of various provincial legislatures too, following the passage of an Act by the federal parliament.    In the USA, any constitutional amendment must be mooted by a joint resolution by the ruling and the opposition parties. Once passed, it is taken as being reflective of the public desire and does not require a Presidential assent.         Hurried move    The failure of our President to refer the 'relevant' Amendments to a referendum constituted a serious omission in discharging his constitutional obligations, which the Article 48 guided him to do in a manner that 'shall take precedence over all other persons' and shall conform to the Constitutional and other legal standards. We may understand why it happened in the manner it did. That, however, must not preclude us from analyzing the intricacies involved in it.    Every circus needs a joker. The lingering circus of the Constitutional Amendments was destined from the beginning to using the President as the gullible joker. That is what has led.    President Zillur Rahman signed the 15 th Amendment bill into a law on July 3 , within 72 hours of its passing by a Parliament where opposition members were absent. The amendment brought 55 changes to the Constitution, some of them involving the revival of the 1972 Constitution. Such a sea change occurred in a hurry; the lapse between the SC verdict in May - that the "Constitution ( Thirteenth amendment) Act 1996 ( Act 1 of 1996) is prospectively declared void and ultra vires the Constitution"-and the enactment of the 15 th Amendment Act being only weeks apart.    The caretaker system too having been annulled in the process, the BNP and the other opposition parties do have an issue relating to their participating in an election under the ruling party. That is the political dimension of the crisis. The legal dimension is: The nation will hold the AL-led government responsible for amending the Preamble to the Constitution without seeking public mandate through a referendum, as was required.         Procedural pitfalls    The exercise was a purely partisan manoeuvring of narcissist vintage, and, it has added more fuel to the frenzy of instability that the nation has been enduring for too long. People are now braced for another prolonged spate of insecurity which may lead to anything, anytime, according to many observers.    This crisis is more ominous than what is being seen or felt. The Amendments have imperilled the fundamental principles of our State policy, which Part II (Articles 8-25) of the Constitution lays out elaborately and are ingrained firmly in the 'inviolable' Preamble of the Constitution. It's not that they couldn't be changed, if needed; but not in the manner the 15 th Amendment had done it. Yet, adamant to do it anyway, a legally correct way for the government would have been to amend Article 142 first, which contains the statutory guidelines relating to amending any provision(s) of the Constitution. Instead, by doing it through sheer majority prowess, and avoiding the mandatory guidelines, a gaping vulnerability is laid exposed for prospective judicial challenges to pounce upon it and to seek for instant annulment of these Amendments.    Article 142 contains a statutory definition of the word ' Amendment,' Article 142 (1)( a) being more explicit. It states: "any provision may be amended by way of addition, alteration, substitution or repeal by Act of Parliament," but not without complying with the procedures outlined in Article 142.    These procedures were wilfully violated. Article 142(1 A) explains the necessity of holding a referendum if the bill, passed by the two-thirds of the parliamentarians, proposes to amend the Preamble to the Constitution, or, Articles 8 , 48 , or 56 , in specific.    Article 8 , in particular, refers to the fundamental principles of state policy, the first subsection of which (ss 8(1)) saying, "The principles of absolute trust and faith in the Almighty Allah.....shall constitute the fundamental principles of state policy." The Preamble to the Constitution also states in para 2 : " high ideals of absolute trust and faith in the Almighty Allah....shall be the fundamental principles of the Constitution."         Preamble altered    The 15 th amendment removed ' Absolute Faith and Trust in Allah' from the Constitution; the alteration directly relating to and altering the Preamble, as well as Article 8. Above all, the revival of Article 12 to restore secularism is a substitute to that fundamental state principal, i. e., 'absolute trust and faith in Almighty Allah,' which came into force vide the Proclamation Order No 1 of 1977 , and, later, got ratified by the Parliament to be an integral part of the Preamble.    Finally, the word 'Allah' has been removed in the translation of Bismillahir Rahmanir Rahim, which too constitutes an alteration of the Preamble. The new translation reads, 'Absolute Faith and Trust in God.' Secularism denotes defiance of God and Allah, both. The replacement of Allah with God is politically pretentious, substantively hollow, religiously misleading.    Other major additions to the Preamble are the incorporation of the speech of Sheikh Mujibur Rahman, made on March 7 , 1971 ; the alleged declaration of independence by Sheikh Mujibur Rahman after midnight of March 25 , 1971 ; and, the proclamation of Independence declared at Mujibnagar on April 10 , 1971.    Playing with the preamble being a serious matter-politically and legally-it required of the President, pursuant to Article 142(1 A), to refer the proposed Amendments, within seven days after the passing of the bill at the Parliament, to the Election Commission for holding a referendum on the subject in order to obtain public opinion with respect to whether he (the President) should assent to such a bill, or not.    That is what the framer of the Constitution had intended to, aiming to absolving the President from any blame in such sensitive matters. But the President had squandered that opportunity. Earlier, he is on record for saying that his PM makes no mistake. Although many brushed aside his comment about the PM's infallibility as a mere satire, this intentional disregard for the rule of law is unlikely to be pardoned by the today's suffering multitudes, by the posterity, and a bloody history being bigoted by this agonizing ordeal of a nation in tears.