From weekly HOLIDAY:
After the Government decided to withdraw the appeal in respect of the decision regarding the Fifth Amendment to the Constitution, some people are saying that "Bismillah" will disappear and "secularism" will reappear. Others are saying that "Bismillah" will remain but "secularism" will reappear. Yet others presume that there will be "discontinuity" (whatever that means) and chaos.
MPs and Article 65
This writer understands one thing, and that is: the Constitution can be amended by two-thirds of the total members of Parliament according to Article 142, but the expression "members of Parliament" (MPs) definitely means persons elected under Article 65 of the Constitution. When the Constitution is suspended by extra-constitutional means fully or partially, there can't be an election under the Constitution whatever the then Chief Justice Muhammad Munir of Pakistan had said in support of martial law. 300 or so people entering the building, designed by architect Louis Kahn, by any means other than under the provisions of the Constitution do not constitute Jatiya Sangsad or Parliament. They have no authority to legislate anything, let alone amend the Constitution.
Similarly those who gate-crashed Bangabhavan or were dragged to that place were not our Presidents. One does not become a constitutional President merely by taking an oath. However, my intention today is only to offer my views on the title of this write-up. A complicated and serious subject like the Constitution is not my usual cup of tea. So I'll start in a lighter vein. I believe that the reader will not find it completely out of context.
I have a friend who is six feet tall, maintains good health and has always been neatly attired according to the latest sartorial vogue. In my youth I used to envy him; today I do it even more. Once while taking delivery of some clothes he had ordered earlier, a beautiful pair of suit belonging to another customer attracted his notice. He immediately asked the tailor to make a suit exactly like that one. As his measurement was already available with the tailor, my friend did not ask him to take it again. The tailor accepted the order and followed the word "exactly" exactly. The other customer, whose suit appeared attractive to my friend, was only five feet four inches tall. Since he is a very handsome man, my friend did not look bad at all in his new suit. He looked like a respectable scarecrow. Needless to say, the suit was soon discarded.
No bedtime story-book
The Constitution of a country is not a bedtime story book; it is of immense importance and significance. If it makes good reading and enshrines lofty ideals and modern humanitarian principles, it does not mean that it is suitable for every country. To be workable a constitution must relate its provisions to the reality prevailing in the country concerned. The history and traditions of the country have also to be taken into consideration.
At the end of 1972 the so-called '16th Division' was still at large roaming with an unaccounted number of arms and ammunition; political extremists of both the left and the right were wantonly killing each other in the countryside and thugs and extortionists of all degrees and dimensions were active everywhere. Since the Government had called the army 'in aid to civil power', I would say that the Government recognised the fact.
1972 Constitution: No emergency provision
Unlike the preceding constitutions of the sub-continent, the Constitution of 1972 did not even have the provision of preventive detention nor did it empower the Government to declare an emergency. But in 1974 emergency was declared according to the Second Amendment Act which had made provisions for it. The Constitution in its original form would perhaps work in the land created by Begum Rokeya in her Sultana's Dream. I do not blame the framers of the Constitution because the euphoria of our liberation had made all of us so optimistic that we lost sight of reality.
4 amendments in 25 months
The framers of the Constitution decided to amend it thrice (including the introduction of the provision of declaring emergency) before making their fourth and final "amendment" only within 25 months of its adoption. I have put the word amendment within quotation marks because of the remarks of Justice Shahabuddin: "... The Constitution Fourth Amendment Act, dated 25 January 1975, changed the Constitution beyond recognition in many aspects ... The change was so drastic and sudden; Friends were bewildered, Enemies of Liberation had their revenge and the critic said with glee that it is all the same whether damage to democracy is caused by democratically elected persons or by undemocratic means like military coup." (Anwar Hossain Chowdhury Vs Bangladesh 41DLR(AD) 165).
Drastically changed by framers
No hue and cry was raised by the protagonists of the Fourth Amendment and when in 1996 the Awami League (AL) won a majority in the Parliament, they elected Justice Shahbuddin the President though there were aspirants from among the party members. The Awami League deserves to be commended for their tolerance and objectivity.
The fact that the Constitution had to be so drastically changed by its creators within about two years of its adoption is an assertion that it wasn't suitable for us. Some people may be embarrassed by this statement and argue that the 1972 Constitution was suitable when it was adopted and the Fourth Amendment was the requirement of 1975. But this argument seems to lead us to an even more embarrassing situation. It amounts to saying that the Constituent Assembly in general and those steering the drafting of the Constitution in particular did not have the statesman-like quality of seeing only two years ahead. A Constitution of a nation is not a bundle of ad hoc regulations; it is the way of life a nation chooses for itself. It is meant to last a long time; more or less permanent.
Therefore, it is better to admit that the excitement of our liberation had made us adopt some provisions for which we were not ready. The Constitution of the USA was amended 27 times over the past 130 years or so. The Bill of Rights, which was ratified and became effective in 1791, is not considered a single amendment but it counts as ten amendments because it introduces 10 provisions. If we follow this system of counting, what was done in January 1975 would amount to more than 150 amendments as at least 150 items (articles, sub-articles, sub-sub etc) were changed, introduced or deleted.
I do not want to say whether or not 'secularism' should be inserted again in our Constitution because of the sensitivity of the subject and my ineptitude in dealing with such matters. There are many progressive and democratic countries where the concept of secularism is respected, but they refer to the Divine authority in the preamble or in the articles of their constitutions. These constitutions also ensure religious freedom. Most democracies of West Europe and other developed nations have such provisions. The word 'secular' or 'secularism' is found in only a few constitutions. To save space I'll give only one example. In deference to the country's architect Sheikh Mujibur Rahman, who had more than once expressed his desire to make Bangladesh the Switzerland of the East, I have chosen the Constitution of Switzerland. The preamble of the Swiss Constitution begins with "In the name of God Almighty! We the Swiss People and the Cantons..." and Article 15 ensures freedom of faith and conscience.
US: "In God we trust"
Those who do not want to invoke divine blessings in the Constitution should try to find the answer to this question: What is it that the Americans respect the most? -- US Constitution! Democracy! Freedom of Speech! Hollywood Stars! Religious Leaders! Art and Literature! Iraq, Afghanistan and Pakistan! -- WRONG. Is it money? RIGHT. That is why they have inscribed the words "IN GOD WE TRUST" in their bank note and God seems to have taken note of that. Everybody accepts the USD. I simply love it.
I wish my employer paid me as many USD as the number of Taka I receive. Please don't misunderstand me. I am not saying this for any mundane gains but because USD trusts God while most other currencies rely on His humble creations like kings, chancellors and governors. I don't know of any case where by invoking Divine blessings someone became a loser. Bangladesh, India and Pakistan may be different in terms of political status (due to pressure from religious extremists, the desire to create chaos and division by the departing colonial power and finally because all of us agreed to take a wrong turn in 1947) but they are inseparable historically, similar in cultural and absolutely the same insofar as religiosity or as adherence to religion is concerned.
As I already said that I don't want to enter into the argument of whether the Constitution of Bangladesh should reintroduce the word 'secularism' as we are more emotional and less rational while dealing with this subject. I will only mention what India gained by introducing the word 'secular' so that we might draw lessons from there. The old adage is true. For good or for evil what Bangladesh thinks today the rest of India thinks tomorrow.
Indian Constitution: 42nd amendment
In 1976 by the 42nd Amendment Act the Indian Constitution adopted secularism. The relevant portion of the amendment reads as follows: "2.? Amendment of the Preamble. In the Preamble to the Constitution,- (a) for the words "SOVEREIGN DEMOCRATIC REPUBLIC" the words "SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC" shall be substituted;"? When did the Indian Government lose its secular character? The ball started rolling fast immediately after that amendment!
What prompted the Government of Indira Gandhi to initiate the amendment was not a demand from the people of India. There was none. In the seventies religious extremists of India as a political force began to make headlines in some magazines of considerable influence (published outside India) and which for international strategic reasons did not want to see India flourish as a secular, democratic and powerful state. Indira Gandhi panicked and in a state of panic she failed to remain in her best form. Section 2 of the 42nd Amendment gave a long and strong handle to the religious extremists to exploit the masses.
BJP, Babri Mosque etc
In four years time the Bharatiya Janata Party (BJP) formally came into existence. The 42nd Amendment made it all the more easy to turn the Golden Temple into a Golden Fort, the demolition of the well-known Babri Mosque at Ayodhya and the burning to death of many Christians. Ultimately India saw a party like the BJP forming a Government and a man like L K Advani wielding power which Indira Gandhi had wished to prevent by the 42nd Amendment Act! Such is the blessing of secularism in this subcontinent!
The people of Bangladesh don't want to tear down any temple or mosque nor do they want to see the religious extremists form a Government or the counterparts of L K Advani wield power. We have enough trouble already. The people of this subcontinent of all religious backgrounds view the word 'secular' or 'secularism' with suspicion if not with abhorrence. What they want is peace and freedom of worship for all religions. Some speakers in roadside political meetings have confounded "secularism" with "religious freedom" but that should not mislead us. Let's not make the same mistake
Let us not make the same mistake as the Government of Indira Gandhi did and give a lever to the religious extremists to mislead the masses. Though apparently contradictory, wise men of yore were right when they said, "If you want peace, prepare for war." We might as well add, "If India wants to see secularism in practice as it did before 1976, it should strike out the word 'secular' from the constitution."
(The writer is a lawyer. He may be reached at email@example.com)