BEYOND THE APPARENT
Constitutionalism is the cosmetic of authoritarianism
NM Harun
The fundamental political issue of the hour is the replacement of the so-called caretaker government, headed by Fakhruddin Ahmed, by an elected government. This calls for political action by political parties, i.e. the involvement of the people… The immediate upshot of the January 11, 2007 emergency was the temporary disuse of constitutionalism which has been continuing for 13 months. The ruling class is now in a political quandary in the face of a possible derailment of constitutionalism as a fallout of the messianic mission of cleansing politics and society.
The February 6 High Court judgement declaring the trial of an extortion case against Awami League president Sheikh Hasina under the Emergency Powers Rules as illegal and quashing the case itself gave a kiss of death to the emergency rulers’ pretension of uprightness. It is a flash of a rainbow in an otherwise dark emergency horizon. It is also one more patch of clouds in the gloomy world of the emergency overlords. But the fundamental political issue of the hour is the replacement of the so-called caretaker government, headed by Fakhruddin Ahmed, by an elected government. This calls for political action by political parties, i.e., the involvement of the people. The people have been showing a stoic forbearance in the face of the unbearable price spiral, shattered economy, misrule, rudderless governance and political as well as constitutional uncertainties. This is not really intriguing. The rigours of the emergency and the impotence of the political parties have combined to demobilise the people. Though the people are not yet in the scene, the ruling class is apparently nervous and restive with the prospect of a fresh scramble for power in view of the scheduled retirement of the army chief, General Moeen U Ahmed, in June next. Outliving the utility: The ‘caretaker’ government of Fakhruddin Ahmed has evidently outlived its utility both to the military founders of the January 11, 2007 emergency and its civilian clientele. What to replace the Fakhruddin government with, how, and how soon are the questions that are agitating the various sections of the ruling class, irrespective of their political affiliations, party identities or vocations. The present rulers have so long been using constitutionalism as the cosmetic of authoritarianism. The military leaders got the president to impose emergency under constitutional provisions [Articles 141A, 141B and Article 141C] and the emergency government got a constitutional coating by the spurious application of constitutional provisions regarding caretaker government [Article 58B, Article 58C, Article 58D, Article 58E]. The façade of constitutionalism could still be continued if the powers that be could devise a mechanism to organise generally acceptable elections to the ninth parliament. That would have required them to deal, politically, with Awami League president Sheikh Hasina and the Bangladesh Nationalist Party chairperson Khaleda Zia, who are the only leaders who matter in an electoral power contest at the moment. But the ruling coterie has still been persisting in their goal of politically liquidating them both. Early elections are thus out of the question. The chief election commissioner, ATM Shamsul Huda, has bluntly advised the people to ask him about a definite date for parliamentary elections only after September. From February to September is a long period. However, any parliamentary elections, immediately or whenever held in the future, will not be an ordinary constitutional function in pursuance of Article 123(3) which lays down: ‘A general election of members of Parliament shall be held within ninety days after Parliament is dissolved, whether by reason of the expiration of its term or otherwise than by reason of such expiration.’ The eighth parliament expired on October 27, 2006 and elections to the ninth parliament should have been held by January 2007. If the name of the game is election: A general election can now take place only under two conditions: a) the military thinks its mission of political engineering has been accomplished and it’s time to return to the barracks through the holding of elections under its terms and conditions, or b) political parties force the ruling coterie to come to terms with them to restore power to an elected government. The second condition does not exist at this time, all being apparently quiet in the political front. As for the avowed mission of the military to carry out an open-ended reforms programme, it has got stuck in the number one task in the agenda of its political engineering –– that is, the ‘minus-two’ formula. Hasina and Khaleda have so far defied and survived all the mechanisations of the powers that be and their past, present and prospective collaborators. Hasina and Khaleda –– despite their mutually inimical political and personal positions –– reinforce each other in the battle against the present ruling coterie and continue to remain relevant in power politics if the name of the game is election. A stalemate: A stalemate of a sort thus exists between the powers that be, on the one hand, and Hasina and Khaleda – individually and jointly – on the other hand. The Fakhruddin ‘caretaker’ government, the public face of the ruling coterie, is sandwiched between the contending forces. An irony is that Hasina and Khaleda or the political parties are apparently too weak to take on the Fakhruddin government but it may have to go because the powers that be are possibly finding it to be an inadequate governing arrangement to carry out their political engineering. In the meanwhile, the demand to relax or withdraw emergency has been increasing at home and abroad. Even the docile Election Commission is in favour of this demand. The death bell: As the emergency will be relaxed or rolled back, the death bell of the Fakhruddin ‘caretaker’ government will start ringing – for in the absence of a genuine constitutional foundation, the emergency is the basis of this government. That may not immediately serve the political cause of establishing an elected government but will definitely be a slap on the face of the promoters, defenders and apologists of extra-political power manoeuvring in the name of democracy, good governance, rule of law and constitutionalism. The haze in politics will be removed as authoritarianism will be exposed in its true colours. A dire predilection: Justice Habibur Rahman, a former chief justice and chief adviser of the first caretaker government, extended his gratuitous support to the emergency. In his acceptance speech of the Ekushey Padak on February 20, 2007, he said in reference to the emergency: a deep depression had formed; it is on its way of being cleared away. Subatas (a good wind or a wind of hope) has started blowing. Justice Habibur Rahman seems to have developed a certain cynicism about the subatas in the last one year of the rule of the emergency government. He wrote a 3940-word article titled Ekhano anek kichhu parishkar nay (Many things are not yet clear) in the Bangla daily, Shamokal, on February 8, 2008. He concluded the article with a dire predilection: Tattwabadhayak sarkerer bidhan shesh parjanta tikbe kina, ta ebang desh ki ki sangbidhanik paribartaner sammukhin habe, ta ekhano parishkar nay (It is not yet clear whether the system of the caretaker government will survive or what constitutional changes the country will face). News and rumours: The immediate past American ambassador to Bangladesh, Patricia A Butenis, acted like an event manager of the bizarre political soap opera that produced the emergency of January 11, 2007. On the eve of her departure from Dhaka, she gave an interview to the Voice of America and the United News of Bangladesh on June 18, 2007. VOA correspondent Amir Khasru quoted her as saying that Bangladesh is a land of rumour and it is unique in the sense that one is able get the news by sifting through the rumours, whereas there are many countries in which it is really difficult to get the news. Butenis said there was a rumour that elections would not be held and that she wished that the rumour remained a mere rumour and did not become true. One year on since the proclamation of emergency, a new rumour is spreading its wings –– that a ‘national government’ is on the anvil. Law adviser, AF Hassan Ariff, responded to the latest rumour by stating that there was no scope in the constitution for a ‘national government.’ When the rulers speak in the language of text books, it is usually an ominous sign. On the same rumour, the acting president of the Awami League, Zillur Rahman, said that the concept of a national government ‘cannot be a principle’, but the issue might be raised after elections. And it is an open secret that many heavyweights in various political parties, including the Awami League, are in the monkey business of forming a so-called national government. The immediate upshot of the January 11, 2007 emergency was the temporary disuse of constitutionalism which has been continuing for 13 months. The ruling class is now in a political quandary in the face of a possible derailment of constitutionalism as a fallout of the messianic mission of cleansing politics and society. NM Harun is contributing editor of New Age. He can be reached at: badrun123@dhaka.net
Shariah is neither Islamic nor British
Both the adherents and opponents of Shariah believe that the code was derived from the Quran and is as old as Islam itself. Ordinary Muslims also consider it as divine law. Contrary to these assumptions, Shariah is hardly Quranic in origin as the Quran contains 80-odd verses, which are prescriptive or regulative, writes Taj Hashmi
It is indeed lamentable that some people in Britain are considering the introduction of the regressive and misogynous Shariah law. What on the surface appears to be non-discriminatory and ‘pro-Muslim’, for the promotion of multiculturalism, is actually a big step in the opposite direction. Shockingly enough, while advocating the introduction of the Shariah for British Muslims on February 7, 2008, the Archbishop of Canterbury Dr Rowan Williams said: ‘It seems unavoidable and, as a matter of fact, certain conditions of Sharia are already recognised in our society and under our law, so it is not as if we are bringing in an alien and rival system’. Dr Williams believes the introduction of Shariah law to Britain will help maintain ‘cohesion because some Muslims do not relate to the British legal system’; and that ‘its introduction would mean Muslims would no longer have to choose between the stark alternatives of cultural loyalty or state loyalty’. He further stipulated that his proposal would only work if Shariah law was ‘properly understood, rather than seen through the eyes of biased media reports’. What is even more distressing is the ambivalence in the Prime Minister’s official stand on the issue. Gordon Brown’s spokesman insisted that while British law would remain pre-eminent, concessions to Shariah could be made on a ‘case-by-case basis’. One wonders if Shariah and British Common Law are compatible, especially with regard to marriage, divorce and inheritance rights for women. We do not find the Archbishop’s following assertion comforting either: ‘It would be quite wrong to say that we could ever license a system of law for some community which gave people no right of appeal, no way of exercising the rights that are guaranteed to them as citizens in general. But there are ways of looking at marital disputes, for example, which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate’. One is not sure if once accepted on par with British law, it would be ever possible to modify the Shariah to make it look more civil, modern and humane. There is more social evil in the Shariah code than, to paraphrase the Archbishop, ‘seen through the eyes of biased media reports’. While liberal Muslims (including this writer) have been striving hard for quite some time to modify the Shariah, by scrapping many draconian codes sold as divine commandments, this silly concession to the obscurantist mullahs (and their non-mullah adherents in Britain) is going to be more divisive, counter-productive and most importantly, discriminatory against Muslim women. This ‘concession’ would eventually embolden the proponents of Shariah in Muslim majority countries and in countries with substantial Muslim populations, such as France, Germany and Spain, Canada and the US to demand this draconian code to regulate Muslim personal law in the name of Islam. On the one hand, it would further segregate and marginalise Muslims and on the other, by sharply polarising the adherents and opponents of Shariah it would incite intra- and inter-racial conflicts and terrorism within and outside Britain. In sum, Britain’s adopting the Shariah may legitimise the excesses of the code committed elsewhere in the Muslim World. Problematically, both the adherents and opponents of Shariah believe that the code was derived from the Quran and is as old as Islam itself. Ordinary Muslims also consider it as divine law. Contrary to these assumptions, Shariah is hardly Quranic in origin as the Quran contains 80-odd verses, which are prescriptive or regulative. The main sources of Shariah are thousands of spurious Hadith or ‘sayings’ of the Prophet Muhammad, collected haphazardly more than 200 years after his death. Muslim jurists’ legal opinions collected during the 8th and 12th centuries based on their understanding of the Quran, traditions of the Prophet, local customs and above all, common sense, are collectively known as the Shariah. Once we consider the following facts, we come closer to resolving the Shariah debate: 1. Shariah is authoritative, not infallible; 2. The Sunni Shariah code went through major transformation and changes, but only up to the 16th century; 3. Shiite Shariah is still subject to changes and modifications; and 4. The moral principles of the Quran outweigh its legal principles (for example, while slavery, concubinage and polygamy are tolerated in Islam for a specific historical era, the Quran does not promote or encourage these practices). It is quite puzzling that secular Britain should toy with the idea of incorporating Shariah into its legal system while several Muslim countries are gradually replacing it with secular codes and some have already done away with it. Britain should be even more cautious about implementing Shariah, as there are very few Islamic scholars in the country, qualified enough to interpret the Quran and the teachings of Islam. And again, whose Shariah are we talking about? There are at least four Sunni and scores of Shiite sects, each with its own Shariah. While the Wahhabi and other Muslim sects sanction female genital mutilation in the name of Islam and Shariah, the official Iranian Shiaism endorses temporary marriage (mutah or segha) between a man and a woman for a day, week, month or year. Some Muslims, on the basis of wrong interpretations of the Quran, justify polygamy and even consider wife beating permissible in Islam. Are the British willing to allow the implementation of these varying versions of Shariah in their country? Once they allow it to meddle with the conjugal problems of Muslim couples, the government would simply fail to protect half-educated, uninformed and dependent Muslim women from being abused in the name of Islam. All concerned should learn that what the Quran has given to women, Shariah has taken away from them. Examples abound. While men and women are equally held responsible for adultery in the Quran, which prescribes 100 lashes for the offenders each, the Shariah is particularly harsh on the sinners, prescribing the death penalty for both the offenders. Again, as it appears in the Quran (Chapter 4), only immediate family members of Muslim couples may arbitrate in matters relating to divorce and custody, there is no room for outsiders to arbitrate. Since Shariah is not infallible and is subject to change and modifications, there is no need to rush for its implementation anywhere, let alone Britain, until the emergence of a Muslim Martin Luther. Unless Islam goes through its Reformation and the Muslim World undergoes a total transformation to adapt to modern, liberal democratic, secular and urban cultures of enlightenment and tolerance, no one should advocate the cause of Shariah anywhere in the world. However, the government alone cannot stop the introduction of Shariah in Britain; civil society in general and liberal Muslims in particular should come forward to stop this vice, which is neither Islamic nor British in character and spirit. taj_hashmi@hotmail.com
The rotten state of British politics
Big money trumps everything in politics, even the most dearly-held beliefs. This is the story of our political system, of most of the world’s political systems. You enter politics with the highest ideals and end up grovelling to multi-millionaires, writes George Monbiot
It is not difficult for Britain’s major political parties to move on from their funding scandals: there’s a new one every week. Every revelation blots out the memory of its predecessors. Peter Hain’s misdemeanours dropped out of the news before we had heard the half of it. I want to drag you back there for a moment, because there’s an aspect to this story which was either missed altogether or mentioned only briefly in most reports. It says far more about the rotten state of British politics than Hain’s failure to declare his donations. The new scandal concerns the identity of one of his donors. There is no suggestion of illegality here: it is a moral issue. But it illustrates, perhaps more clearly than ever before, the abandonment of everything the Labour party once claimed to stand for. It shows us that in any contest between money and principle, the money wins. Hain was not the first beneficiary of Isaac Kaye’s munificence. Kaye, who has made many tens of millions of pounds from his drugs companies, gave the Labour party a few thousand in both 1997 and 1998, and £100,000 in 1999. But Hain had two powerful reasons not to put his hand in this man’s pocket. The first is that the company Kaye used to run, Norton Healthcare, is now subject to the biggest prosecution for alleged fraud ever launched in the United Kingdom. Norton is one of five firms accused of dishonestly fixing the price of drugs sold to the National Health Service. The charges relate to the period 1996-2001, when Kaye was chairman of the company. In 2006, Norton paid the Department of Health £13.5m to settle a civil case concerning the same allegations. Norton Healthcare has been involved in other controversies. In 1998 the Department of Health named it as one of the companies offering ‘inducements’ to doctors and chemists: Norton gave them mountain bikes and Marks and Spencer vouchers if they stocked its products. Labour’s health minister complained that ‘it is completely unacceptable for pharmaceutical companies to encourage health professionals to use their products through free gifts and other sweeteners.’ In the same year, the government announced that it was giving a Norton plant in London’s Docklands £990,000 in the form of ‘regional selective assistance’, whose purpose is to boost employment. This grant, the government claimed, would promote ‘inward investment in the manufacturing sector’. As Private Eye points out, the fund –– as its name suggests –– is normally used to bring jobs to the regions (which means places other than London). But there was something even odder: the week before the government announced this funding, Norton’s parent company revealed that it would stop manufacturing in the UK, and would shift the jobs in that sector to Ireland. But the particular discomfort for Hain concerns Kaye’s activities in his previous place of residence. Until 1985 he lived in South Africa, where he was involved in another ‘gifts for influence’ scandal. His drugs company, Alumina, gave cars, televisions, chandeliers, swimming pool equipment, tennis courts, shares and trips abroad to people working in the health sector, including academics who sat on the government’s advisory panels, the head of the Medical Research Council and the minister of health. When these gifts were exposed, Kaye explained that they were ‘not an inducement, but in appreciation of their having prescribed drugs marketed by the Alumina group.’ The official inquiry into the scandal found that he had ‘no scruples about applying dishonest or unethical methods.’ More importantly as far as Hain is concerned, Isaac Kaye has been accused of providing campaign finance for National Party candidates during the apartheid years. Kaye admits to funding the National MP John Erasmus. An article in the Daily Express, drawing on an award-winning investigation by the South African journalist Martin Welz, alleges that Kaye seconded one of his company’s executives to campaign for another candidate, Gerrit Bornman. It also claims he provided cars to help Lapa Munnik, the minister of health and a fierce defender of apartheid, win a by-election. Gerrit Bornman told the Express that Kaye had been a ‘substantial’ backer of the National Party. I tried to contact Mr Kaye, but I was told he was unavailable. In the past he has denied funding the National Party and has maintained that his company’s gifts were not intended to win favours. Taking money from Isaac Kaye defaces Peter Hain’s only remaining conviction. When Hain became a Labour cabinet member and was obliged to ditch everything he once believed, he was allowed to keep just one political memento: his admirable record of opposition to the apartheid government. When he moved from South Africa to Britain he became this country’s leading opponent of apartheid. The regime first tried to kill him then tried to fit him up for a bank robbery. He was a brave and remarkable campaigner. But in 2007 he trampled his medals into the mud to get the money he needed. This is the story of our political system, of most of the world’s political systems. You enter politics with the highest ideals and end up grovelling to multi-millionaires. Campaign finance is not the only reason for the corruption of leftwing political parties. But any system without a cap on individual donations encourages the mass abandonment of political programmes. You need to spend much less time and effort and money to secure thousands of pounds from a rich man than to shake it out of the piggybanks of hundreds of new members. Who can blame you if you adjust your programme to please the millionaires? The newspapers say that our system is one of the least corrupt in the world. It’s probably true –– but so much the worse for the world. The British Labour Party knows that no enormity would persuade the trade unions to disaffiliate. So it can ignore their demands and concentrate on the needs of the multi-millionaires. In 2006 and 2007, 27% of its money came from individual donations of more than £100,000. Aside from the largesse of Lord Sainsbury and Lakshmi Mittal, almost all of this is City money, much of it from men who run private equity companies. To what extent this influences Labour’s failure to tax the super-rich, we will never know –– which is, of course, the problem. Because the Labour Party (thanks to the endless funding scandals) is always on the brink of bankruptcy, Gordon Brown has promised to do something. But, in line with the recommendations by the Phillips Review of party funding, he proposes to cap donations at £50,000. Witness the democratisation of British politics: even the ordinary millionaire can now participate. Why should one person be allowed to give the equivalent of 1388 Labour Party membership fees? Brown’s formula would preserve Labour’s funding link with the trades unions - and the super-rich. I don’t mind how it is done; whether, as both the Phillips review and the Power Inquiry recommend, the state gives more, or whether the cap is set at £100 and parties must rely on a host of tiny individual gifts. (Who cares if they have less cash with which to bamboozle us?) Just get the big money out of politics. The article was first published in the Guardian/UK on February 5, 2008 under the heading, ‘The Death of the Noble Idea’. George Monbiot can be reached at: www.monbiot.com
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