Ekushey - towards secular democracy

Masihur Rahman

In 21st February commenced our struggle for independence. The language movement created the historical consciousness which unfolded itself to secular democratic Bangladesh. The following is an attempt to state the historical consciousness which is personal but not idiosyncratic.

First, it was a demand for equal citizenship. In the particular historical context, equal citizenship meant equality with the people in West Pakistan. Equality of all citizens is the basis of democracy. If inequality among citizens is accepted as normal, inequality can be justified on any ground race, religion, sex or region.

Second, it recognized secularism as the basis of the state. Language is non-communal in that it is used for communication by everyone in the cultural group irrespective of their religious belief. Bangla literature and culture were pursued with a strong commitment despite official obstruction.

Third, there was a shift in the composition of the political strata: the educated Muslim middle class, who came from small town and rural background, assumed leadership and replaced the so-called nobility based on land revenue farming who had dominated the Muslim League.

Sher-e-Bangla and Maulana Bhashani represented the emergent middle class. Suhrawardy brought tremendous power of organizations and articulation to the emergent middle class politics. When they abandoned Muslim League, it lost ground in East Pakistan.

There was confusion between about political roles and social background during the transition and some middle class politicians stayed away from the emerging middle class politics. The confusion can and does continue which explains why some people do not reconcile to independent and democratic Bangladesh.

Meaning of citizenship
Conventionally, the state is viewed as a territory where some people live in obedience to the law promulgated and enforced by the government which is the collectivity of the agents and institutions of the state. It is a bit trite and shallow. Alternatively, the state is viewed as an enterprise by a group of people to set up institutions and agents to protect their rights within a given territory. The elements are the same in both conceptions; in the alternative conception, citizens occupy the centre stage of the state. We will use the conception also to identify the failed state later.

Citizenship, according to Derek Heater, is 'enshrined in rights conveyed by the state and the duties performed by the individual citizens, who are all autonomous persons, equal in status, have a sense of responsibility in discharging their duties, and need the skills appropriate for civic participation.' Heater describes citizenship also as a socio-political identity. [A Brief History of Citizenship, Edinburgh University Press, 2004, p. 2]

There are other forms of socio-political identity also such as feudalism, monarchy, tyranny, and nation-state. The common feature in all these systems is the absence of the rights and autonomy of the individuals who live in the given territory: they are subordinate and loyalty to the feudal lord or the ruler. A sense of glory in a common heritage characterizes the nation-state but does not confer on the people rights and autonomy and set them above the ruler, which constitute democratic citizenship. In democracy, the rights of the citizens are constitutionally specified and the powers of the government the organs of the state are constitutionally constrained. [Heater, pp. 1-2]

T. H. Marshall initiated the formal study of citizenship with Alfred Marshall commemorative lecture delivered at Cambridge University in 1949. He conceived 'citizenship as full membership of a community and claim, on the basis of equality with everyone else, to its heritage of civilization. The basic human equality, the formidable array of rights along with a marked shift of emphasis from duties to rights, and the drive towards social equality represent the latest notion of citizenship.' [Marshall, Citizenship and Social Class, Part I, Pluto Press, 1992, pp. 6-8, 18. Tom Bottomore wrote Part II which is an update and critique of Marshall's seminal work of 1949)

In Marshall's conception, there are three parts or elements which constitute citizenship namely civil, political and social. The civil element comprises the rights necessary for individual freedom protection of life and liberty of the person; freedom of speech, thought and faith; ownership of property; right to justice. The right to justice is the socially created capability to have and defend the other rights. [Marshall, p. 8]

The political element is the right to participate in the exercise of the political power of the political authority or as an elector of the members of such a body. [Marshall, p. 8]

The social element includes the right to a modicum of economic welfare and security, full share of the social heritage, and the ability to live a civilized life according to the prevailing social standards. “Social services are a means for a general enrichment of the concrete substance of the civilized life, a general reduction of risk and insecurity, equalization between the more and the less fortunate.” [Marshall, pp. 9, 33]

Marshall uses civilization and culture interchangeably, meaning thereby capacities to work efficiently and the intellectual attainments. The normal method of establishing social right is through exercise of political power; social right implies an absolute right to a certain standard of civilization [Marshall, pp. 16, 26]

The social services provided in a welfare state are the compendium of social rights and the staple of welfare economics and of public policy. There are disagreements, nevertheless, whether welfare services can be treated as rights in the same way as civil and political rights. In the mature industrialized democracies, certain social services have become irreversible entitlements created by law. Even then, the eligibility criteria and the magnitude remain vulnerable to structural budgetary threats induced by domestic as well as international economic conditions. [J. M. Barbalet, Citizenship, Delhi: World View, 1997, pp. 20, 70, 72 / Buckingham: Open University 1988)]

Citizenship in Bangladesh
Citizenship in Bangladesh conforms to the conceptual structure with respect to the civil and political rights, but not the social rights. The civil rights include right to life and personal liberty including restraints on government as to arrest and detention; rule of law including equality before law and protection against trial and punishment by retroactive law; freedom of thought, conscience, religion and speech; freedom of movement, assembly and association; rights to property, freedom of profession and occupation including prohibition of forced labour; non-discrimination on grounds of religion, sex, ethnicity as well as equal opportunity in public employment. [Art. 26-43]

The political rights are secured through institutional arrangements and do not appear amenable to discrete specification in the manner of civil rights. Sovereignty vests in the people by virtue of which they have all the powers of the Republic, choose the representatives for governance, and sanction the constitution. [Constitution of Bangladesh, Art. 7]

Bangladesh follows the universal suffrage: citizens at least eighteen years old can vote in parliamentary and local self-government council elections [barring unsound mind or conviction for moral turpitude by court]. Parliament is the key institution as the cabinet and the Prime Minister are chosen from the members; has the monopoly of the powers for legislation, taxation and budget; and exercises accountability over the executive. [Art. 66, 55(3), 56(2), 57, 82-3, 89-92(1 & 2)]

The Westminster model of the Constitution breaks down if the majority party in the House abuses its power and there are obstructions to the effectiveness of the Opposition Party. That is the pathology we confront now. The cure is the strong public pressure for change in the ways the parties existing and new conduct themselves. Surgical operations on anesthetized parties will bring in worse trends as experiences in the subcontinent show.

What Marshall calls social rights are included in the Fundamental Principles of State Policy [Part II of Constitution]. These include emancipation of peasants and workers, provision of basic necessities, free and compulsory mass-oriented education for the economy and civic awareness, development of national culture, rural development and agricultural revolution. Mass education and national culture aim at homogenization which has a key role in nation-building and integration. [Art.14-17, 23].

The Fundamental Principles and the Fundamental Rights are connected in many respects. The principles of democracy and human rights and dignity are linked with the rights to life and personal liberty; the forms of ownership state, cooperative and private with right to ownership; work as a right and duty with the freedom of profession and prohibition of forced labour; and emancipation of workers and peasants and provision of basic necessities with dignity of human life in a substantive sense. [Art. 11, 13, 18, 20].

The modes of enforceability of the three categories of the rights differ radically. The Constitution states clearly that the fundamental rights can be enforced by the High Court; equally clearly, it declares that the fundamental principles of state policy 'shall not be judicially enforceable'. [Art.44, 8(2)]

The Supreme Court followed this principle, citing that policy requires resource, technical know-how, conducive social conditions, etc. However, separation of the judiciary from the executive organs is stated as a principle but has been enforced by the Supreme Court [Art. 22, 8(2); Mahmudul Islam, Constitutional Law of Bangladesh, Mullick Brothers, 2003, pp. 53-4]

The Directive Principles of State Policy in the Constitution of India are similar to the Fundamental Principles in our Constitution. The directive principles are not justiceable but are instructions to the legislature and the government as to the kind of law and policies to be adopted. The fundamental rights and the directive principles are the twin bedrock of the constitution and the principles impose a positive responsibility on the government. On this basis, the government cannot ignore the principles in making law and public policy. [M. P. Jain, Indian Constitutional Law, 2005, pp. 1363-4, 1366-7]

Restoration of citizenship
It has been stated before that citizenship, with rights as its contents, is at the centre of constitutional democracy. It follows therefore that violation of the rights amounts to violence to citizenship and the state. It is the obligation of the government and the state institutions to expand, entrench and protect citizenship rights from internal subversion and external aggression.

It is unrealistic to expect that the government can unfailingly discharge its obligations. It may fail sporadically because of exogenous events. Repetitive failures are arguably indications of the failed state, but not conclusive evidence. When the failure is endemic and caused by factors internal to the government, it signifies state failure.

Towards the end of the last government, the debate got currency as to whether we were living in a failed state. There were indications of a failed state, but most opinion felt that the evidence was not conclusive: we were at the precipice. The interim government which replaced the constitutional caretaker government evidences the push over the precipice.

The installation of the interim government is the result of the long process of debilitation of the administrative and state institutions for partisan or private gains, which continued through the caretaker government of President-Chief Adviser. To hold the stalemate till 11th January alone or mainly responsible is a rather shallow and short-sighted view.

It seems that there is no law or it is ineffective to punish acts which are destructive of the political rights of the people. This is violence against the sovereignty of the people and therefore against the state. The public officials who commit acts of denial or destruction of the political rights are liable to punishment for subversion of the constitution and the state, those who hold constitutionally instituted office not excepted.

There is another reason for which political power is important. 'The principles of state policy form the basis of the work of State and its citizens.' The people adapt their conduct to the principles and exercise their political power to oblige the government to adopt policies in conformity with the Constitution. The civil liberties and freedoms are essential to the use of the political powers. [Art. 8(2)]

The current government is pledge-bound to reinstate the Constitution and democracy through a proper election, which generates great optimism for the future of our constitutional democracy. It is the justification for the interim government and its redemption.

Dr. Masihur Rahman is a policy analyst and free-lance columnist.