Are the Fundamentals too Difficult to Comprehended?

George Bernard Shaw had asserted in the Preface to his play Arms and the Man that "I am no believer in the worth of any mere taste for art that can not produce what it professes to appreciate."

In the backdrop of continuous assertions that "terrorists have no party' or that 'everything is being done according to law' (in reference to certain murder trials); and so forth, it seems that our rulers are fond of taking stances contrary to what GB Shaw had posited. The rulers are clearly fond of constantly talking about something, i.e., the rule of law, which they can hardly understand, let alone produce. They do seem to have a taste for the rule of law but this taste is not sustained by worthwhile efforts for it's realisation. Hence, the taste is worthless. Or so it would seem to GB Shaw, were he familiar with such pretensions.

The primary onus for creating a society based on the rule of law is clearly with those in whom we have entrusted the executive powers of the state. Hence some reference to the highest executive authority is not uncalled for.

The Daily Star's huge front page picture of a few days ago showing the prime minister's motorcade going through the wrong side of the road has been widely noticed. The prime minister's office hasn't issued any clarification or explanation; for example, whether such a recourse to the wrong side of the road was justified under the Special Security Force Ordinance, 1986 or any other legal dispensation. Lets assume that driving on the wrong side of the road was legally justified (as the rulers may have written a lot of privileges for themselves of which we citizens are not always informed) - fine. If not, has the prime minister taken any action against those who were responsible for violations of laws by her motorcade?

Since there hasn't been any clarification or explanation, shall we assume that the PM's office hasn't found any justification or they have not simply bothered. In many a country such a violation would have, at least, diminished the moral authority of the chief executive to rule the country, since in those countries it is axiomatic that the chief executive governs according to the rule of law.

Another ready example of glossing over the core premises of the rule of law would be the prime minister's suggestion, not so long ago in the parliament, that terrorists be 'shot at sight'. That no such thing can ever be done is very clear as the Constitution provides in Article 33 (3) that "Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law." When you authorise police to shoot at sight, you turn the police into both the prosecutor and the judge. I wonder whether any one can think of an example as derogative of the rule of law as collapsing the prosecutor and the judge into one person.

Long long time ago, back in the zamindari days, a zamindar used to accuse, determine the guilt, prescribe and inflict the punishment, all by himself. In our present terminology, a zamindar was the prosecutor, the judge and the jailor - all in one. The rule of law, however, is premised upon a complete separation of these three functions as well as the mandatory provision for defence against any accusation (Art. 33 of the Constitution states - "..... nor shall he be denied the right to consult and be defended by a legal practitioner of his choice"). If you go back to the zamindari days of collapsing all into one, you inevitably end up with Rubel kind of situation where police both accused Rubel of committing crimes and also meted out the punishment (brutal killing). Are these premises so difficult to understand?

Then there was the widely reported recent statement implying that it may depend on the decision of the prime minister whether the leader of the Jatiya Party would again end up in jail or not. A large number of advocates have already protested that statement. The central premise of the rule of law that law takes it's own course, irrespective of the wishes of the executive, is probably beyond the realm of understanding of the chief executive. What is more disturbing is that all prosecutions against the leader of the Jatiya Party seem to be at a standstill. He is on bail, pending final determination of his appeals against the numerous convictions. The only explanation for this, one may hazard to venture, is that the office of the Attorney General may be under instruction from the government to 'go slow'. The prime minister's pronouncements can not but lead to such an assumption.

Just a few months ago a lot was made in a BTV programme about the pardoning of the convicted killer of AL leader of Savar, Mr Moizuddin, by the then CMLA General Ershad and the fact that the convicted killer joined General Ershad's bandwagon with a lot of fun fare not far from the killing ground. The saddest part of all these is that we the citizens will continue to suffer because the rulers will not, if it suits them, allow the law to take it's own course.

If one were to expand such examples, one must also include the prime minister's recent inauguration of one type of special courts in Dhaka. The rule of law also includes simple proposition that one organ of the state is separate from the other. How would the prime minister feel if the Chief Justice were to occasionally preside over the cabinet meetings or how about the Speaker sitting in as the Chief Justice of the Supreme Court? If these are not acceptable then why did she had to inaugurate a court which, constitutionally, is under the jurisdiction of the Chief Justice (will reading articles 114 to 116 of the Constitution - I have counted, four short sentences in all - be too much to ask for?).

The above, I must concede, are rather pedantic examples. Nevertheless, these have to be mentioned from the simple supposition that if one doesn't understand such simple fundamentals of the rule of law, it may not be wise, nay pointless, to write or elaborate on more serious aspects of the rule of law.

Will it be too much to ask of our leaders to read at least Article 7 of the Constitution and hope that they understand it? "All powers in the republic belong to the people...." Power does not belong to the executive. The executive only exercises those powers which the people have permitted them to exercise, within the limits laid down in the Constitution.

One more digression into Shaw. He was baptised in the faith of England (he was an Irish) and he grew up believing that "God was a Protestant and that Roman Catholics went to hell."

Will it be too wrong to suggest that the central premise of our politics is strongly influenced by such visions of right and wrong; hell and heaven. I and my party are Protestants and the rest will go to hell. Hartals are good examples of such stark black and white perceptions.

The Constitution states that all citizens have the right to freedom of movement (Art. 36), freedom of profession or occupation (Art. 40) and right to property (Art. 42). A citizen can not be deprived of these fundamental rights. There is, however, one exception - Proclamation of Emergency. During the time when the Proclamation of Emergency is in force, these above rights, along with some others, can be suspended.

Now we are threatened with a series of hartals in the coming weeks. Hartal virtually means suspenson of these rights. A citizen is denied his right to movement, can not exercise his profession or occupation and his right to property is at peril if he defies the orders issued by the hartal authorities. All these, therefore, virtually amount to a Proclamation of Emergency with the difference that the Proclamation is made not by the President but by the hartaling political parties.

Thus, the fundamentals of the rule of law that no one can exercise power beyond what is authorised by the constitution is cast aside. A virtual proclamation of emergency is made to, ostensibly, facilitate the rule of law (for proper election, voting or whatever) by totalling losing sight of the fundamentals of the rule of law. Again, I can not but infer that it is very difficult for such persons to comprehend the very fundamentals of the rule of law. The hartalwallas will graciously exempt, for example, ambulances, journalists, pharmacies, hospitals and some others from the ambit of hartals. In other words, freedoms of movement, profession or property of some selected persons or bodies are most kindly recognised.

Do they understand that it is not for them to determine which of my freedoms or rights I can exercise and which I can not. If they did, surely we would be living in a different country where 70% of the under-five children are not malnourished and, consequently, whose physical and mental growth are stunted for the rest of their lives (no amount of voting or political rights will ever enable these children to regain their lost health and intelligence and grow up to their full human potentials); where everyone at least the three square meals a day; and where the government makes at least half-decent efforts to provide education, health and employment for the citizens, irrespective of their political opinions.

In the meantime all we, the citizens of this country, can hope that some day they will grow up and begin to comprehend the fundamentals of the rule of law and then, may be, we shall have better days. And until then we don't have much of an option but to continue to listen to their sermons about law, order, morality, development, bridges and culverts, and what not.

The writer is an advocate and advisor to Bangladesh Legal Aid and Services Trust (BLAST)