“Do I contradict myself?
Very Well then,
I contradict myself”
“I am large, I contain multitudes” (replies the constitution).
[Walt Whitman, “Song of Myself” Leaves of Grass (1891-92)].
Constitution matters. Why? Is it because it protects our fundamental rights? Maybe, at least this is the obvious answer that we get from the majority people. But I will provide a different answer to the question by using the words of American constitutional scholar, Mark Tushnet. Tushnet tells us that constitution matters because “it provides a structure of our politics.” Though meant for the USA, Tushnet’s phrase holds equal substance for the Bangladesh scenario. For it is politics, not the “constitution,” that is the ultimate and sometimes proximate source of whatever protection we have for our fundamental rights. The judicial contest of “uncontested” seats in the 10th parliamentary election is the recent reminder of this understanding.
The High Court Division (HCD) confirms the legality of the 154 “uncontested” elected seats in the 10th parliamentary election. The finding is no surprise, to say the least. From an open perspective, it seems that the court avoided the creation of a fresh constitutional chaos taking a stand in favour of legalism. The impugned Representation of People Order (RPO) provision is declared not to be violative of the constitution. The provision confers power on the election commission to declare a candidate elected, should be no rival candidates. This appears to be a literal approach of the court which may contribute to hold a temporary political stability in the country. However, the finding fuels some important questions having far-reaching implications on our democratic practice.
The first question that confronts us is what constitutes the constitution? If constitution is the “solemn expression of the will of the people” (Article 7 of the Bangladesh Constitution), how may that “will” be convincingly distinguished from a clear exercise of voting rights? It is absurd to think that in a constitutional democracy the constitution contemplates for an untrusted system of political representation. Therefore, it would be a paradox to the nomenclature of the law itself (RPO), if the word “representation” is taken in a sweeping meaning to include otherwise untrusted persons. It will be interesting to see in detail how the judiciary addresses the issue.
We may recall the previous judicial stand on the question of “representation” in the parliament. The Appellate Division (AD) in 1995, in an advisory opinion, held the en masse resignation of the 147 MPs constitutional. One of the issues then was whether the constitution at all contemplated such en masse resignation from the parliament in disregard of duties entrusted on the MPs by the people. The other one was whether the word “absent” engulfed the meaning of intentional “boycott” from the parliament. The AD did not find any difference between “absent” and “boycott.” This judicial apathy to draw a line between a normal “absent” and intentional “boycott” has its legacy in our parliamentary practice.
The political parties often threaten to use this sword to make the parliament dysfunctional. I am afraid the “uncontested” verdict, in its present intonation is going to claim its similar tolls on our democratic voyage. The recent untrusted move for amending the constitution on the question of judges’ impeachment is nothing but an upshot of our failure to make an accountable parliament in the true sense of the term.
Constitution, as it is frequently uttered, is the supreme law of the land. What makes the constitution supreme? Say, for example, some law professors being dissatisfied with our current constitution draft a new one having the same supremacy provision. How does this newer provision differ from the old original one? The original one holds weight because it has a history of oneness of a nation, because it has a time-tested public feeling that “sovereignty belongs to the people.” Is the “uncontested” opinion going to consolidate this feeling? I doubt very much.
Many other countries of the world have the provision for “uncontested” election. Therefore, it has been argued, it is no offence that Bangladesh should have the same. Again, we should make a cautious distinction of constitutionalism from the mathematics. Is it not our constitution that we need to expound? The point also ignites an intricate debate: to what extent is the migration of constitutional ideas acceptable where every constitution has its own framing history? It would be disastrous if we fail to sense the blood, sweat and tears of the common people that run along the text of our constitution.
Therefore, there must be ways that show how not to read the constitution. The constitution is an image. This image should not be the sole privilege of lawyerly wisdom. Even the masses draw a picture of what a constitution should look like. The lawyerly canvas may upset the people’s imagery of the constitution, but in no way does it reduce the “level” and “tone” of their expectation and criticism about how fairly they should be represented in the parliament.
Constitutional jurist Mahmudul Islam submits that the provision for uncontested election is an obvious choice. He suggests that if the political parties continue to refuse participating in the election there would be a vacuum. In order to avoid this void, claims Islam, uncontested provision seems inevitable. However, is it not also true that this legal sanction would pave the way to conduct elections disregarding the wish of the substantive political opinion?
The discussion tempts us to term the constitution a “mystery.” It is a “mystery” because the lines of the constitution sometimes do not complement each other. It is a mystery because different people see the constitution differently. This is because there is a pre-text for every text. The pre-text is a question of value external to the text. So, in order to unlock the constitutional puzzle, we need to cherish a democratic value. This value demands an oxymoron of the people’s rights and liberties with political invasions and evasions. The value-laden democracy helps us sketch the true image of a constitution.