January 2, 2010
To Dance Upon The Air
By Iftekhar Sayeed
Since most of us today, whether by choice or otherwise, are Lockean constitutionalists, we would do well to start this analysis with an overview of the conditions under which that influential political philosopher justified the citizens' 'appeal to heaven', that is, to tyrannicide.
"The people shall be judge; for who shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him, when he fails in his trust? If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned, and also where the evil, if not prevented, is greater, and the redress very difficult, dear, and dangerous?"
The question arises: did such a situation obtain in Bangladesh prior to August 15, 1975 which, in retrospect, would justify the killing of Sheikh Mujibur Rahman on that day by a group of army officers (about the killing of his family, I shall postpone, but not evade, the discussion)? That a group may act on behalf of a people (for, as Locke might have said, history proves that an entire people never rise up against a tyrant) he makes abundantly clear.
"If a controversy arise betwixt a prince and some of the people, in a matter where the law is silent, or doubtful, and the thing be of great consequence, I should think the proper umpire, in such a case, should be the body of the people: for in cases where the prince hath a trust reposed in him, and is dispensed from the common ordinary rules of the law; there, if any men find themselves aggrieved, and think the prince acts contrary to, or beyond that trust, who so proper to judge as the body of the people, (who, at first, lodged that trust in him) how far they meant it should extend?"
Notice the uneasy shift from 'some of the people' and 'any men' to 'the body of the people': in his own day it was parliament that acted against James II, and not the entire people of England. The greatest popular participation in a revolution has been estimated to have taken place during the Iranian revolution (11%), followed by the Russian (9%) and the French (6%). Therefore, according to Locke, some people are justified in acting 'for the people' in a rebellion. And Sheikh Mujib's career follows the classic trajectory of the demagogue leading the people astray for his personal aggrandizement (see article): once unleashed, he had to be contained.
Now let us consider the events leading up to the slaughter in 1975, for which five of the killers will swing within the next few weeks.
I was a month shy of fifteen on that dawn when I was woken by the sound of booming guns. We lived on Road 27 in Dhanmandi, only a few blocks away from the house of Sheikh Mujib on Road 32. I remember that dawn as though it had been this morning.
When the news of the assassination spread, I remember the jubilation, the sense of a curse withdrawn from a people, the ecstasy of redemption that swept over the nation. I was innocent of all politics and political philosophy at that age: but I was sensitive to sentiment. And the sentiment was precisely this:
"Bliss was it in that dawn to be alive."
The reader must have gauged the enormity of the crimes of The Father of the Nation, Bangobandhu [Friend of the Bengalis] Sheikh Mujibur Rahman to elicit such a response from a people betrayed. But these are mere impressions, and those of a teenager at that: let us turn to an impartial source for the facts.
Lawrence Ziring has written a masterly account of the events leading up to the killing of Mujib in his 'Bangladesh: From Sheikh Mujib to Ershad: An Interpretive Study' (Dhaka, Bangladesh: University Press Limited, 1994).
"Mujib presided over a court corrupted by power. It acted as though it could shelter itself from the realities of Bangladesh. But the license that might have been ignored in some other societies, could not be ignored in a country overrun by self-styled enforcers, gouged by profiteers, and raped by government officials. With literally hundreds and thousands dying from hunger, with millions more threatened, high living in Bangladesh could only be equated with debauchery and hedonism, with irresponsibility and indifference. To anyone with a grudge or a sense of national purpose, the conclusion was the same. Deliberate efforts had to be made to reverse course, and the only option for such a reversal lay with a new team, and the only team capable of making the manoeuvre was the Bangladesh army (p 103)."
Mujib was in jail in what was then West Pakistan, but returned to a hero's welcome to become prime minister in January 1972 of his newly-created Bangladesh (formerly East Pakistan). His status was more that of a god than of a man: yet his intimates knew that he was even less than a man. "Mujib believed he was Bangladesh, more so that he was good for the country and that it could not manage without him. Those who reinforced Mujib's impression of himself and his role did so because it benefited them politically or materially, not because they truly believed in his leadership (p. 93)." Yet, in the election of 1973, he won a landslide victory: the disillusionment was still to come.
Mujib, distrustful of the army, formed his own personal army, the Jatiyo Rakhi Bahini, or National Security Force. "Opinion was strong that the paramilitary organization was no different from Hitler's Brown Shirts or the Gestapo (p98)." The Rakhi Bahini unleashed a wave of terror and murder, along with other anarchic groups. By 1974, several thousand politicians had paid for their lives for defying or supporting Mujib. Nor did the Rakhi Bahini spare the apolitical: they looted villagers and physically harmed those who resisted.
Then, in the summer of 1974, famine struck, and Mujib did not lift a finger to help his Bengali followers: he himself acknowledged the death by starvation of 30,000 people, but the true figure was 50,000. Mujib's passivity reaches diabolical proportions when we consider the fact that there was enough food in the land but that it was exported to his sponsoring country, India (see 'famine', Encyclopaedia Britannica, 15th edition.)
Viewing the decline of their creator's popularity, the Frankenstein of the Rakhi Bahini turned, not exactly on Mujib, but on his followers. By the end of 1974, four thousand Awami Leaguers were believed to have been murdered, including five ministers. Mujib then belatedly distanced himself from the Rakhi Bahini, and called in the regular army to restore a semblance of order. This exposed the army to the full extent of the national problem.
On 28th December, Mujib declared a state of emergency effectively martial law, minus the army. He thus put the constitution the covenant between the ruler and the ruled aside, abandoning the three-year old document as a legacy of colonial rule. The Awami League was swept away by its leader. It was a civilian coup.
In January 1975, Mujib had himself declared president. "Mujib, not the Bangladesh army, had removed the constraints on the arbitrary uses of power (p 102)."
What was to take the place of the Awami League? It was to be BAKSAL, Mujib's expression of the one-party state. "Thus in a more significant way, BAKSAL was meant to serve the purpose of the Bangabandhu's personal dictatorship, not the cause of national development and unity. BAKSAL was proof positive that Mujib intended to convert the country into a personal fiefdom for himself and his family members, and his many detractors did not need convincing that their once respected leader, not they, was the real threat to the nation's 'democratic' future (p 105)." The country was headed towards a de facto and despotic monarchy.
Thus was violence visited upon its author: on 15th August, 1975, a group of army officers stormed into Mujib's residence and killed him and his entire family, with the fateful exception of his daughters Sheikh Hasina and Sheikh Rehana, who were out of the country.
A grateful nation heaped every reward on the deliverers, from ambassadorships to political immunity (known as the Indemnity Ordnance, which was incorporated into the constitution as an amendment in the 1980s by the parliament of General Zia's party, the Bangladesh Nationalist Party (BNP)). There the matter would have ended, had not the cold war ended abruptly.
Western governments had no longer any need of military rulers, and General Ershad was noisily removed ostensibly by 'people power', much as the 'colour' revolutions would later be orchestrated by western democracies. In Africa, there were only three democracies in 1989; in 1991, there were thirty. I have remarked on this remarkable turn of events elsewhere, so I won't go into details here.
Suffice it to say, with General Ershad locked up illegally in prison, there were only two candidates for the post of prime minister, the country having switched to a parliamentary system in a rigged referendum in 1991: General Zia's widow, Khaleda Zia, and Sheikh Mujib's eldest daughter, Sheikh Hasina, now leader of the party her father had tried to strangle, the Awami League. In the first and only free election since 1990, it was fortunate for the 'instruments of heaven', as we must describe the assassins, that Khaleda Zia came to power, and stayed there until 1996. For as soon as her rival, Hasina, came to power in a doctored election (Buggins's turn, you see), she began to proceed to try the assassins.
Let us pause to reflect on the Indemnity Ordnance conferring immunity on the assassins. John Locke's doctrine of 'appeal to heaven' has not envisaged a situation where the emissaries of heaven might be tried for responding to such an appeal. The Indemnity Ordnance can be seen as a major constitutional innovation to safeguard those who would prevent descent into a state of war from civil society, which was clearly what Sheikh Mujib was attempting to do, and which he partly succeeded in doing. Locke says:
"" as if when men quitting the state of nature entered into society, they agreed that all of them but one, should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity. This is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by lions."
The devouring lion, and its brood, had to be done away with. And protection had to be conferred on the lion-hunters. Locke quotes Barclay with respect to the conditions under which a king can 'unking' himself. One of them occurs "if he have a purpose and design to ruin the kingdom and commonwealth", and then mentions the crimes of Nero and Caligula.
Which brings us to the question of Caligula's daughter. Was it necessary to put her to death as well? Unfortunately, in a dynastic age, it was. But, it will be argued, we have come a long way since then. Have we? A casual glance at South Asia shows how important is the dynasty in politics. Dynastic politics flouts the conventional wisdom that "politicians, like diapers, must be changed and for the same reason". The dynasties of Mujib and Zia have been around since the '80s, and their collective pong reaches up to high heaven. Still the people of Bangladesh hold their noses and vote for them. The assassins are going to hang, not for killing Mujib's family, but for failing to kill Mujib's family: the two daughters survived.
The pattern that emerges is this: the assassins of 1975 are hailed as heroes till 1996; the dynasty under Sheikh Hasina acquires state power in that year, loses it in the election of 2001, when proceedings against the assassins stop, and are resumed again after the daughter again returns to power in December, 2008. A dynastic vendetta? A lynching? Victor's justice? It has been all three.
Unfortunately for the heroes, the Indemnity Ordnance had not been passed with a full quorum of parliament: this was the question the clever lawyers of the Awami League put to the judiciary. Naturally, being a question of fact, the judiciary had to pronounce the ordnance invalid. The next stage was a kangaroo court's decision to have the assassins executed "by firing squad, and if the criminal code did not allow for that, to be hanged to death." The learned magistrate had apparently forgotten that Bangladesh does not shoot offenders; a lapse of memory to be attributed to sycophancy in serving the House of Mujib.
The higher judiciary was to be less pliable.
Seven High Court judges refused to hear the lower court's verdict: they declared themselves 'embarrassed' without explaining why. The names of these High Court judges should be engraved in gold not golden letters in the premises of the High Court. To any student of law, the reason for their refusal was transparently obvious they did not wish to embroil the judiciary in a moral issue that had no legal redress without, at the same time, politicizing the judiciary. The distinction between law and morality has been clearly drawn by Immanuel Kant. The best illustration of the discrepancy was provided by Chief Justice Taney. A devout Catholic, he had emancipated all his slaves; yet, when the Dred Scott case came up, he had to assert that 'a black man has no rights'. This decision undermined the prestige of the Supreme Court: yet Taney was merely stating the law, keeping his deeply held belief that slavery was an evil to himself. The seven judges of the Bangladesh Supreme Court similarly, no doubt, wished to draw a line between morality and the law: this, they felt, was a moral issue, not a legal one, certainly not an open and shut case of murder.
However, the dynasty finally had its way: since 1990, when the Chief Justice violated the constitution by assuming the presidency in lieu of the vice-president after President Ershad resigned, the judiciary has been tangled with politics. To make a long story short, the matter finally went to the High Court, where two judges gave conflicting opinions, which were reconciled by a third judge. "In 1998, 15 men were found guilty and sentenced to death. Three were acquitted by a higher court in 2001, five appealed to the Supreme Court, six are still in hiding, and one is believed to have died in Zimbabwe," according to Times Online.
"We are of the view that it [killing of Bangabandhu] is not a case of criminal conspiracy to commit mutiny, rather it is a criminal conspiracy to commit the murder of Bangabandhu Sheikh Mujibur Rahman and other members of his family," observed Justice Md Tafazzul Islam, the most senior member of the five-member bench, while reading out the order quashing the appeal of the death row inmates on 19th November, 2009, a day that will live as one of the bleakest for the cause of justice, government and humanity in Bangladesh.
And it will not surprise the leader one atom to learn that, when the current Chief Justice retires on December 22, he will be replaced by Justice Tafazzal, by order of the president, a ruling party adherent (under the parliamentary system, the president is a mere figurehead, who carries out the wishes of the prime minister). However, what will surprise the reader more than an atom is the fact that Justice Tafazzal has superseded the most senior judge of the Supreme Court, Justice Fazlul Karim. Furthermore, this is the third time that Justice Fazlul Karim has been superseded, having been twice passed over by previous governments. In addition, Chief Justice Tafazzal will perform his duties for a mere 47 days before he himself goes into retirement on February 7th!
The other day, I attended a dinner party where the host was in agreement with the Supreme Court affirmation of the earlier High Court ruling of guilty. However, what was truly interesting was his view of the judiciary: "This government would never have allowed the convicts to be acquitted". That is to say, the judiciary was simply carrying out the wishes of the executive. This view of the judiciary will be permanent: no one will ever again believe that the judiciary is independent.
The late Justice B.B.Roy Chowdhury once told me that General Ershad had never interfered with the judiciary: he was highly critical of the fact, indeed furious, that Chief Justice Shahabuddin had become president after Ershad resigned, thereby violating the constitution. Now, no judge can ever claim that the executive does not influence (to use a mild expression) the judiciary. Caesar's wife has lost her credibility. She will always be suspect.
As for the view that the killing of Mujib and his family was not a mutiny, the facts belie this contention. Again and again, the counsels for defence have pointed out that none of the chiefs of the armed forces lifted a finger to save Mujib. Then army chief Major General KM Shafiullah did not send his forces to Mujib's residence; indeed, my uncle, the recently deceased Major General M. Khalilur Rahman, who was Director-General of the Bangladesh Rifles, headquartered only a few kilometers away, appeared to have been deaf to the booming guns that woke me up. The entirety of the armed forces connived at or contrived the killing of the Lockean lion.
It would be curious to digress a little, and ask after, not the Lockean lion, but the Hobbesean Leviathan. What would Thomas Hobbes have made of all this? First, he would have found nothing repellent in the murder of a democratically elected leader, for an election constitutes a covenant, which can be revoked at the next election. In the paragraph entitled " Sovereign Power Cannot Be Forfeited" he maintains: ""the Right of bearing the Person of them all, is given to him they make Sovereign, by Covenant onely of one to another, and not of him to any of them; there can happen no breach of Covenant on the part of the Soveraigne; and consequently none of his Subjects, by any pretense of forfeiture, can be freed from his Subjection.
That he which is made Sovereign makes no Covenant with his Subjects beforehand, is manifest; because either he must make it with the whole multitude, as one party to the Covenant; or he must make a several Covenant with every man. With the whole, as one party, it is impossible; because as yet they are not one Person: and if he makes so many Covenants as there be men, those Covenants after he hath the Sovereignty are void, because what act soever can be pretended by any one of them for breach thereof, is the act both of himself, and of all the rest, because done in the Person, and by the Right of every one of them in particular."
Therefore, per Hobbes, one does enter into covenant with the sovereign, but only with one another: his theory of despotism is absolute and consistent. On the other hand, with military rulers like General Zia and General Ershad, who came to power by means of military coups, there has not and cannot be a covenant: therefore, these men, being successful, must be regarded sovereign.
This view is very close to that of al-Ghazali. To quote: "An evil-doing and barbarous sultan, so long as he is supported by military force (shawka), so that he can only with difficulty be deposed and that the attempt to depose him would create unendurable civil strife, must of necessity be left in possession and obedience must be rendered to him." Also "the wilaya (political function)"is a consequence solely of military power (shawka)" (quoted in Antony Black's The History of Muslim Political Thought: from the prophet to the present (New York: Routledge, 2001) p 104), italics not original). As Black points out, there was never any doubt in the Muslim world that anyone other than a monarch should rule (p 351).
Thus both Hobbes and al-Ghazali would have found Sheikh Mujib's election strange and exotic, but his murder beneficial and necessary. Therefore, the only philosophy that can make sense of the assassination appears, paradoxically, to be Lockean constitutionalism.
Even as I write, however, the Canadian government is under pressure to send back one of the heroes back to Bangladesh to stand trial and be hanged. "Nur Chowdhury, one of 12 alleged plotters found guilty in 1998 of killing then-Bangladeshi president Rahman, has been challenging the planned deportation because it conflicts with a 2001 Supreme Court of Canada ruling that directs the government in all but the most exceptional circumstances - not to surrender murder suspects to foreign countries where capital punishment is still legal" according to canada.com.
Meanwhile, in Bangladesh, the fanatical followers of the Sheikh dynasty are licking their lips at the prospect of men dangling from rope-ends. Even Mohammad Yunus, the Nobel Peace Prize winner, has voiced his approval (The Daily Star, November 27, page 1); and the Star Weekend Magazine, the soporiferous reading of the benighted middle class, covered its front page with an emotive picture of Mujib, his son and daughter, captioned: "After 34 long years of eluding justice and killers almost getting away with impunity, last week's Supreme Court verdict in the Bangabandhu murder trial comes as a giant step towards establishment of a society based on democracy and the rule of law. As the nation eagerly waits for the execution of the verdict, The Star looks back at the bloody night of August 15, 1975 and its impact on the nation's political life."
The nation eagerly waits for the execution? The nation has better things to do, like filling its chronically empty belly. Amnesty International requested the government not to hang the ex-soldiers: the government flatly declined. Only a fanatic circle of die-hard nationalists wait like vultures for the men to drop down dead. I would urge the Canadian government to grant asylum to Noor Chowdhury on the strength of these famous lines by Oscar Wilde.
It is sweet to dance to violins
When Love and Life are fair:
To dance to flutes, to dance to lutes
Is delicate and rare:
But it is not sweet with nimble feet
To dance upon the air!
Author's Website: http://iftekharsayeed.weebly.com
Author's Bio: Iftekhar Sayeed teaches English and economics. He was born and lives in Dhaka, Bangladesh. He has contributed to AXIS OF LOGIC, ENTER TEXT, POSTCOLONIAL TEXT, LEFT CURVE, MOBIUS, ERBACCE, THE JOURNAL, and other publications. He is also a freelance journalist. He and his wife love to tour Bangladesh.
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