Untold Facts

Tainted awkwardly and dishonored by itself

1. The verdict of the 19th November by the special bench of the Supreme Court in Bangladesh appeal hearing in the 15th August 1975 Dhaka mutiny case has left little doubt in all sensible minds about the interference of the executive with full political and personal motive of vengeance, and made the independence of judiciary a mockery in the judgment.
2. Poor judges here are not like ones of the democratic and economically advanced countries of the West but of one of the poorest countries of the world as Bangladesh stands in position, and so were fully vulnerable to executive master’s for subsistence, perks, promotions, safety and security, and also delivery of justice under ‘fear and intimidation’ by being under the condition of siege by the state law enforcing machinery and the rowdy government party followers.
3. The differences were seen clearly in the five stages of the due process of law- three during 1996-2001, one in August 2007 and the fifth one on the 19th November 2009.
4. The first set of three verdicts toed clearly the line of the top executive of the particular political party in government, the 2007 one looks neutral as the government was not of any political party label and the 2009 one of the same political party label as of the 1996-2001.
5. The honorable judges on the 19th November rejected the appeal granted on five valid legal points made by a three member bench in August 2007 during the non-political party caretaker government that amazingly, not even any single point, or any part of any single issue as many were there legally in favor of the accused as, for example, the BENEFIT OF DOUBT not taken into any consideration whatsoever
6. In fact, the whole matter had interference of the executive may well be seen in:
(i) The incident of President Sheikh Mujib’s toppling off was clearly done in the successful mutiny of the Bangladesh Army; unfortunately, he was killed in the encounter between two sides, army men on one side and his residence guards that opposed the army in combat not for very long but in minutes, at his own Dhanmondi residence, Dhaka.
(ii) The mutiny followed immediately after formation of the successive government led by as President Khondoker Moustaque Ahmad, another leader of the same party, Awami League but committed to multi-party democracy and Islamic values that the 85% people professed as their dear faiths and day to day practices, with full allegiance of the organs of the government including the three wings of the Defense forces
(iii) The common people tired of the Sheikh’s rule of oppression of untold kinds spontaneously supported not only the mutineers but also the government of Moustaque that enjoyed not only allegiance and support by all government organs to the new government but also followed by international recognitions by the Peoples’ China, Saudi Arabia etc .for the first time in three and half years since independence and also Britain, USA etc. that provided all legitimization of the change and the coup d ‘etat of the 15th August 1975. Had there been no toppling of the malevolent dictator Mujib on the day, Bangladesh would have to continue very painfully with unenlightened dynastic rule, and would certainly have no multi-party democracy until possibly still more violent fall or natural exit- when only God knows.
(iv) As successful coup d ‘etat is by itself not only enjoys indemnity for any bloodletting but also becomes source of subsequent laws until other constitutional provisions made, the mutineers had that indemnity, even so, somewhat additionally, an Indemnity Act was enacted by the post coup government on the 26th September 1975 that afterwards was covered in the 5th Amendment of the Constitution of 1979 that is still in force in 2009.
(v) It was as such obvious that the coup makers enjoyed full citizenship freedom, some took up professions as they wished and some like Col Farook took on to politics so much so that he in the banner of his Freedom Party contested the Presidential election in 1987 that placed him in the third position, Ershad the seating President won and the Octogenarian Hafez zi Huzoor second in vote polled. Then on in the parliamentary elections his party stayed in contest and had elected member in the Parliament, like Bazlul Huda, another hero of the 15th August 1975 but unfortunately, now convict in the case of vengeance.
(vi) In the 1996 June parliament election, Sheikh’s daughter Hasina by then rehabilitated in the politics by way of abolition of the lone party of her father BAKSAL and revival of the Awami League in multi-party system, won the poll in as the single majority, then made unholy alliance with other smaller parties and thus secured majority in forming the government, herself became the Prime Minister of the Awami League Government in late June 1996.
(vii) Immediately after she swooped on the 1975 August mutineers who stayed in the country, arrested them put to remand and inhuman torture labeling them as ordinary killer in criminal murder of her father. For doing this she took to many illegal and immoral means. One, she appointed General Mustafizur Rahman, her uncle (FUFA), took him off from retirement and reappointed as the Army Chief and then had a ‘no objection’ certificate from him to try the army men mutineers in civilian court. Two, she engineered annulment of the Indemnity Act of 26th September 1975 through simple majority vote in the Parliament that remained illegal as the Indemnity formed part of the 5th Amendment of the Constitution that exists there still today and needed two third majorities that she did not have. Three, the lone judge she appointed having had given promises of perks, etc. in the special court himself admitted in his verdict in 1998 that he had not sufficient time to look into each and every aspect closely relevant to the suit. Four, the witnesses making identification of the accused after about 23-24 years in 1997-1998 and then in the darkness of the early morning remained not only incredible but also in serious doubt as to the acceptability as valid witnesses.
(viii) With the above serious flaws, not all listed for sure with full accuracy as myself is not a practicing lawyer in criminal procedure code, and illegality, the lawyers of the accused intimidated all throughout, got a verdict done on the 8th November 1998 wherein the case was taken as a simple murder case, and nothing of the real victorious mutiny that had factually been. The hand picked judge sentenced fifteen to death and acquitted five others.
(ix) As the conviction case lawfully went for confirmation to the High Court, there had been serious intimidation of the 2 Justice Bench members not only understandably by the top executive for obvious reasons of reprisal of her father’s blood but also by the party followers in the open streets of the capital city. One such orchestration procession was led by the Home Minister Nasim that could get possibly the ‘Split Verdict’, one Justice confirming death to ten and other confirming death for all 15 in December 2000.
(x) As the split verdict was no confirmation of the death sentence, the case was lawfully referred to the third lone judge, who made a rather quick disposal on the 30th April as the Hasina Government was coming to end of the five year term in about two months, adding two more to the list making 12 to die, who latter in 2002 clearly commented about the miscarriage of justice in a report published in the Dhaka daily The Independent on the 26th March, albeit, during another political government in power.
(xi) The four detained then in the prison filed appeal petitions immediately afterwards, but that appeal stayed pending for about six years until it was granted admission in August 2007. In the meantime the interim caretaker government brought back from USA one convict until then stayed out of the country, who then applied for appeal in the case. The August appeal admission had five legal points that the appeal hearing had gone for 29 days, 5th October to 12 November, 2009 but amazingly failed even to sort out the subtle point of difference between the intent or plan for the mutiny and intent to killing the President that the case involved life and death question of the accused! The Bench rejected the appeal summarily leaving everything on the April 2001 lone judge bench verdict who himself had the clear indication of miscarriage of justice as noted above (x).
(xii) A former Chief Justice of the Bangladesh Supreme Court in an interview with the BBC Bengali Radio Service aired on the 26th March 2001 also clearly stated that the 15th August 1975 case was not a simple killing but politics was with that. How could then the case have been tried exclusively as an ordinary murder case leaving aside the critical question of the successful mutiny involved in the matter? Was then the verdict not clear miscarriage of justice?
(xiii) Yet another retired Supreme Court Justice in an open discussion meeting on the 15th August 2008 held at the national Press Club VIP Lounge stated clearly verbatim in Bengali, ‘JARA FAROOKER FANSI DABI KORE TAR AGAE TADER SAFIULLAHR FANSI CHAITE HOBE’ (Those who ask for Farook’s hanging to death had to demand far ahead the hanging of the then Army Chief Safiullah) was published as news item on the 16th August 2008 in many Dhaka dailies like Naya Diganta, Amardesh etc. Was this comment anything short of continuing miscarriage of justice done in the case? Possibly, he referred the issue to the question of failure of Command Responsibility as is provided in The Hague Convention of 1907 and in examples of trials in the last century of one Japanese General Tomoyiki Yamashita hanged to death as there was no provision then for commutation of death sentence anywhere but Captain Earnest Medina was acquitted as innocent.
(xiv) The point just above has obviously brought in another issue that the whole trial process was interfered with and directed by powerful quarter to net some smaller fries as escape goats and left the big fishes out of the net for purely political consideration of vengeance. The point further brings in the well known issue in Bangladesh of deep hatred of the party chief, in particular, for anything of the Bangladesh Army for she mistakenly perceived the national institution and so after their blood. The BDR massacre of the 25-26 February 2009 that had been most cruel and ferocious killings of the 57 army senior officers, Captain to Major General, in a go of over two days and darkness of two nights in full knowledge of Hasina and operational involvement of her Home Minster Sahara Khatun and close associates like Tapash, M.P. Nanak, M.P., Azam, M.P., Torab Ali etc in the brutal killings and massacre while the Army Chief as the subordinate to the P.M. kept mute spectator in the capital city itself can hardly be digested by all old and informed men like us as nothing but an orchestration for the hatred she keeps burning on in her sadist mind and ego. The miscarriage of justice engineered in the case under reference can just only be an extension of the hatred she had for nearly 34 years.
7. The Amnesty International, as opposed to any death sentence like, at least, 94 more humanly developed countries already abandoned the death sentence worldwide and also like many human rights organizations including the UN after 18th December 2008, has promptly, on the 20th November (09), made the request to the President of Bangladesh and also to the Prime Minister, Sheikh Hasina, to restrain from executing the verdict and at least to commute the death sentences of the 12 convicts. Another request was also made by the Bar Human Rights Committee of England and Wales in their letter of the 24th November (09) to commute their death sentences. The Islamic jurisprudence, as well, has provided for either ‘forgiveness’ by the victim’s family members or payment of ‘compensation money’ by the accused to the victim’s family as alternative to death sentence.
8. Other media of international level like The Economist in the 27th November (09) issue has labeled the trial as ‘POLITICAL TRIAL’ of Hasina. The Holiday of Dhaka, a courageous English weekly, on the 27th November (09) issue has made a ‘post-mortem’ of the verdict making reference to the question of Command Responsibility as per the Hague Convention of 1907 and the cases mentioned above (xiii) that must have drawn attention of all sensible souls in the miscarriage of justice in the case.
9. However, the ball is still in the court of the judiciary and of the executive as the Review of the verdict is still to be made shortly. Or else, the Bangladesh Judiciary might be tainted badly for the 19th November (09) verdict upholding the death sentence in this case.

Author: H B Khair

The Role in Essence of Jinnah and the Muslim League in the 1947 Partition of the British India

In hospital
On the 13th December I was admitted to the BIRDEM Hospital for urgent attention to my deteriorating diabetes level. This was the fourth time of my getting admitted there and second time this year since 10th June when I had a heart attack. I am so fortunate that I get VIP attention and the best treatment available there for being even more fortunate father of an eye specialist employed there now for about 12 years.

2 Recent books
This time I had two books for my pleasure reading, one Jaswant Singh’s famous and recent book Jinnah-India-Partition-Independemce and the other one, Will Secular India Survive, a collection of 14 scholarly articles by high profile academics, edited by Professor Mushirul Hassan of the Jamia Millia Islamia, India, one time Rahimia Madrassa of Shah Waliullah established in the mid eighteenth century and now in the post 1947 Independent India secularized University, somewhat like the pre-1947 Calcutta Islamia College turned into Maolana Azad College immediately after the 1947 Great Divide.
Somehow the two books with me in the hospital cabin drew some attention of the attending physicians, one in particular, a young lady doctor in specific charge of the cabin, I understood.

Young Physician
On a brief occasion just before my discharge on the 23rd December, she asked me first about my profession. I told her about my spending the life as a teacher now nearly 52 years and fully retired from actual class room teaching in a private university three years and a half ago mainly for my failing health. Possibly, her next question was about Jinnah’s division of India and establishment of Pakistan based on religion.

Responses
I responded in my own way. India was not divided in 1947 solely for religious reason, much less by Jinnah for Islam. What Jinnah had uncompromisingly stood was for securing basic rights and dignity of all including the minority Muslims on all India basis to live as free citizens once the British would leave as foreign rulers, and the majority representing the Caste Hindu Congress would not continue to suppress, oppress and exploit the minority Muslims in perpetuity. Jinnah almost until the last critical time of 1946 tried to keep India united and have independence from the British rule as one bigger India. But the Congress leaders like Patel and Nehru, in particular, by their shear arrogance against the genuine grievances of the minorities forced upon the partition as transitory measure with hidden agenda sooner than later to foil the new State of Pakistan, and reintegrate once again into the mother India or AKHAND BHARAT (See, Nehru’s letter, for example, of 23 May 1947 addressed to Tipperah’s/ Comillah’s Congress leader Ashrafuddin Chowdhury, Jaswnt’s Jinnah…, p.508).

Propaganda
The issue of Partition based on religious divide is rather a mischievous propaganda against Jinnah as he had all along been a broad minded person and according to famous Congress leader of the early twentieth century, Gokhale, the Ambassador of Hindu Muslim Unity. Jinnah had no religious bigotry. What he strived on for alleviating the appalling conditions of the minority Muslims all through from his early political career in the Congress Party and did not join the Muslim League, for example, he along with the Congress leader Gokhale he piloted the Muslim Wakf Bill in the Imperial Council to pass as the Muslim Wakaf Act in 1913. On joining the Muslim League he continued the pursuance for the Muslims, being then about 33% or one third of the all Indian population, for protection and safeguard of basic citizenship rights once the British would have left. For in the foreseeable democratic set up in post British India the majority would continually trample upon the minority Muslims who had continued to suffer all the disadvantages during the British rule from 1757 to 1947 along with the lower caste Hindus and other disadvantaged native people in millions. The Congress leaders cared little for the minority Muslims in the future set up. Even in the Muslim majority provinces like Bengal, Punjab, Sind and the Frontier, the autonomy set up proposed by the Cabinet Mission Plan in 1946 with right to opt out in ten years if they would so choose to do was torpedoed by the Congress, particularly by the party President Nehru through his 10th July 1946 press statement. Had he not had torpedoed the Plan in the way that even many other Congress leaders termed as shear folly, India would remain undivided one with safeguard of full autonomy as per the Cabinet Mission Plan for the Muslim majority provinces.
It was only after the torpedoing of the Cabinet Mission Plan by Nehru that the Muslims, Muslim League and Jinnah had no option but to stand more firmly solid for the division of India and for one independent Pakistan comprising the Muslim majority provinces in the western and in eastern India.

Bengal Legislators (1946)
So far as the partition of Bengal was concerned, it was not only the Muslim majority Legislators of 1946 election results but also the absolute majority (106+21=127) of both Muslim (106-35) and Hindu Legislators (58-21) of Bengal combined voted against the partition, but the Viceroy Mountbatten in queer logic forced upon the partition having had obviously the same motive as Nehru had and examples given above (M. Hassan, ed., The Partition Omnibus: ‘Divide and Quit’, p.237).

Partition Reconfirmed
The 1947 partition of Bengal was not negated but once again reconfirmed in 1971 following the victory in the war when despite enthusiasm from certain quarter like Awami League M.P. (1970) from Barisal, Chiitta Ranjan Sutar, in particular, failed to impress for further action upon the then Indian Prime Minster Indira Gandhi to integrate Bangladesh into the Indian fold that she fortunately declined to do right then saying, AVI MUMKEEN NEHI. For the time being the Indian P.M. Indira remained content with partial attainment well known in her verbatim, HAZAR SALO KA BADLA LE LIA. I did not tell the young doctor all these facts in elaboration made here as she was busy with other priorities but even so asked me few other questions.

Unity in Diversity
One such was that she wished to impress upon me that the Muslims had regional differences in many aspects of lives and so were different the Muslims of Pakistan and Bangladesh. Apparently there is little to disagree about, I said. But my point to her on this issue was that in matters of spirituality based on undiluted monotheism and belief in equality of human being, Islam binds all Muslims in the same cord that is hardly comparable with any other existing formal religions. Not only this. The apparent regional and geographical differences in general override all other religious people in matters of value system developed and sustained in spiritual origin that the holy Quran upholds in all purity that no other religion can claim for certain. Thus the Muslims alone as a religious group all over the world, despite apparent differences, have still been maintaining the foundation of life system with the highest level of value aspirations in private and personal lives on which the social superstructure and all other decorations are sustained. The superficial difference manifested though appreciable, the foundational unity is unique and indivisible, unity in apparent diversity.

Facts to Ponder
I gave her some recent facts, not century old ones, as I could right then recall from memory as to how the Muslims in India after 1947 have continually been in deprivation in all matters- in jobs, employment, housing, education, landholding etc. ( See also, M Hassan, Will Secular India Survive, NSSO, 1999-2000 facts and figures quoted in pp.245-6) and even more than the scheduled castes, Dalits, Harijans, tribals etc as they have reservations in those social and economic opportunities that the Muslims do not have since after 1947. Even the reservations in public bodies that existed during the British rule since early twentieth century beginning from the Morley-Minto Reforms of 1909 were done away with in post 1947 independent India. How Bangladeshi Muslims would fare in social opportunities in undivided Bengal with the capital obviously in Kolkata, then in that case Dhaka remaining possibly even now, at best, a small divisional town and in one united India? Minus the Partition of 1947, how would the Bengal Muslims and many others disadvantaged people fare in the all India context and if the Muslims would have misfortune anything other than the overwhelming Muslims of the Indian held Jammu and Kashmir?

Gaps
I knew that she is a young doctor specialized in Diebetes, even junior to our third son working there, and I know that such technical specialists of the post Bangladesh generation including my sons and daughter, all technical professionals, are not only quite ignorant about the past British period pitiable history of the Muslims in India and in Bengal in comparison with the high caste elite Hindus in contrast with the position of the pre eighteenth century Muslim period rule but also had little scope to know about the clear and unbiased history of the nation. As she had time constraint, she was to give time to other patients thus stopping the debate, I asked her to read through carefully those two books I had with me, written by contemporary Indian academics for understanding Jinnah’s struggle for Pakistan in some depth and also think in depth about the two words, theocratic and theocentric, for Muslims should ideally aspire for theocentric society of individual piety and not for theocratic state so far as Muslim state foundation and superstructures are concerned in the present world context.

Jinnah and Muslim League
It is true that the platform of the Muslim League provided Jinnah with at least three achievements, according to American historian and author, Stanley Wolpert- ‘alter the course of history’, ‘modify the map of the world’, ‘creating a nation state’ from nothing or ‘scratch’. It was Jinnah’s leadership that raised the Muslim League, though established on the 30th December in 1906 in Dhaka, to heights of achievement after running through a long period of bewilderment for clear goal that in 1940s Jinnah’s leadership provided rightly in fulfilling aspirations for Pakistan for the then deprived British Indian Muslims.

Author:
Dr. M.T. Hussain
Dhaka
27 December 2009

(This is a birthday presentation to our only daughter who turns fifty today and a consultant physician herself and now a constant nurse for me since I fell ill from heart attack on the 10th June 2009 and then on bed ridden).

1975: The Crime and Verdict in Retrospection

Since fact is stranger than fiction and eye-witness accounts at times are more unbelievable than Ripley’s “Believe It or Not”, any narrative of what this writer experienced first hand as a young university lecturer in Dhaka during the tumultuous, uncertain and bloody days of 1975 is bound to evoke controversy, doubts and even anger, among sections of the Bangladeshis at home and abroad. Then again, nothing could be more immoral than not telling the truth for the sake of it.

This is an attempt to appraise the following: a) the killing of Sheikh Mujibur Rahman, one of the founding fathers of Bangladesh by his own troops in 1975 and the belated trial and the final verdict of the Supreme Court on 19th November 2009; b) some ardent Awami League followers and supporters’ argument that some “misguided soldiers” who killed Mujib had nothing to do with a mutiny; c) some Awami Leaguers’ contention that people at large and Mujib’s followers could not publicly condemn let alone resist the killers as they were overpowered by a military takeover; and d) if the Verdict is going to usher in the rule of law in the country paving the way for good governance and protection of human rights.

As by 1969 I had been somehow convinced about the veracity of the “Two Economy Theory” sold by our teachers and leaders, to me, the emergence of Bangladesh signalled the advent of the “promised land”, free from corruption, bad governance and exploitation; or at least this is what we believed for quite sometime up to early 1972. While 1971 was very traumatic and uncertain for almost everyone who lived in what was then East Pakistan, a land under an occupation army; a nation besieged by the state of Pakistan; most of us who survived 1971, paradoxically turned crestfallen not long after the Liberation.

For many including this writer, the declaration of the one-party government by Mujib “the democrat” was the last straw. Most University teachers felt their employers’ asking them to join the ruling party (BKSAL) was frightful and humiliating. By mid-1975 from military generals to top bureaucrats had joined the BKSAL, while all other political partiers had been proscribed. The situation was not that different from what prevailed in the Soviet Union. Clenched-fisted BKSAL workers’ orchestrated shouting in public places in 1975—“One-Leader, One-Country; Bangabandhu-Bangladesh” (Ek Neta, Ek Desh; Bangabandhu-Bangladesh)—sounded quite ominous for many non-Awami Leaguers, which may be likened with how fascist workers used to intimidate their opponents in Europe in the 1930s-1940s.

In spite of this, what took our breath away was the brutal killing of Mujib and most of his family members – including his ten-year-old son and pregnant daughter-in-law – by a handful of Bangladeshi soldiers in August 1975. What was even more startling – and sickening to the extreme – was the way all his cabinet ministers barring a few and most of his close associates and party-men either joined hands with Mushtaq, the new President, and / or publicly rejoicing defended the killing as “necessary” and “unavoidable”. Newspaper editorials glorifying the killers demonized Mujib and his rule in justification of the killing and the new regime under Mushtaq. Among others, Mujib’s close associate, Abdul Malek Ukil, the speaker of the parliament, within weeks after the killing publicly stated at Heathrow Airport: “The country has been relieved of the Pharaoh”. While the military-backed Mushtaq regime glorified the killers as “brave sons of the liberation war”, the successive governments kept most of them employed at Bangladeshi missions overseas until the election of Sheikh Hasina, Mujib’s daughter, as the new Prime Minister in 1996.

Signalling the death-knell for the killers of 1975, the new government brought murder charges against the killers cancelling their immunities granted by the Mushtaq regime, and upheld by Gen Zia. Finally, after 34 years of the killing, on 19th November 2009, the Supreme Court in its judgment sentenced the killers to death for their dreadful crime. Meanwhile, people across the board are congratulating the judiciary and the government for upholding justice for the sake of ushering in the badly needed rule of law in Bangladesh. So far so good. Nevertheless, the question that bugs me a lot is that if this belated judgment is really going to bring about the elusive rule of law in this land of misrule, infested with crime, corruption and impunity.

Without having any reservations whatsoever about the fairness of the judgment, despite some loopholes in the method of trying military officers at a civilian court (as pointed out by some attorneys and legal experts), I am skeptical if the trial process could be ever initiated had Mujib’s daughter not been the Prime Minister. I am equally skeptical about the possibility of trying all those state and non-state actors who have been killing their adversaries with impunity since the 1970s. They include members of the law-enforcers who have been killing suspects and innocent people in the name of “encounters” (crossfire); and influential godfathers who have been killing and expropriating people, often their political and business rivals, with impunity. As it is almost impossible to find out a BNP-supporter who would favour the posthumous trial of President Ziaur Rahman for his alleged extra-judicial killing of thousands of people; so is it almost out of the question to get an Awami-supporter in favour of trying those who killed Siraj Sikdar in the most gruesome manner. Similarly JP supporters would go up against any suggestion to try the killers of those killed during General Ershad’s military rule; and nothing is more unpalatable to the Jamaat-i-Islami than the brewing demand for the trial of its leaders and supporters for committing “War Crimes”, including murder, in 1971.

Now we hear from many Awami leaders/followers that the 1975 takeover in the wake of the brutal killings was not a mutiny but a “sporadic criminal act” by a handful of “misguided soldiers”. One wonders as to why people and thousands of soldiers, BDR, Rakkhi Bahini and police did not come out on the street to punish those “handful of misguided soldiers”! These are quite enigmatic facts a) as to why General Osmani, the Commander of the Liberation War, went to Dhaka Radio Station in the morning of 15th August 1975 and was seen together with some of the killers; and b) as to why the army and air force chiefs paid allegiance to the “handful misguided soldiers” publicly through the media. Had the 15th August episode been simply a crime not a mutiny (or revolution), as to why all but four top Awami League leaders took oath of allegiance to Mushtaq as his cabinet members? As mentioned above, some Awami Leaguers assert that people at large were too afraid to condemn, let alone resist, the killers as they had been overpowered by a military takeover. Only one of the above versions may be acceptable to us.

Hardly anybody is telling the truth that not Mujib alone but the entire nation collectively created Bangladesh; so it is not fair to blame him for whatever went wrong in the country till his tragic death. Bangladeshis should learn from the Americans who believe their country was liberated by their “founding fathers”, not by Washington alone. They share the credit and blames together. Sycophants (”Chatar Dal” to paraphrase Mujib) who had convinced Mujib that Bangladesh would become Sonar Bangla (Golden Bengal) through “socialism” or state-capitalism (a gold mine for corrupt politicians and bureaucrats) or through friendship with India, USSR and Cuba, not by bridging support from the rest of the world, must have been collectively guilty for the misery of Bangladesh.

Conversely, soon after his killing, Mujib’s sycophants condoned and even celebrated the carnage to appease Mushtaq, the new patron at the Bangabhaban. With a view to currying favour with Sheikh Hasina, making fools of themselves, they are now singing an altogether different song. Most analysts believe that Mujib’s alienation from the urban middle classes and intellectuals finally led to his tragic end. In sum, one may welcome the verdict as a major positive step towards justice; a bold departure from the path of condoning extra-judicial killing is nevertheless an auspicious beginning. Bangladesh has reasons to be happy about the verdict. However, nothing could be more hackneyed than assuming that without addressing the issue of extra-judicial killings in the past and the ongoing Draconian “cross-firing”, the verdict alone is going to bring peace and progress in Bangladesh.

Author: Taj Hashmi
Source: Bdnews24.com

Corruption, democracy and Bangladesh

Bangladesh has had a troubled political history since gaining independence in 1971 and is also beleaguered by poverty and natural environmental disasters. In particular, corruption is blighting its prospects for economic growth, undermining the rule of law and damaging the legitimacy of the political process.

Corruption the word itself is very familiar to us. Especially during the care taker government, it has got a special meaning. Of course we still remember the unfortunate fame we have got as a nation last few years being first in corruption. But the good news is that our country is one of those countries which have been able to radically improve her corruption situation. This year she improved her ranking to 139 out of 180 countries, which is definitely a good achievement.

However, is this enough? Can we say there is very little corruption in our country? It is sad but true that we will see corruption at every level in our national, political and private life. And the most shocking thing is, corruption is becoming acceptable to most of the people. People are taking it like a normal matter. The attitude they have got towards corruption is very unfortunate for our nation both economically and morally.

In broad terms, corruption is the misuse of public office for private gain. It encompasses abuses by government officials such as embezzlement and nepotism, as well as abuses linking public and private actors such as bribery, extortion, influence peddling, and fraud. Corruption arises in both political and bureaucratic offices and can be petty or grand, organized or unorganized.

Recently I was talking to some of my friends, who are waiting for their upcoming interview for 28th BCS. All of them are graduates from Dhaka University. Surprisingly they were not talking about the possible question they might face in the interview board. The topic they were talking about was how they can get a link among the PSC members and how much they are willing to pay for the job. Later on I found out that this is very common thing here. It’s shocking but true. I was staggered to think these are the people, who are going to run the country by becoming judges, police officers, teachers and all. Is this corruption? Don’t know about other country but in Bangladesh I think it is not. Or at least the people of our country don’t think so. Otherwise, they will not willingly be part of it. Or the system, that has made the people to be part of it.

I find this very hard to believe that how the people making wrong things right. No one is questioning about this. They are taking the entire wrong act as it is. I understand the system has made us like this but why are we taking part in it. It always takes ‘two to make a tangle’. So off course if we don’t support this system which is based on wrongful act then this so called corrupted system will never work out. But who will make this universal truth realize to our people.

Corruption has become a part of culture and society, not just government, and measuring the extent to which ordinary citizens are willing to justify corrupt acts is a complementary effort to measuring perceptions of government corruption. It has been documented that corruption is negatively related to economic development and to the existence of democratic institutions.

Now the question is whether both systemic and cultural modes of corruption are involved in such relationships. It is also feasible that corruption can play an important role in political competition and definitely it has a very negative effect on our national development.

There are significant cross-national and cross-regional variations in corruption permissiveness, and attitudes toward corruption are indeed strongly and negatively related to democratic attitudes. Corruption permissiveness’ is, in particular, strongly and negatively correlated with support for democracy and with interpersonal trust, both of them being important components of a democratic political culture.

Many observers regard corruption as a growing threat to our democracy, while others take a more optimistic view, seeing the increase of corruption revelations as a sign that there is a crackdown on corrupt politicians and entrepreneurs.

It is commonly observed that after adopting competitive elections and market liberalisation (”democratisation”) our country has experienced a rise in corruption. On a more complete conception of democracy, however, such correlations should not be surprising.

Incomplete democratisation often puts into place incentives for corruption, while lacking those elements of democracy might enable those harmed by corruption to fight back.

If corruption involves harms caused by exclusion, a key means for fighting corruption should involve empowering those harmed to protect themselves by democratic means: with information, arguments, organisation, and votes.

However the question might arise, what comes First: Democracy or corruption? Although the definitions of democracy vary in scope they generally include three basic concepts: competition, equality and rule of law. Corruption undermines each of these concepts. Unfair advantage through corruption undermines competition. Corruption is used to make some people more equal than others. Unchecked corruption in society undermines the rule of law.

Why don’t we understand that corruption poses a serious development challenge? In the political realm, it can seriously undermine democracy and good governance. Corruption in elections and in legislative bodies reduces accountability and representation in policymaking; corruption in the judiciary suspends the rule of law; and corruption in public administration results in the unequal provision of services. More generally, corruption weakens government institutions by disregarding official procedures, siphoning off the resources needed for development, and selecting or promoting officials without regard to performance. At the same time, corruption undermines the legitimacy of government and such democratic values as trust and tolerance. And this we can feel every moment.

Corruption also undermines economic development. In the private sector, corruption increases the cost of business through the price of bribes themselves, the management cost of negotiating with officials, and the risk of breached agreements or detection.

Although some claim corruption reduces costs by cutting red tape, an emerging consensus holds that the availability of bribes induces officials to contrive new rules and delays. Corruption can also shield companies with connections from fair competition, thus allowing inefficient firms to survive. But none of us are taking any responsibility about this corruption. On top of that we are indirectly helping corruption by taking part in it.

Corruption also generates economic distortions in the public sector by pulling public investment away from education and into projects where bribes and kickbacks are more plentiful. Corruption also lowers compliance with construction, environmental, or other regulations; reduces the quality of government services; and increases budgetary pressures on government.

But we the people of Bangladesh do not understand the bad effect of corruption. We are not taking any responsibility towards it. Instead what we are doing is accepting it and helping towards it by taking part in it. One thing we can do very well is to pass the responsibility on others. It is very common to say that the system is corrupted, the government is corrupted and the officials are corrupted. Bur we will never agree that we are the one who are helping this system, government or the officials to be corrupted by accepting their wrongful act. As long as we will not take the responsibility on us then corruption will never end from our society, from our country. As soon as we all will start questioning about the system and stop acting according to the system, the system will break down. And corruption will run from our life. It is high time for us to identify the right and the wrong and say a ‘BIG NO’ to all sorts of corruption.

Author: Barrister Arafat Hosen Khan
Source: The New Nation

Indemnity and Power: Misused and Abused by Both Mujib in 1972-75 and by Hasina in the 15th August 1975 Mutiny Trial in Bangladesh

Sympathy
It is right and highly appreciable that some sane people and humanitarian organizations in the world have taken up some interest and expressed concern on the 15th August Mutiny Trial (Sheikh Mujib Murder) case of Bangladesh that had the Supreme Court (SC) verdict on the 19th November, 2009. The Amnesty International’s public statement made very promptly on the following day, that is, on the 20th, has already been blasted out by some ministers and law officers of the country. Some courageous press, however, was also smart enough to blast the silly remarks made by those inept Bangladesh officials.

Unhappy
So far individuals and organizations unsympathetic to the verdict have voiced their concerns in the matter of the death sentence upheld in the one Justice Bench of the High Court made in April 2001 through rejection of the appeal by the SC. Some sought for forgiveness or Pardon ( Serajur Rahman, Daily Naya Diganta, 24 November, 09) by the President of the country of the 12 put to death sentence and some, the Amnesty International (AI), specifically, for commutation of the death sentence for that is their policy worldwide based on the Universal Declaration of Human Rights. One well informed and courageous commentator in his approach published in the weekly Holiday, Dhaka, 27th November (09) questioned the legitimacy of the trial in valid legal terms bringing in the norms of the Hague Conventions of 1907 and examples of two case reference trials – one of Japanese General Tomoyuki Yamashita and the other US Captain Ernest Medina- the first one was tried by the US Supreme Court and executed and the second one acquitted, both in the last century. The crucial point in those trials was that they involved failure of ‘Command Responsibility’.

Command Responsibility
In the Mujib ‘murder’ trial failure of command responsibility involving the then Army Chief General Safiullah and also Air Chief A K Khondoker, a cabinet member of the present government, remained lawfully relevant. That is why as the 2001 April court justice had then remarked in his verdict that General Safiullah must have been the accused, not a witness as amazingly was made. Possibly one judge in the SC Bench rebuked him as the ‘coward’ or spineless General. How could the crucial legal point overlooked for Safiullah’s being witness and not accused in the case?

Former SC Justice
On the same Safiullah’s relevance, there was a report in at least two Bengali dailies of Dhaka, Naya Diganta and Amardesh on the 16th August 2008 wherein one remark of a senior retired SC Justice was, ‘JARA FAROOKER FANSHIR DABI KORE TER AGAE SAFIULLAHR FANSI CHAITE HOBE’ ( Those asking for Farook’s hanging must ask first Safiullah’s hanging). I understood that he meant and referred about the failure of command responsibility.

Former Chief Justice
The other observation I right now recall is that made by one retired Chief Justice of the Bangladesh SC in an interview with the BBC Bengali Service item aired on the 26th March 2001 that the 15th August ‘murder trial’ was not just only a matter of killing but politics was with that. I took that as he meant to be the lawful transfer of power and inherent indemnity of the operators of victorious coup or mutiny.

Indemnity
Now coming back to the other important legal points, first, that the Indemnity was formally granted to the mutineers on the 26th September 1975, though superfluously as successful mutiny enjoys its inherent indemnity, that was thrown off not through full legal basis by the same genre of the government in November 1996 as is now in power through violating the legal basis of the Indemnity. For it is known that indemnity once given can not be taken back afterwards as it happened in the case of the first Indemnity Mujib himself granted to many including the notorious and unconstitutional RAKHSMI BAHINI’s extra-judicial killings of thousands (about 35,000 according to one estimate) effective from the 1st February 1972 up until his fall in mid August 1975. Then afterwards though the Rakhsmi Bahini was disbanded by the post 15th August government, the indemnity was not taken away by any successive governments.

Not Permissible
Retrospective effect of any legal instrument is not permissible in legal jurisprudence that was clearly done in the case by repealing the 1975 Indemnity in 1996 and then was given retrospective effect of 21 years for the 15th August 1975 case.

5th Amendment
The Indemnity ordinance of 1976 constituted part of the 5th Amendment of the Constitution of 1979 by way of the relevant order of the Martial Law Authority that took over the administration immediately after the 15th August change of political government with the Martial Law Government enforced. Being thus part of 5th Amendment, the repeal of the Indemnity Act needed two third majorities that the government had not had; they disregarded the provision of two third majorities and so unconstitutionally and arbitrarily did the annulment of the Indemnity Act of September 26 1975 through simple majority that clearly violated the 5th Amendment of the Constitution existing still today. That is how they started the trial in 1996 with the first serious lacuna of illegality.

Two standards
One must not forget that the Indemnity they repealed in 1996 was rather arbitrarily, because the other Indemnity, particularly, for the Rakhsmi Bahini’s extra-judicial killings of unaccounted thousands including that of one noted underground party leader of the Purba Bangla Sarbahara Party Seraj Sikder on the1st January 1975, and all of such killings from 1st February 1972 to 1975 mid August during the most oppressive Mujib rule were silently forgotten. Why the two set of standards for two the Indemnities? Could that be anything else but only to put the theatre of trial action for reprisal against some escape goats leaving the big ones like Safiullah out of the net?

Interference
Those who are aware of the earlier versions of the trials during 1996 to 2001, there was little doubt in sensible minds that those were either executively managed or pressurized openly for particular verdict. According to a Dhaka daily The Independent of the 26th March 2002, the honorable Justice of the April 2001 one judge Bench had some remarks published that stated, one, ‘After one hundred years people will say that it was not a judgment at all’, two, ‘Safiulah should have been an accused and not a witness’. Clearly the case was framed up one to punish some escape goats and left unaccounted the big fishes. The same heinous mode was seen in the October-November conducting of the appeal in the visible siege like environment and scenario created by the party hoodlums and even law enforcing agencies for all out intimidation of the judges of the Bench and for all sympathetic to the cause of the mutineers, and hence there was no scope to give fair judgment in the ‘climate of fear and intimidation’ as one renowned journalist had his observation headlined in a Dhaka weekly on the 13th November (09).

No Benefit of Doubt
There were five weighty and valid legal points in the admission of the appeal in August 2007. How come that not a single point or even a part had been duly considered in depth by the Bench in the final appeal hearing? How about giving no consideration in the question of the failure of command responsibility? How about the benefit of doubts as there were many in all those five points, particularly, in the subtle matter of if the mutineers were there to kill or to make a successful mutiny that should have been for relief in the matter of life and death of all the accused? Was it at all required for the Bench to ask for evidence in the shape of ‘legal document’ (Ref: The New Nation, Dhaka, 20 November, 09) in support of the mutiny? Mutiny as the incident implies that the action programs are by themselves secret and somewhat spontaneous. Mutiny also meant and always means toppling the existing government and replacement by new one. That was done immediately as soon as the mutiny was finished having had no resistance whatsoever and having due allegiance by the three units of the military forces of the country. That meant that through the mutiny the military power completed the take over of the country that they had planned. Whatever killings were unfortunately done were the result of encounter of both sides and the mutineers won, in fact, in the brief engagements in the morning hour of the 15th August 1975 for only few minutes, not for hours that also meant that the army men went there for taking over the State power from the inefficient, corrupt and oppressive government through the mutiny. None, much less the mutineers had any personal enmity with the fallen President but only great national cause appreciated both inside the country as was proved by almost all countries accepting the change and provided recognitions. Even countries like China and Saudi Arabia who had not had recognized Bangladesh in over three and a half years time came up in support of the post mutiny Government and accorded recognition to Bangladesh as an independent and sovereign country. Should not one take these serious legal lapses of the Bench as matters of puzzle for that the time differed, then for admission of the appeal during the non-political care-taker government in 2007 and in 2009 of completely different scenario of the same genre of political government of the 1996-2001 and of their well known egoistic drive for persuasion for reprisal and vengeance? Had there been any government other than of Hasina’s, the verdict would have been different and certainly not death penalty. That is why possibly even the Economist (27 November, 09) has termed the SC‘s ‘short order’ as ‘Political Trial’ of Hasina.

Not an End in Itself
The political government got on with the case with abuse of the Indemnity and the misuse of power continued through out that obviously made the miscarriage of justice up until now. Only the Almighty knows where the issue would lead to not only in the execution matter of the case but also of the country vulnerable to big neighbor’s already threatened interference for the particular idol and not for the common people.

Author: M.T. Hussain

Post-mortem of Mujib killing trial vis-�-vis AI’s appeal

History may be written by the victors, but the rules of law can and should offer differing interpretations of history when needed. Unless that becomes evident, any meaningful debate on as historic and sensational a matter as the Sheikh Mujib killing trial is likely to remain less convincing to observers at home and abroad.

Besides, various sections of the government having rejected on November 23 the Amnesty International’s (AI) appeal against the execution of the five former army officers convicted for the murder of Sheikh Mujibur Rahman on August 15, 1975, such utterances could prove prejudicial to the discretion the Honourable President of the country does possess in exercising his Constitutional obligations.

AI’s argumen
The AI made the appeal on November 20 in a public statement, calling on the Bangladesh authorities not to carry out death sentences against the five convicted accused whose prayer for judicial review got denied on November 19.

The AI statement embodied a principled stand of the organization that reads: “Amnesty International opposes the death penalty in all cases regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner. The death penalty violates the right to life as proclaimed in the Universal Declaration of Human Rights. It is the ultimate cruel, inhuman and degrading punishment.”

The statement added, “President Zillur Rahman should commute the death sentences as a matter of urgency. All other death sentences should also be commuted.”

Post-mortem of the verdict
Meanwhile, since the verdict at the nation’s apex court, speculations have marred the exact legal interpretations of the laws that would govern the timing and the modalities of the penalties imposed on the accused, the pre-emptive and the prejudicial utterances of various government mouthpieces not to commute the death sentence by the President notwithstanding.

As the countdown to hanging advances (the convicted accused are all decorated Freedom Fighters), many observers question how the leave to appeal application got accepted by the court for a review hearing in the first place, if there was no discernible error in law, facts or natural justice, as the final verdict seems to have shown.

Army chief’s blunder ignored
The collective fault argument is a double-edged sword, although the prosecution and the judges chose to use it as a mere tool of political convenience instead of according it the legal relevance and weight it lawfully deserved.

The verdict has overlooked that the argument of collective fault of the military command does shift the onus of the crime on the highest command of the armed forces and makes it an offence of rebellion, or a coup d etat, which can only be tried by military courts under corresponding laws and regulations.

Besides, the fact that two of the three incumbent chiefs of the services of the time — Maj. Gen. K M Shafiullah and Air Vice Marshal A K Khandoker — are high officials, and incumbent minister (AK Khandoker) of the AL-led government, unearthing a distinct military-political nexus in the crime’s commission was necessary, especially one of Sheikh Mujib’s trusted ministers, Khondaker Mustaque Ahmed, having sworn in as the country’s new President after the coup, as did many other cabinet members from Mujib’s government.

Command responsibility
Now that the verdict has been rendered, the argument on command responsibility does not cease to vanish, and, it remains a very serious one, with ample ramifications for the Constitutional and the military history of the nation. Often referred to in the legal parlance as the Yamashita standard or the Medina standard, the ‘command responsibility’ is an established doctrine of law that deals with hierarchical accountability in cases involving crime committed by military personnel who are under command, breaking the chain of command from the top.

The Hague Conventions IV (1907) and X (1907) established the doctrine of “command responsibility” and it was applied for the first time by the German Supreme Court in Leipzig, following World War I, in the trial of Emil Muller.

The ‘Yamashita standard’, on the other hand, is based on the precedent set by the US Supreme Court in the case of Japanese General Tomoyuki Yamashita. Gen. Yamashita was prosecuted, in a similarly controversial trial, for atrocities committed by troops under his command in the Philippines. The charge against him included “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command.”

Finally, the ‘Medina standard’ is based upon the prosecution of the US Army Captain Ernest Medina in connection with the “My Lai Massacre” during Vietnam War. Although Captain Medina was eventually acquitted of all charges, the precedent holds that a commanding officer, being aware of a human rights violation or a war crime, remains criminally liable if he does not take action against those who commit such crimes. The same doctrine has been used in many countries to implicate senior commanders of armed forces in trials relating to mutiny and insubordination.

Fake state of denial
All these show that the verdict could and should have been more exhaustive and insightful in its deliberations in order to make a lasting imprint on the posterity.

Let’s not forget that the AI does whatever it is mandated to do. And, the matter of granting an amnesty not being dependent on any particular minister or prosecutor of the government, it was surprising that Home Minister Sahara Khatun rejected the AI appeal that simply insisted that “one human rights violation (the killings) should not be followed by another of hanging the convicts.” This state of denial does infringe into the Presidential prerogatives that is yet to unfold.

Worst still, the chief state counsel Anisul Huq’s cautioning of the AI that it ’should refrain from making such request’ constituted an act of deplorable folly. The AI works independent of governments to ensure common good of entire mankind.

Author: M. Shahidul Islam
Source: Weekly Holiday

Kashmir without a soul

It is unbelievable but Srinagar has changed beyond recognition in the past four years since I was there last. Right from the swanky new airport to the hotel, a distance of about 10 km, there is modern construction.

However, trees have been cut down mercilessly to accommodate fancy thoroughfares. Walls running along the road have been demolished and the rubble is there for all to see. As I covered the journey to my hotel, I missed the old Kashmiri houses from where women with long trinkets would peer out.

Shops are well stocked and full of customers. Too much money is flowing in and the guess is that it is from Saudi Arabia, Pakistan and India in that order. The number of cars on the road is many times more than before. There are traffic jams and one has to keep the snarls in mind when one plans a trip. People move freely. I saw many women on the road without burka or headwear.

Militancy is by and large over. Some terrorists strike once in a while. They attacked the police at Lal Chowk recently. But I get the feeling that the media magnifies stray incidents. When attacks were a regular feature, there was curfew after sunset. Now the people are on the road even at 11 pm.

I did not see a single policeman on the road from the airport. Bunkers are mostly gone. I found one at Lal Chowk where some policemen stood with their fingers on the trigger. Papa One and Papa Two, the interrogation centres, have been closed. But detentions still take place. The biggest worry is the occasional disappearance of youth. Incidents like the rape of two women at Shopian are rare. But whenever they take place, they infuriate the people to the extent that they come out on the streets.

The mode of search, whether of a vehicle or a person, has changed. Policemen are more polite and less intrusive. Still a member of a very respected family told me how he and his wife were stopped on the road. A policeman wanted to search the woman but on his insistence a female officer did so.

The anti-India feeling is there beneath the surface. People are not afraid of saying so. However, pro-Pakistan sentiments have practically disappeared, more because of the Kashmiris’ perception of the mess in which the country is.

I found the Hurriyat leaders sober. One leader told me that they had vibes from Delhi that something positive would emerge. They are looking forward to talks with Prime Minister Manmohan Singh. There is an effort to have a consensus among the different parties, including the Hurriyat, before the prime minister’s arrival. Chief Minister Omar Abdullah wants New Delhi to talk to all political parties but has also emphasised that India should have a dialogue with Pakistan to resolve the Kashmir problem.

It was an interesting talk which I heard when I was sitting with the Hurriyat leaders. A young Pakistani American told them that what had surprised him after the span of three years since his last visit was that Kashmir was ‘being assimilated by India quickly’. They were embarrassed but did not want to reply to him in my presence.

Born in Kashmir, this young man is a member of a think tank in Washington. He told them that free state elections, watched by a large number of Americans on televisions, had made a great impression. He said they were beginning to believe that the problem was ‘more or less over’.

Former chief minister Farooq Abdullah is more candid than his son, Omar, who is losing his popularity fast. Farooq says there are ‘paid lobbies’ in the state to keep the problem alive. He accuses security forces, politicians and bureaucrats of having ‘a vested interest in the Kashmir crisis’. He has a point when he says that New Delhi has failed to make headway in resolving the problem. Not many solutions are hawked about now.

There is a suggestion that both Kashmirs should be demilitarised, India withdrawing its forces from the valley and stationing them on its border and Pakistan doing likewise and pulling out its forces from Azad Kashmir. But this depends on India and Pakistan reaching a settlement, supported by the Kashmiris.

The problem of Jammu and Ladakh has become ticklish. They do not want to stay with the valley. Jammu wants to join India and Ladakh wants a union territory status. True, the Hurriyat has never tried to woo Jammu and has seldom cared for the Kashmiri Pandits languishing there. Still both Jammu and Ladakh can be brought around if they were to be given an autonomous status by the valley within the state.

I have no doubt that the Kashmir problem will be solved sooner or later. But too much has happened in the state in the past. This makes it difficult for the old Kashmir to come back to life. Familiar symbols are dying. Sufism has been replaced by assertive teachings. Kashmiri music is dying out because society has been forced to acquire a religious edge. Old crafts attract fewer artisans because there is a race to earn a quick buck. The wazwan, a string of Kashmiri dishes served at one sitting, is still there but new cooks are hard to get.

The reintegration of Muslims and Pandits appears difficult. An Islamic identity has taken shape, reportedly more in the countryside. Kashmiriyat, a secular ethos, is beyond repair. The animosity among the three regions Kashmir, Jammu and Ladakh, may dilute but will remain. It may still remain the state of Jammu and Kashmir. But its soul would be missing.

By Kuldip Nayar
The writer is a leading journalist based in Delhi.

Where’s the idea of India?

IT is happening too often. Parochialism is rearing its ugly head in Mumbai too frequently. The Shiv Sena is threatening to throw out ‘outsiders’ from Mumbai and the rest of Maharashtra.

Self-centred party chief Bal Thackeray has created a ruckus once again, this time dragging into controversy Sachin Tendulkar, the world’s best batsman, who said that he was proud to be a Maharashtrian but that he was Indian first. How should this remark irritate anybody?

I think it is time that Mumbai was made a Union Territory. Industrially and commercially, it is the hub of India’s financial activity. Delhi is a Union Territory because it is the centre of the country’s political activity. Why should Mumbai, which is India’s financial capital, have a different status?

People from various parts of the country have settled in Mumbai making large investments and contributing to business life their labour and entrepreneurship for decades. More money has come from others, not the Maharashtrians. Even population-wise, my impression is that the non-Maharashtrians are a bit up.

If nothing else, the contribution by ‘outsiders’ should shut up the Shiv Sena and its ilk, the Maharashtra Navnirman Sena, that they are a burden on Mumbai or that the jobs in the state should be given to Maharashtrians alone. This pernicious thesis, the son-of-the-soil articulation, was advanced by many states, including Maharashtra, before the Fazl Ali States Reorganisation Commission in 1955. It firmly rejected the various claims and held: “It is the Union of India that is the basis of our nationality.” In its report, the Commission said that “it (Bombay) has acquired its present commanding position by the joint endeavour of the different language groups”.

The proposal that Bombay should be constituted as a separate unit was first mooted by the Dar Commission when the constituent assembly was debating in 1949 the formation of linguistic states. The then ruling Congress party accepted the proposal for the reorganisation of states.

Prime Minister Jawaharlal Nehru took a fancy to the idea of keeping Bombay apart. He pushed it when Maharashtra and Gujarat were agitating against the commission’s recommendation to integrate them into one bilingual state. Nehru presented before the cabinet a proposal to have three units: Maharashtra, Gujarat and the city of Bombay. The then finance minister, C.D. Deshmukh, agreed to the formula in the cabinet. But he changed his stand following the furore in Maharashtra and submitted his resignation. Bombay was made part of Maharashtra.

Nevertheless, the linguistic states have not been of much help to the country. They are increasingly becoming ‘islands of chauvinism’. This was the danger to which Nehru drew attention after new boundaries were drawn on the basis of language. The BJP-run Madhya Pradesh is the latest one to announce that it does not want Bihari labour.

Unfortunately, the manner in which certain administrations have conducted their affairs has partly contributed to the growth of parochial sentiments. The rulers have an eye on elections, not realising that the idea of India gets defeated if people prioritise domicile considerations.

After the formation of states, it was understood that the regional language could be learnt after the recruitment. But now its knowledge has been made compulsory before a person is eligible for the job. This is making state services an exclusive preserve of the majority language group of the state.

The prosperity of some states like Maharashtra, Gujarat, Tamil Nadu and Karnataka has raised questions in UP, Bihar and Orissa, the economically backward areas, that they were not getting their due. Relations between the centre and the states have become strained on this count.

The country’s unity has been uppermost in the mind of policymakers. There have been a few movements here and there, raising the standard of autonomy. But the democratic system with a federal structure, established firmly after the introduction of the constitution in 1950, has taken the wind out of the separatists’ sail. Except for a few militants’ organisations in the northeast, the people’s heart is in the country’s unity.

In the late 1950s, the southern states felt that they were not getting their share. There were agitations and public rallies. Nehru was quick to convenethe National Integration Conference to discuss the various grievances. The conference appointed many committees to give their recommendations on how to bring about national integration.

Before they could submit the reports, China attacked India in 1962. All committees made just one comment: The Chinese invasion had united the entire country. Indeed, this was true because all dissenting voices died in no time.

The country had a jolt in the 1980s. The Akalis in Punjab revolted. The state was in the midst of militancy for about a decade. The Sikhs themselves turned against the militants who had made their life hell. Punjab is today a peaceful state.

The odd voice of linguistic chauvinism, the fallout of the reorganisation of the states in 1955, has been heard in some areas off and on. The real purpose has been to gain votes in the name of the ‘stepmotherly treatment’ meted out to a particular community. It must be admitted that slogans in the name of language or caste has helped.

The only state where parochialism has been constantly fostered by the Shiv Sena is Maharashtra. The group even won an election with the support of the BJP, on the slogan ‘throw out outsiders from Maharashtra’. Bihari labourers were beaten up, something which Raj Thackeray, nephew of Bal Thackeray, repeated after breaking away from the Shiv Sena.

No doubt, the basis of nationality is the Union of India. The states are but the limbs of the union. Yet the limbs must be healthy and strong. Some states have too many poor people concentrated in their territory. Yet what keeps India together is its diversity. By dividing the country into linguistic spheres or by injuring the rights of those who are in a minority, the parochial elements are posing a danger to the very idea of India. It is better that organisations like the Shiv Sena understand this.

Author:Kuldip Nayar
Friday, 20 Nov, 2009
(The writer is a senior journalist based in Delhi.)

Palestine Federation? Why not?

I recall my last conversation with Yasser Arafat in his Ramallah compound a few weeks before his death. It was he who brought up the idea of a threefold federation - Israel, Palestine and Jordan. “And perhaps Lebanon, too. Why not?” Lately, the term “federation” has come into fashion again. Some people believe that it can serve as a kind of compromise between the “two-state solution”, now a worldwide consensus, and the “one-state solution” that is popular in some radical circles. “Federation” sounds like a miracle: There will be both “two states for two peoples” and a single entity. Two in one, one in two.

The word “federation” does not frighten me. On the contrary, I was already using it in this context 52 years ago. On June 2, 1957, my magazine, Haolam Hazeh, published the first detailed plan for an independent Palestinian state that would come into being next to Israel. The West Bank was then under Jordanian and the Gaza Strip under Egyptian occupation. I proposed helping the Palestinians to get rid of the occupiers. According to the plan, the two states, the Israeli and the Palestinian, would then establish a federation. I thought that its proper name should be “the Jordan Union”.

A year later, on Sept. 1, 1958, there appeared a document called “the Hebrew Manifesto”. I am proud of my part in its composition. It was a comprehensive plan for a fundamental change of the State of Israel in all its aspects - a kind of complete overhaul. Among its authors were Nathan Yellin-Mor, the ex-chief of the Stern Group, Boaz Evron, Amos Kenan and several others.

I was responsible for the chapter on Israeli-Arab peace. It proposed that a sovereign Palestinian state would be set up next to Israel, and that the two states would establish a federation, which would gradually assume more and more jurisdiction. On the morrow of the Six-Day War, after which the entire country between the Mediterranean and the Jordan was under the control of the Israeli Army, a new political movement called “Israel-Palestine Federation” called for the immediate creation of a Palestinian state next to Israel. The founders were, more or less, the same people who had composed the “Hebrew Manifesto”.

When this historic opportunity was missed and with the occupation becoming gradually more and more oppressive, I abandoned the use of the term federation. I sensed that it frightened both parties.

It should be remembered that the original partition plan adopted by the UN General Assembly on Nov. 29, 1947, did envision a kind of federation, without using the term. It provided for the establishment of a Jewish state and an Arab state, and a separate entity of Jerusalem, administered by the UN. All these entities were to be parts of an economic union that would cover customs, the currency, railways, post, ports, airports and more. This would have, in practice, amounted to a federation.

Basically, a federation is a pact between different states, which decide to unite on agreed terms. The United States is, theoretically, a voluntary association of states. The states have many rights, but the federation is headed by a single president with immense powers. In practice, this is one state. Russia, too, is officially a federation, but its use of the term has a very different content. Moscow appoints the governors of the provinces, and Vladimir Putin rules the country as a personal fief. When Chechnya tried to secede from the “Russian Federation”, it was crushed even more brutally than the confederacy in the American Civil War.

Germany defines itself as a “federal republic (”Bundesrepublik”). It is composed of “L?nder” that enjoy a large measure of autonomy. Switzerland calls itself a confederation in French and Italian (”Eidgenossenschaft” or “Oath Association” in German) and its cantons enjoy their autonomy. But it is also a very unified country.

It is generally supposed that a “federation” is a tighter association, while a “confederacy” is a looser one. But in reality, these differences are very blurred. It seems that Americans and Russians, Germans and Swiss, identify themselves first of all with their united state, not with their own particular province. (Except for the Bavarians, of course.)

THE new Europe is for all practical purposes a confederacy, but its founders did not name it thus. They chose the less definite “European Union”. Why? Perhaps they thought that terms like “federation” and “confederacy” were outdated. Perhaps they considered such terms too binding.

It makes no sense, therefore, to discuss the idea of an Israeli-Palestinian “federation” in general terms, without defining right from the beginning what is meant by this. I recently saw a plan for a federation here in which every person would have the right to settle anywhere in either state while holding the citizenship of one of them. I can hardly imagine that many Israelis or Palestinians would embrace that. The Israelis would be afraid that the Arabs would soon constitute the majority within Israel, and the Palestinians would worry that Israeli settlers would take possession of every hilltop between the sea and the Jordan.

In any discussion of federation, the matter of immigration looms large as an ominous bone of contention. Would millions of Palestinian refugees be allowed to return to Israeli territory? Would millions of Jewish immigrants be allowed to submerge the State of Palestine? The same is true for the matter of residence. Could a citizen of Palestine settle in Haifa? Each one of us who considers the idea of federation must decide what he or she wants. In practice, a federation can come about only on the basis of a free agreement between the two parties. This means that it can be realized only if both - Israelis and Palestinians - consider it as advantageous to themselves and compatible with their national aspirations. In my opinion, a practical way to realize the idea could look like this:

Stage 1: A sovereign Palestinian state must come into being. The occupation must end and Israel must withdraw to the Green Line (with possible mutually agreed swaps of territory.) That goes for Jerusalem, too.

Stage 2: The two states establish a pattern of fair relations between them and get used to living side by side. There will be a need for real steps toward reconciliation and the healing of the wounds of the past.

Stage 3: The two states start negotiations for the establishment of joint institutions. For example: the opening of the border between them for the free movement of people and goods, an economic union, a joint currency, a customs envelope, the use of ports and airports, coordination of foreign relations, and so on. There will be no automatic right for citizens of one state to settle in the other. Each state will decide for itself on its immigration policy. The two parties can jointly decide whether to invite Jordan as a third partner to the proposed treaty. Such a negotiation can succeed only if the population in each of the partner states is convinced that the partnership will bring it positive benefits. Since Israel is the stronger economically and technologically, it must be ready to make generous proposals.

Stage 4: The more trust between the parties develops, the easier it will be to deepen the partnership and to widen the powers of the joint institutions.

Perhaps, at this stage, conditions may be ripe for the founding of a wider association of the entire region, on the lines of the European Union. Such an association may include the Arab states, Israel, Turkey and Iran. This is a vision for the future, and it can be realized. To paraphrase Barack Obama’s slogan, even if it has lost some of its luster: Yes, we can!

Author: Uri Avnery
(Source: Arab News. Uri Avnery can be contacted at avnery@actcom.co.il )

Historic Need for Magnanimity for Averting Evil Burden in Future Bangladesh

1. There is no favorable appreciation by the right minded people about the 19th November verdict of the Supreme Court in the 15th August (1975) bloodletting case except among the diehards of the Awami League Government party concerned for the fact that the simple case of army mutiny had been adjudged in the ‘short order’ as the simple ‘murder’ of the President of the country, Sheikh Mujib, by summarily rejecting the Appeal, not seen to be real justice done, obviously under the present political government with partisan stake.
2. The Court heard the Leave to Appeal accepted by another Bench about two years ago during non-political Care Taker Government wherein there were five valid law points: the question of jurisdiction of the previous one judge Bench, scope of the civil court to try military men, if the incident involving some bloodlettings were of simple murder or as adjunct of mutiny, whether there was any conspiracy to kill or not, and delay in filing the case after 21 years.
3. Of the five points, the crucial one was that if the incident of bloodletting was the result of army mutiny or nothing of mutiny but just only to kill the President, the Appeal Bench took the whole matter as a conspiracy to kill the President. The judges though decided that the army men came to kill the President and they did kill, and there was no motive of any mutiny for the change of the government, many evidences left out of consideration that clearly showed that the incident was a clear case of mutiny. One was and as mentioned by the previous one judge Bench of the High Court in April 2001, on which the whole appeal had banked on for 12 convicted to death sentence, that the then Army Chief amazingly made a ‘witness’ whereas he must have been an accused in the case .In an interview published in the Dhaka daily, The Independent on the 26th March 2002, the same judge is reported to have remarked, ‘After one hundred years people will say that it was not a judgment at all’. The other important items left out of consideration were that the Army, Navy and Air Force all gave allegiance to the mutiny and the change of Government formed immediately after the coup. So also all other Government organs and units of administration of the State gave allegiance to the post mutiny government and thus provided clear nod to the successful coup. The Chief Justice of Bangladesh offered oath of office to the post coup Government of Khondoker Moustaque as the President. All these points kept unresolved that showed that the judges were not only unfairly biased but also were eagerly ready to sign on the dotted lines. That they had enough of benefit of doubts in favor of the accused were all given damn to. In other words, the judgment was clearly a sort of miscarriage of justice. The miscarriage of justice in the case was also clearly advanced by one retired Chief Justice in an interview with the BBC Bengali Service on the 26th March 2001; similar comments were also made by another retired Supreme Court Justice in a public forum discussion session held at the National Press Club on the 15th August 2008 and news published in many Dhaka dailies on the 16th August 2008 (Daily Nayadiganta, Daily Amardesh, etc.).
4. The five member bench judges of the Supreme Court Appeal Division, no doubt, made their judicial verdict as they considered fit not only out of their judicial mind but also quite visibly in the near siege fearful environment of the Supreme Court Campus by not only the law enforcing agencies but also by huge angry party workers, even including the law officers showing their fists. The judges were common human beings as they were all subjected to pressures and intimidation all throughout the 29 days hearing of the appeal by the Awami League party cadres of the most militant kind. Being employees of the government for life and living, perks and favors and wholly dependent on subsistence from the pay and allowances paid from the treasury, how could they make verdict different from the one to please the top boss both of ruling political party and of the government of the country? The judges knew well ahead what the boss, in particular, in the Government wished for verdict in the case and so they possibly complied with safely, despite unfortunately creating problems of legitimacy and continuity of the State for 34 years since August 1975 that legally came up with the verdict of simple ‘killing’ and not ‘mutiny’ passed by the honorable Bench members. It’s pity that they are hardly like the independent judiciary judges of the UK, for example, in terms of all forms of social and economic security.
5. Death penalty or capital punishment has already been abolished in 94 countries as
of June 2009, and there are many international humanitarian organizations like the Amnesty International, Human Rights Watch, World Coalition Against the Death penalty, European Union, etc have been working for abolition of capital punishment in the rest of all countries.
6. Although Bangladesh has the penalty in the age old colonial British Cr.P.C. that provides here still today whereas, in Britain that inhuman penalty has already been abolished long ago. By immoral use of the same Cr.P.C. the colonial rulers sentenced many to death sentences, say for example, Khudiram who afterwards in free India being praised as the martyr. Bangladesh being a Muslim country should have had for the Muslims the sort of penalty provided in the holy Quran: alternatives to death penalty either Qisas or forgiveness of the victim or victim’s family members or Diyah means compensation money payable by the accused to the members of the victim’s family.
7. Even if one may not see eye to eye of the miscarriage of justice as advanced here in the case so far ended, commutation of death sentence at the lawful Review stage still left may well be done.
8. There is a serious anti feeling about the verdict in the society and outside since the very announcement of the verdict on the 19th November that may well be eased greatly by commuting the death sentence now. The Amnesty’s appeal of the 20th November may well be taken as a good ground for the commutation. Otherwise, it will certainly continue not only to hurt the future social scenario of the country but also the political divide not for any good but for many evils to come.
9. It is, as such, I feel as a senior citizen very much incumbent on the present government (the President and the Prime Minister) to take a magnanimous look into the matter. Or else, they would harm the country beyond repair and face all risks of political divide and reprisal, I am afraid, in history.

Author: M.T. Hussain