CHT TREATY AND ITS CONSTITUTIONAL COMPLEXITY


News from Bangladesh
19 January, 1998


Does CHT Treaty violate our Constitution? Only our Judiciary can answer this question. However, the concern of CONSTITUTIONAL-COMPLEXITY provoked by CHT Treaty can be discussed, more rationally, in public media by examining the question: The issue that CHT Treaty addresses: Is it LEGAL or POLITICAL?

Many objections, some highly alarming and emotional, have been levelled against CHT Treaty; which ones are real is difficult to assess as their importance is changing continually. The one that is being debated vigorously and bitterly at present is CONSTITUTIONAL: CHT Treaty violates our Constitution.

In its 18-points OBJECTION BULLETIN, BNP has quoted Constitutional Laws directly in six instances to substantiate its claims. The government, in turn, has rebutted them alluring to the same Constitution. Many of our distinguished personalities, individually or through professional organizations, have given their opinions on this so-called CONSTITUTIONAL COMPLEXITY. These opinions, assumed to be non-partisan, are mixed and often highly contradictory. We shall be truly deceived if we naively accept this assumption of non-partisanship.

The PUBLIC OPINION- the Supreme Command- is thus diffused and confused. The PUBLIC- the Sovereign Commander- is drawn into a political DEBATE which is illogical and illusive on the one hand and vicious and vindictive on the other.

To substantiate my CONTENTION, I shall first recall the memories and experiences of our INDEPENDENCE.

1971. This calender Year is engraved in our hearts for two reasons: one is joy and pride and the other is sorrow and hate. This is the Year we achieved our Independence in exchange for a sea our blood.

We cherish to remember two glorious days of this historic Year: 26th March and 16th December. The other days of the Year we wish to forget. Unfortunately, the current political circumstances dictate us to recollect and analyze our experiences of those days.

We did not want Independence; we demanded AUTONOMY. The conditions of our Autonomy were the SIX-POINTS of Pakistan Awami League (PAL). To refurbish our memory, I shall summarise the six-points:

1. Pakistan shall be a FEDERATION OF STATES with a SOVEREIGN Parliament.

2. CONSTITUENT STATES (CSs) shall have the absolute powers in all STATE AFFAIRS except Defence and Foreign Policy which shall be jurisdictions of the central government.

3. To stop flight of capital from East Pakistan to West, there shall be TWO easily exchangeable CURRENCIES for two wings or some other guarantees.

4. CSs shall have the absolute authority on TAX AND CUSTOM DUTY policies. The expenditures of Central government shall be met by CSs.

5. CSs shall have absolute powers on FOREIGN TRADE: maintain separate trade accounts, control foreign exchanges earned, send trade delegation, conclude trade agreements etc.

6. CSs shall have the power to organize PARA-MILITARY or REGIONAL ARMY to protect regional integrity and constitution.

General elections to the Pakistan National Assembly (PNA) took place in the second half of 1969. PAL, led by Sheik Mujibur Rahman, emerged as the absolute Majority Party (it won all except one Seats in East Pakistan but none in West Pakistan) thus became entitled to form the Government. Pakistan Peoples' Party, led by Zulfiqur Ali Bhutto, appeared as the second largest party in the PNA, and thus became the Official Opposition.

Bengalese of East Pakistan did not stop at creating the golden opportunity for Sheik Mujib to become the Prime Minister of Pakistan; they bound him in eternal gratitude by making him BANGABANDHU.

President and Army Chief-of-Staff General Yahya Khan summoned PNA on 3rd of March in 1971 in Dhaka. Bhutto refused to participate the Session. The President and Bhutto came to Dhaka and held discussion with Bangabandhu to mitigate the political differences between PNA and PPP. And with this, the DIM LIGHT OF DEMOCRACY that people of Pakistan saw in her political sky, engulfing them in intense political darkness and hopelessness.

In democracy, PEOPLE are the sovereign authority of the state. To institutionalize democracy, therefore, people's POLITICAL INSTITUTION must be created and made the FOUNTAIN of all state powers. In 1969, the people of Pakistan made that magnificent effort; they elected their representatives to their sovereign institution, PNA. To their disdain and dismay, their elected representatives destroyed this opportunity by trying to negotiate their differences outside the people's sovereign institution.

These undemocratic political processes are destined to failure. In fact, they encourage the undemocratic, opportunist and power-hungry forces in the society to destroy democracy.

Bangabandhu said, "SIX-POINTS are the demands of the people; I am not authorized to negotiate on these points. However, if any politically just objections are raised (in PNA), even by one person, we will accept them".

The Bhutto-Yahya Gang was not composed of people of just talks. The matter-of-fact, they had an evil design behind the talk: They were buying time to transfer more arms and army personnel to East Pakistan. Once that objective was achieved, the undemocratic talk abruptly ended. Pakistan army attacked on our unarmed people and we bought our Independence by a sea of blood of our fellow Bengalese.

The question to be pondered: Were the actions of Bhutto-Yahya gang ILLEGAL or UNJUST? The answer depends upon the perspective from which we examine the question. If we take a CONSTITUTIONAL viewpoint, then all their political and military actions were legal and appropriate: The SIX-POINTS were not only contrary to Pakistan constitution, they truly meant to rewrite it.

But, from a DEMOCRATIC viewpoint, their actions were absolutely UNJUST; ignoble and unpardonable crimes against the people. This is viewpoint PAL took, which we supported, when demands for autonomy were made based on SIX-POINTS.

This is the story of facts behind our Independence. The story carries an enormously important POLITICAL LESSON for peoples all over the world: A state or an empire, no matter however mighty, shall disintegrate if the more powerful group(s) violate democratic rights of the less powerful group(s): Ours is just one of innumerable stories in the history of human civilization. To resolve the political controversy created by the CHT Treaty, we must refresh our memories of the political lesson that we learnt by shedding our blood.

Does CHT Treaty violate our Constitution? Instead of involving ourselves in a needless and meaningless exercise, let's first determine whether this is a RIGHT question to ask. So we inquire: The issue that CHT Treaty addresses: Is it LEGAL or POLITICAL?

A CONSTITUTION is the FUNDAMENTAL, POLITICAL and SUPREME document of a STATE embodying laws guiding the management of the state affairs. It is FUNDAMENTAL because all other laws must conform to the Constitution in terms of how they are made and in terms of their substance. It is POLITICAL, because the idea and the practice have originated through political process. Its laws are SUPREME, because these laws are composed and enacted by the representatives of the SOVEREIGN authority of the state- the people. The vital difference between Constitutional and ordinary laws is: The former are orchestrated by the people's representatives but the latter are formulated by professionals. Once the Constitution is legislated by the people's representatives, the authority and the responsibility of its interpretation, if controversy arises, lie with the JUDICIARY.

If CHT Treaty presents a LEGAL issue, then we must conclude that the dispute shall be settled in the court. "The Treaty should be sent to the Supreme Court", as JP Chairman General Ershad has ably suggested. All political discussions on this issue, in and out of JS, are useless. In this regards, one question may be asked: If the existing Constitution safeguards all that are rightful to the Tribal people, why then have they taken arms in their hands? If we believe that their rights are well-protected by our Constitution and no injustices have been done to them, then they are definitely Indian infiltrators and miscreants, as we were called in 1971.

If the issue is POLITICAL, then the question of CONSTITUTIONAL- COMPLEXITY is irrelevant and politically vindicative. A political issue can not be resolved in the court for two reasons. First, a political issue must be debated by the people and their representatives, not by professionals. Second, the court is not SOVEREIGN. Thus, all political issues may be debated in any forum outside PUBLIC INSTITUTIONS, but if they are to be enacted into laws, they must be debated in the PEOPLE'S SOVEREIGN INSTITUTION- our JS?

Logically then, the analysis leads to the question: Does the CHT Treaty address a POLITICAL issue? The answer hinges upon the nature of political STATUS that we are prepared to concede to our tribal people of CHT in the framework of our STATE. The STATE is a very special kind of political institution- the SOVEREIGN BODY POLITIC- recognized internationally. It has three vital physical elements: (i) identified people, (ii) defined (iii) and a government -elected or non-elected. The founding idea of modern states is NATION. The TASK FORCE ON CANADIAN UNITY (1979) defines:

A NATION is a community of persons bound together by a sense of solidarity and wishing to perpetuate this solidarity through some political means. Contributing to this solidarity are common "objective" factors such as history, territory, race, ethnicity. religion and customs and common "subjective" factors such as the consciousness of distinct identity, an awareness of common interests and a subsequent willingness to live together.

NATION(S) instituting a state determine its nature and variety and describe in the CONSTITUTION. In a one NATION-state, there is little complexity about who shall exercise its POWERS and how. But if more than one nation join together to form a state, the CONSTITUTION sets rules on how representatives of different nations share its POWERS. These states are called: United States, Union of Sovereign Republics etc.

If we accord our tribal people the STATUS of a nation- in the framework of our STATE- CHT Treaty certainly then addresses a very important political issue. CONSTITUTIONAL-COMPLEXITY thus becomes an irrelevant and politically vindictive nonsense. Peoples' Representatives must debate the Treaty in JS while all other PPs and concerned citizens may debate it outside JS. And the CONSTITUTION must be amended if required.

We all are missing the issue that is genuinely CONSTITUTIONAL! This is truly IRONIC in this whole business of CONSTITUTIONAL-COMPLEXITY.

BNP has made some serious and undemocratic DEMANDS. They first demanded a RTC on CHT Treaty outside JS; and now made the revocation of the Treaty as a condition for participating JS. Their point is: The Treaty, highly pernicious to the country's interests, was signed without consulting them. It will now be ratified in JS; their participation means endorsement of this "illegal and unconstitutional" Treaty.

The source of BNP's political strength and its public acceptability is our CONSTITUTION- it is our major ELECTED OPPOSITION party. Here is the FALLACY that deceives us all: By the Constitution, the Government shall exercise the EXECUTIVE powers of the STATE. But all its policies and actions must be debated in JS and passed by simple majority votes, except for Constitutional laws.

What is CONSTITUTIONAL basis of BNP's demands: RTC outside JS and condition imposed on her participation in JS? All non-elected PPs can demand for an RTC and to annul the Treaty; but BNP can not. Reasons are: Non-elected PPs have no access to JS; they are making this demand as ORGANIZED CITIZENS of the state which is legal, democratic and rightful. BNP is the elected opposition; it can not make this demand, because it is making the demand by the virtue of being ELECTED. It must return to JS and raise its voice there; this is its CONSTITUTIONAL OBLIGATION.

By deriving political authority and public acceptability from the CONSTITUTION, BNP is trying to raise a CONSTITUTIONAL issue-which appears to be irrelevant and politically vindicative on the final analysis- by violating the CONSTITUTION.

Our ACQUIESCENCE to BNP's demands can mean any of the following: (i) We have accepted the irrational behaviour of PPs as a norm of politics in our society; (ii) We have submitted to BNP's muscle power or (iii) We are confused.

A curious and critical reader might argue: Our STATUS in Pakistan is not comparable to that of the tribal people of CHT. I agree absolutely. We need not compare. The demands for AUTONOMY that these people have made to us are nothing compared to ours in 1971.

Then I must also insist: The injustices and tragedies we were subjected to in Pakistan- that instigated us to make SIX-POINTS demands- are nothing compared to what the tribal people of CHT have been going through.




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