By Shameran Abed

The grounds for the proclamation of emergency in January may well have been prepared by the caretaker government of Iajuddin Ahmed through its failure to level the electoral playing field in the lead-up to the now-stalled general elections to the ninth Jatiya Sangsad. However, the actions and events that have culminated in the current political and constitutional crisis began well before the formation of the Iajuddin government, and before even the return to power in 2001 of the Bangladesh Nationalist Party-led alliance, the dubious actions of which while in power and from behind the scenes during the Iajuddin regime led to the withdrawal of the Awami League from the elections in January. The root causes of the present crisis can actually be traced back to the ill-conceived thirteenth amendment to the constitution, which was brought about 11 years ago to break the political deadlock of that time.
   The thirteenth amendment inserted the provision of caretaker government in our constitution to act as a half-way house between elected governments, an undemocratic and unwanted measure that was necessary, it was thought at the time, to hold peaceful and credible general elections and to ensure smooth transfer of power. The need for it arose when the BNP, which had just returned to power through farcical general elections that were uncontested by the other major parties, understood that it had lost credibility and popularity to the extent that it could no longer carry on in government and realised that the implementation of the caretaker concept, an idea which had support among the other major parties, was the only face-saving exit route left for it to take. The Awami League, which had stuck rigidly to its stance of not contesting in any elections conducted by a BNP government because of legitimate concerns about the credibility of such elections, had left the BNP with little choice other than to bring in an interim government, fashioned after the government of Justice Shahabuddin Ahmed that had conducted successful elections in 1991, to hold participatory and credible elections.
   The success of the caretaker experiment in 1996 and 2001, while playing a crucial role in maintaining democratic continuity, at least as far as elections were concerned, did, however, shift focus away from the type of reforms that ought to have been brought about in the first place, instead of the implementation of the innovative yet unsustainable caretaker concept. The apprehensions of the opposition parties – that elections held under a political government would not be free and fair – were neither unwarranted nor unreasonable given our track record up until that time. However, addressing these concerns did not require a major amendment to the constitution to allow the formation of apolitical governments only to hold general elections.
   A far more pragmatic and sustainable approach would have been to separate the Election Commission from the Prime Minister’s Office and to give it total financial and administrative autonomy in order for it to work independently and impartially to hold credible and acceptable elections. Independent election commissions conduct perfectly acceptable elections in other countries, including in neighbouring India. Hence, there is absolutely no reason to doubt that such an approach could work in our country, even with the mutual suspicion and animosity between our two major political parties, the Awami League and the BNP.
   However, due to the success of the caretaker system, the demand for the independence of the Election Commission was put on the backburner. Whereas civil society, pressure groups and the media should have continued to demand for an independent Election Commission that would be able to work without interference from the executive as a final solution to our election-related problems, everyone celebrated the caretaker intervention as the most appropriate and context-specific solution and accepted the undemocratic nature of such governments because of the constitutionally-limited nature of their tenure, mandate and authority.
   Also, allowing the Election Commission to work independently and to have financial and administrative autonomy was, after all, not in the interests of the political governments. Therefore, while in power, neither the Awami League nor the BNP felt any need to build the capacity of the commission or to give it necessary authority to hold proper elections. Instead, the parties concentrated their efforts on manipulating the caretaker process for electoral gains. The constitution had mandated that the chief executive of a caretaker government would be the last retired chief justice of the country. Hence, political governments began to give judicial appointments and promotions with the view to ensuring that their preferred candidate would be the last retired chief justice during the handover of power to a caretaker government. The Awami League government did so, albeit not as brazenly as the BNP-led alliance government that followed it, prior to handing over power to the caretaker government of Justice Latifur Rahman. So confident was the Awami League that Justice Rahman would actively oversee its return to government that it felt ‘betrayed’ by him when the BNP-led alliance came to power with a two-thirds majority in parliament.
   For its part, the BNP-led alliance government went a step further. It raised the retirement age of High Court judges by two years to ensure that their preferred candidate, Justice KM Hasan, would remain as the last retired chief justice at the end of its term. The government insisted that the decision to increase the retirement age had nothing whatsoever to do with who would become the next chief adviser but was based on recommendations made by a former chief justice, who had suggested that unless the retirement age was increased, a large number of top judges would retire within a very short time and leave a vacuum in the higher judiciary. Certain merits to that argument notwithstanding, the common perception that the retirement age of judges was increased to pave the way for Justice Hasan, in addition to his prior close association with the BNP, was enough to convince the Awami League that the BNP-led alliance was out to rig the polls. As a result, the Awami League decided that it would not participate in elections held under a caretaker administration led by Justice Hasan.
   The provision that the last retired chief justice is to be the first choice to head a caretaker government was included in the constitution out of respect for the position of chief justice, and in the belief that a person who had filled that position could be trusted to discharge his duties neutrally, whatever his political preferences may be. The provision was not included in the hope that the last retired chief justice would be politically neutral. That would be absurd, given that the chief adviser himself is a member of the electorate and is not precluded from exercising his franchise at the polls. Therefore, it was not the political neutrality of chief justices but a belief in their ability to act with neutrality in discharging their functions as chief adviser that the constitution held supreme.
   Our political parties, however, saw things differently. That they tried to pre-select chief advisers clearly suggests that not only did the parties not believe that any person who had served as the chief justice would act neutrally as chief adviser to a caretaker government, but more importantly that they actually felt that they could handpick chief advisers who would actively aid in their attempts to gain unfair electoral advantage over their opponents. Having successfully politicised the judiciary over many years, not to mention the other vital institutions of the state, it is no surprise that the political parties felt so confident that the judges who had received their patronage would do their bidding come election time.
   However, this premise was largely disproved by Justice Latifur Rahman, the Awami League choice as chief adviser in 2001, who like Justice Shahabuddin Ahmed and Justice Habibur Rahman before him, proved his neutrality as chief adviser through holding general elections that were credible and acceptable to the electorate. Also, though we shall never know, those close to Justice Hasan have insisted that as a man of integrity, the retired judge would have acted with neutrally in discharging his duties, whatever his past political associations may have been. Yet, the political parties remained convinced that caretaker governments could be manipulated by placing the ‘right’ person at their helm. Thus all the trouble by the BNP to make Justice Hasan the caretaker chief, and thus the outright rejection by the Awami League of a possible caretaker government under Justice Hasan even before one was formed, actions by both parties that ultimately undermined not only the caretaker process but also the country’s higher judiciary.
   When the KM Hasan saga ended late October through his own decision to not accept the role of chief adviser following unprecedented scenes of violence and bloodshed on the streets of Dhaka, the country was thrown into a new political dilemma. The contradicting interpretations of the constitution by our so-called constitutional experts meant that everyone was unsure as to who was next in line to be chief adviser. The ensuing confusion gave the BNP-led alliance a second crack at placing its candidate at the helm of the caretaker administration. Iajuddin Ahmed, the teacher-turned-president of the republic, who was up until then a political non-entity, was given the go-ahead by the BNP, which had elected him to office, to form the caretaker administration. Buoyed by the faith shown in him by his benefactors, Iajuddin was only too eager to oblige, quickly and arbitrarily exhausting the remaining provisions in the constitution without any sincere effort to find a person acceptable to all sides. He went directly to article 58C (6) of the constitution, which holds that as a last resort and having exhausted all the other options the ‘President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.’
   Once in power and having put together his motley crew of advisers – this he did not by selecting people who are perceivably party neutral but by picking from lists provided to him by the major political parties – Iajuddin set out to prove what many had already known about him: that he was there to loyally serve the party that had put him in office, not to create a level playing field for credible general elections to the ninth parliament. Such was the extent of his loyalty that even after four of his top advisers resigned from the government in protest at his actions he hurriedly replaced them and carried on in much the same vein as before. It came as no surprise therefore, that the Awami League-led alliance, having failed to realise its demands for a thorough review and correction of the voters’ roll, decided to withdraw from contesting in the elections.
   The withdrawal of the Awami League from the elections was the final nail in the coffin of the Iajuddin regime and paved the way for the army-induced proclamation of emergency and the formation of a military-driven government that has been in power since and plans to remain for many more months. While our constitution does allow for the proclamation of emergency by the president under article 141A, there remains considerable controversy regarding the maximum duration of an emergency period allowed by the constitution. Also, even though the constitution does not limit the tenure of a caretaker government under article 58, the tenure of a caretaker government is not meant to exceed 90 days, given that the primary constitutional responsibility of a caretaker government is to aid the Election Commission in the holding of parliamentary elections and article 123 states that general elections must be conducted by the commission within 90 days of the dissolution of a parliament. Also, even though the promoters of this government can claim that there is ambiguity regarding the maximum duration of emergency rule and the tenure of a ‘caretaker government’, there is no ambiguity whatsoever in the constitutionally restricted role of the caretaker government, which is to run the day-to-day affairs of the state and to provide all necessary help to the Election Commission. On this count at least, if not on the other two as well, the current military-driven government continues in violation of our constitution.
   This government can, of course, claim that it had from its very onset made it absolutely clear that it would not behave like other caretaker governments, i.e. a constitutional caretaker government, but would take on the much greater responsibility of ‘cleaning up’ the political process before holding parliamentary elections. Yet, what mandate an unelected and military-driven government has for pursuing such a tall agenda and for delaying democratic elections was never made clear to the people of this country. Moreover, while the attempts to bring about necessary administrative and electoral reforms, for which also this government does not have any constitutional or electoral mandate but can claim a high degree of popular support, can be understood and even condoned, its overt and covert attempts to coercively restructure the political order through the use of its anti-corruption drive are directly contrary to democratic principles. Whatever it may claim, one wonders how an unelected government that has banned all political activity, choked all democratic space, behaved thus far like an authoritarian regime and which clearly does not feel any accountability either to the constitution or to the people hope to deliver democracy to our country?
   The sooner the powers-that-be realise that democracy can never be delivered by a military-driven government through the banning of politics and the suspension of rights the better it will be for us all. Democracy can only be strengthened by the people when their democratic rights are ensured. The people of this country, therefore, need greater freedom and more rights for democracy to take shape, not a diminution of their rights and freedoms by an unelected government.
   That makes the transition to a democratic dispensation an absolute imperative at this time. However, no one in this country wishes for a mere return to the unconstructive and undemocratic politics that has been practised by our major political parties, both when in power and when in opposition. This government, therefore, needs to understand that its opportunity to add value to the political process lies not in its ability to coercively restructure the political order as well as the polity in line with its wishes, but in its ability to bring about political and electoral reforms through making amendments to electoral laws and rules. If this government is serious about bringing qualitative changes to electoral politics, it should begin by making the Election Commission completely independent and by giving it full financial and administrative autonomy. It must also increase the capacity of the commission to be able to detect violations of electoral laws and provide it with the requisite authority to take punitive action against those who do not adhere to those laws.
   Moreover, while this government cannot possibly hope to make the political parties more democratic in the real sense through forcing ‘reforms’ upon them, it can achieve that objective through introducing laws that would require the political parties to behave more democratically, both within the party and outside. For example, the government could make the registration of political parties mandatory for them to be able to contest in elections, and set down certain perpetual conditions that would then have to be fulfilled by the parties for them to remain registered with the Election Commission. These conditions may include regular elections to all levels of leadership within the parties and limiting the tenure of the party leaders. The government can also ensure through laws that the parties become much more accountable and transparent with regard to the raising and spending of funds, and should seriously consider public funding of political parties, which exists in many democracies around the world. These steps, which will undoubtedly aid the Election Commission in the holding of free and fair elections, are likely to have a positive and lasting impact on the electoral process and on the nature of politics.
   However, any efforts to strengthen and consolidate democracy can only take effect once democracy itself is restored, political activity allowed and the people’s fundamental rights returned in full. Hence, what is most important right now is for this military-driven government to shift its focus to the holding of general elections as early as possible. However, it appears as though the government needs reminding that the current phase in our politics is nothing more than an extended transition from one elected government to the next, and while it can attempt to bring about electoral reforms in the meantime to make the electoral process more fair, its primary responsibility remains the holding of elections in order to bring in an elected government as expeditiously as possible. Therefore, instead of wasting its time and that of the people on national ID cards and other such ventures that have no utility at all with regard to parliamentary elections and instead of making the Election Commission come up with farcical roadmaps to stall elections till the end of next year, the government should devote its energies to help the commission to prepare as quickly as possible a credible voters’ roll based on which participatory and acceptable elections can be held within the shortest possible time.
   If it succeeds in doing so and in handing back power to a government elected by the people, it will not only put the country back on the democratic track but will also set a unique example of an unelected military-driven interim government voluntarily handing power back to an elected regime after bringing about necessary electoral reforms. However, if it does not hold elections expeditiously but tries instead to perpetuate itself in power for as long as possible through the weakening of the political parties and the asphyxiation of democratic space in society, it will only prove what many are now beginning to fear: that this government, like the authoritarian regimes of the past, is interested not in leading a process of transition but in grabbing state power for itself. We now wait to see if this government has the courage to take the road less travelled.
   At the end of the day, the caretaker concept itself needs to be re-examined, for we cannot ever hope to have democracy or democratic continuity for as long as we rely on an undemocratic interim government to conduct elections and leave the Election Commission powerless and ineffective. Also, our recent experience with ‘caretaker’ government only proves how successful the political parties have been in undermining the caretaker process. Therefore, though it may be a bitter pill to swallow, the challenge before the next parliament will be to scrap the caretaker system, however innovative it was once thought to have been, and to give the requisite authority and powers to the Election Commission. In the long run, that is the only solution that can guarantee the holding of proper participatory elections and peaceful transitions of power from one elected government to the next.
   
   Shameran Abed is assistant editor, New Age