Reforms are necessary to rid election of rigging which is a legacy of martial law regimes and a temptation for those who take election only as a means to acquire state power to establish a state based on their narrow ideology.

Elections since 1975 have been rigged by the military usurpers to win plebiscitary legitimacy and two-thirds majority in the House or large majority with a ‘dependent opposition’ so that they could bend the legislature to their wishes, including validation of the amendment of the Constitution introduced by the martial law authority which changed the fundamental character of the State. The Caretaker Government was instituted in 1996 to cure the administration and the electoral system of the deficiencies caused by the serial rigging. Further reforms aim at removing the weaknesses and enhancing the neutrality of election as well as the legitimacy of government.

The objective of Jamat-i-Islam is to establish a state based on sharia as interpreted by its ideologue Mawdudi. JI fills in the ideological void left by those who amended the Constitution to make Islam the religion of the state and the source of legitimacy of all laws and policies of the government. The alliance of BNP and JI is based on this common platform which appeals to religious bigotry. JI takes democracy as an ‘entry strategy’ to occupy state power with a view to establishing sharia. Its commitment to democracy is only an expedient and convenient transitory measure for the greater goal of theocracy.

The High Court had ruled that the amendment of the Constitution by the martial law authority is ultra-vires. The verdict has been stayed by the Appellate Division pending disposal of the appeal by the Government. The decision of the Appellate Division will determine whether the state becomes a secular democracy as at the foundation or remains an imperfect religion based state as it was made by the promulgation of martial law.

Neutral caretaker government is an established democratic convention in Bangladesh, which has been embodied in the Constitution.

The Non-party Caretaker Government has a specific mandate: assist the Election Commission to ensure a free and fair election; carry on the routine function of a caretaker administration; and desist from policy decisions unless required for the routine functions. In the mature and well-established democracies, the government becomes an interim caretaker government with the dissolution of parliament (Europe, North America, & India). Election campaign commences only after dissolution of parliament. The model of the Caretaker Government is identical; the constitutional specifications aim at eliminating the abuse of office by the incumbent government.

There are some features of the system of caretaker government that have been found to be faulty and reforms are needed in the usual course. They have gained added significance because of ill-motivated measures and actions set in motion by the present regime.

Direct control of the armed services by the President militates against parliamentary system of government that is followed in our country. When the caretaker government comes into being the vesting of the defense portfolio with the President causes too much concentration of power in his hands, when he is not accountable at all and creates an unworkable diarchy. There is also no justification for vesting in the President the charge of defense. The President cannot deploy the forces in a war for which the Assembly which has been just dissolved has to be called. Nor can he deploy the defence forces for internal duty ¬ including that related to election without demand from the Chief Adviser who is solely responsible for the governance of the country.

Exclusion of the armed forces from the mandate of the Caretaker Government has established a cumbersome diarchy and confers enormous power on the President. The direct control over the defense forces may be abused by an unscrupulous or weak President to advance private or partisan interest. The diarchy should be abolished and the administration of the defense forces vested in the Caretaker Government as during the term of a cabinet in office.

The retired Chief Justice and other retired Justices of the Appellate Division do not necessarily make the best Chief Adviser; besides, the Government may undermine the Supreme Court in order to get a sympathetic Chief Adviser at the next election.

The last retired Chief Justice of the Supreme Court is the first choice for the office of the Chief Adviser. If he cannot take the office, the search is extended to the retired Chief Justices and then to the retired Judges of the Appellate Division in a reverse chronological order. If that also fails, the President consults the major political parties to choose a citizen acceptable to them. If all the options fail, the President assumes the office himself i.e. appoints himself the Chief Adviser.

The retired Chief Justices or the retired Judges of the Appellate Division may not be the best and the most acceptable choice for the office of the Chief Adviser; moreover, reservation of the position for them tempts the executive to choose Judges with an eye on the election and play with the rules which undermines the highest judicial institution.

The President appoints the Caretaker Government and holds it to account. It is an anomaly that the President can also appoint himself the Chief Adviser which concentrates in the same person all the executive and military powers and destroys accountability. The existing arrangement is modeled on the executive President sans institutional control and accountability.

The most critical qualification of the Caretaker Administration as a collective body is neutrality which is manifest and accepted by the political parties. The Chief Adviser and any other Adviser cease to hold office instantaneously if they are disqualified for these offices. This directs that utmost care be taken to appoint the Chief Adviser and the Advisers.

The Government amended the Constitution to raise the superannuation age of the Judges of the Supreme Court from sixty-five to sixty-seven while the retirement age of the statutory offices (62 years) and all other services (57 years) remained unchanged. The Government justifies that this would help retain experienced judges in the Supreme Court which faces an acute shortage. The argument would be credible if the superannuation age were raised for the statutory offices and the civil service which face no less acute shortage.

The neutrality of Justice K. M. Hasan is suspect. Justice K. M. Hasan was elevated (or appointed) Chief Justice in preference to others who had joined the Appellate Division earlier. The Government justified that High Court Judges junior to him had been elevated to the Appellate Division before he was. Further, his appointment as Chief Justice restored his seniority and remedied the injustice done to him. These are deviations from the tradition of elevating the senior-most Appellate Judge to the office of Chief Justice. The Constitution does not require the President to consult the Prime Minister for appointment of the Chief Justice but he follows the traditional principle of seniority. In this case, the President deviated from the principle; whether he acted on independent judgment or on advice of the Government is shrouded in opacity.

The amendments make sure that Justice K. M. Hasan remains the last retired Chief Justice at the next election in 1907 (or late 1906). Justice Hasan is a former International Affairs Secretary of BNP and served as an Ambassador to Iraq as a political appointee. He had felt embarrassed to join the Bench to hear the Bangabandhu murder case which is a violation of the oath ‘to do right to all manner of people according to law without fear or favour, affection or ill-will’. The neutrality of Justice Hasan ¬ or his reputation for neutrality is irreparably damaged.

The former President Badrudozza Choudhury had been hounded out unceremoniously and in violation of the Constitution when BNP was annoyed with his conduct (i.e. non-partisan). BNP chose a docile and submissive person as his successor. The circumstances of the expulsion of President Choudhury impugn the reputation and neutrality of his successor President Iazuddin Ahmad. A Caretaker Government with Justice Hasan as the Chief Adviser and President Iazuddin Ahmad holding it to accountability will have no credibility for neutrality.

Therefore, a citizen should be appointed the next Chief Adviser for which the Constitution makes provision. The President needs to initiate consultation with the major political parties, including BNP, at the earliest. The President needs to consult the Prime Minister in this regard but perhaps is not bound by the advice. The issue does not relate to public policy or administration but political conflict in which BNP-JI is a party and which has the potential to generate constitutional crisis. The President has to deal even-handedly with both parties. The oath of office binds him to protect the Constitution and the Republic.

The Advisers should be chosen after consulting the major political parties in order to avoid persons who are closet partisans, lack sophisticated understanding of limited government, and do not use their position subsequently for personal or commercial benefits.

According to the Constitution, the President appoints the Advisers; in reality, the appointments are made on the advice of the Chief Adviser. The Council of Advisers represents broadly different professional / occupational groups, retired civil and military officers, religious minority (Hindu) and women. Justice Latifur Rahman admits to have chosen two advisers on President Shahabuddin’s recommendation. The Chief Adviser has full discretion to choose the Advisers which may lead to selection of persons who are closet partisans, lack clear understanding of the constitutional subtleties of limited government, or patronage to friends and relatives.

For example, in 2001 one Adviser remarked that the Caretaker Government, being a government, has the same mandate as any other government and is not accountable to anyone. Clearly, he was unaware of the Constitution and lacked the sophistication to understand the basic principle of limited and accountable government. Some Advisers have been engaged later by the Alliance Government as Chair of Commissions / Committees or paid employee of government companies, which impugns their neutrality retroactively, of course.

Some former Advisers project themselves as such for personal or commercial advancement. Most probably they have no other achievements which can commend them to the society. Such self-promotion implies that people of indifferent competence or reputation may be chosen who join the Caretaker Government for future benefits and may not act neutrally. The President and the next Chief Adviser should be careful to avoid selecting such people for the high and responsible office of Adviser.

The eligibility of the professors of the public universities to become Advisers should be examined before the next Caretaker Government. Justice Latifur Rahman excluded them apparently on a private opinion based on a superficial reading of the law and ignored the underlying rationale.

Justice Latifur Rahman excluded the university professors from the Council of Advisers on the ground that the university statute debars them from parliamentary election whereas eligibility to contest election to parliament is prescribed as a qualification for the Advisers. Exclusion of the professors of public universities denies the country the benefit of some knowledgeable Advisers and discriminates against the public universities vis-à-vis the private universities. The issue needs to be sorted out before the next Caretaker Government.

The government and public employees are debarred from the legislature as they are subject to government rules and discipline which prevent them from performing their legislative role independently. The legislators are obliged to act independently ¬ i.e. neutrally without submitting to other obligations or constraints. The Advisers are obliged to act neutrally or independently and abnegate the right to contest the ensuing election. The self-denial by the Advisers and statutory denial of the university employees seem to derive from the same rationale: capacity to act neutrally. Justice Latifur Rahman adopted a private interpretation on a superficial and narrow textual reading of the law.

The Election Commission should be made independent in conformity with the Constitution by granting control over personnel, the approved budget, and the government officials deployed on election duty. The incumbent Chief Election Commissioner and the other Commissioners should be replaced by persons who are acceptable to the major parties which will contest the election.

The President appoints one or more Election Commissioners as may be necessary; provides fund and staff as requested by the Commission; and the Commissioners cannot be removed prematurely except through institution of the Supreme Judicial Council as it applies to the Judges of the Supreme Court. When there are more than one Election Commissioner, one of them is designated Chief Election Commissioner. The President acts on the advice of the Prime Minister on all matters which sets a broad canopy of executive control over the Election Commission and undermines its independence.

Some recent events have brought into focus the ungainly aspects of the executive control over the Election Commission. About half of the Thana Election Officers recently appointed were members of the students and youth fronts of BNP / JI or otherwise related to Alliance leaders. The enumerators and the supervisors appointed for preparation of the fresh or revised new voters’ list are politically connected with BNP / JI while appointments of the Hindus and others known to be or allegedly inclined towards Awami League were cancelled.

There is difference of opinion as to whether the High Court’s decision is for revision or a fresh voters’ list. Following the interpretation given by its lawyer the Chief Election Commissioner has pursued preparation of a fresh voters’ list with several extension of time. The Chief Election Commissioner has made an appeal to the Appellate Division which is awaiting hearing by the full bench. The decision of the Appellate Division will end the liberty of interpreting a court’s order by the parties to the judicial proceedings.

In the meantime, the Government appointed two new Commissioners, raising the number to four. So long the Commission had worked well with three Commissioners only. The appointments came after the judgment of the High Court that the Commission takes decisions by majority if consensus is missing. The appointments ensure majority for the Chief Election Commissioner. The Chief Election Commissioner consults the new Commissioners only; meetings are not held for collegial decision making. The decisions would require a casting vote by the Chair (CEC) if meetings were held, given that the Commissioners are evenly split. Systematic use of casting vote contravenes collegiality.

The Election Commission deploys a large number of government officers and employees on election duty. The Commission should have full control over them while deployed for election and must be given power to apply sanctions to them. As seen in the past, the government officials can win patronage if they had leaned to the winning party.

Awami League with 13 other parties has proposed that the Election Commission enforce more strict election conduct rules and more transparent accounts of election expenditure which would help eliminate the pernicious role of black money, physical intimidation, and vulgar appeal to communal prejudices. The quality of Parliament Members would improve if the Election Commission can implement strict election conduct rules.

The reforms aim at removing the executive control and making the Election Commission independent in a substantive sense. The number and qualifications of the Commissioners ¬ including the Chief Commissioner ¬ should be determined and they be selected through consultation with the major political parties. The Commission should have full control over utilization of the budget allocation made in the charged category as in the case of the Supreme Court. The Commission should control recruitment, appointment, discipline, promotion, and all other matters relating to its employees.

The legal amendments which invest the armed force personnel with power to arrest people should be rescinded; they can be deployed to assist the civil administration in accordance with the Criminal Procedure Code and the Army Code. The reforms will help retrieve the reputation of the defence forces for political neutrality and remove the false claim that Begum Zia is their preferred candidate.

The extant criminal procedure code and the army code authorize the civil administration to call the defence force personnel to assist it when required. During the Caretaker Government in 2001, the President promulgated an ordinance which invested the defence force personnel on election duty with the power to arrest people. Justice Latifur Rahman records in his account of the election of 2001 that the request for the enhanced role of the defence forces and their early deployment came from the Alliance. The ordinance presupposes a judgment that the existing legal provisions were insufficient and therefore legal amendments were necessary. This is not the case obviously.

The defence personnel lack the training to exercise powers within the boundaries of civil law and judicial supervision. There is no official account of the number of people arrested by the defence force personnel, production before court and grant of bail, cases registered and their disposal. On the other hand, there are credible reports that they harassed the workers and the supporters of Awami League, sometimes even the candidates who had been Parliament Members several times.

The reforms will help retrieve the armed forces’ reputation for political neutrality and consolidate constitutional democracy. Begum Zia lives in the former official residence of the Chief of the Army which had been leased to her on a nominal consideration after assassination of President Ziaur Rahman who lived there. Lt. General Ershad leased to her a house in Gulshan for a nominal consideration soon after coup-de-etat. She is projected as the candidate favored by the army with a nuanced threat that military would take over if she were not elected.

The bureaucracy has been extensively politicized; the next Caretaker Government will have to take hard decisions to keep the partisan civil servants off election duty in order to ensure a fair election.

It will be hard to find neutral civil servants at the next election. The Government has sacked a large number of administrative and police officers on the suspicion that they were sympathetic to Awami League or secular democratic Bangladesh or, more demonstrably, not connected with BNP / JI by partisan ties. Service rules had been revised ¬ and often kept confidential ¬ to give accelerated promotion to partisan civil servants in excess of available posts on the consideration that they would hold important positions during the next election. The Caretaker Government and the Election Commission will have to take very hard decisions about the bureaucracy if they were to ensure a modicum of fairness.

While Awami League made significant progress towards conciliation by placing the demands in Parliament and accepting discussion with a committee with clear mandate, BNP seems uncertain about the concessions it can make and the non-negotiable minimum. In order to create conducive atmosphere for negotiations, the Government should stop using the law enforcement agencies to muzzle the Oppositions demonstration of public support, monopolizing time of the government owned electronic media, and using government resources to organize public meetings for election campaign. If the Government leaves office without addressing the reforms effectively, it will precipitate a constitutional crisis.

The score card shows Awami League with its allies to have taken major steps towards conciliation. It returned to Parliament and placed the demand there. While BNP dithered after the initial statement of the Prime Minister that a committee could consider the proposed reforms. Awami League mounted the criticism that the Government was not serious about the reforms and was using the committee as a stratagem to evade discussion. BNP then invited the Opposition to talks but without specifying the mandate and the time-frame of the committee. Awami League has already replied to the invitation asking for the specifics.

The Opposition has declined to sit with JI which worked against independence. The Alliance may have a problem dealing with this condition which is internal and not strong enough to derail the negotiations. BNP, which is the major partner in the Alliance, can sit in negotiations without JI. All legislation and administrative actions can be implemented by BNP alone. The Constitution can be amended by BNP and AL together. JI is not at all relevant to the negotiations and subsequent actions.

BNP’s score card is less persuasive. The invitation is vague indicating that BNP is not sure of what it wants to do and how to go about it. Meanwhile, the Prime Minister and other Cabinet Members have continued to criticize Awami League ¬ often using deceptions ¬ revealing that their attitude remains unchanged which is not conducive to conciliation. The Prime Minister alleges in the public meetings that the success of her administration scares Awami League which conspires to ‘seize’ power through unconstitutional means. Awami League has pursued democratic politics always; it did not ever come though military coup-de-etat but was too often ousted by military putsch.

The General Secretary of BNP maintains that Awami League should come to the negotiations with an open mind and not set any precondition. No negotiation is necessary or possible if all the parties come with open mind. Each of them has broad agenda, makes concessions, and secures the critical minimum concessions from the other side. If BNP still does not know the concessions it can make and the non-negotiable minimum, then enormous problem lies ahead.

BNP has mixed up the electoral reforms and election campaign which confuses the issues. While opening government projects or announcing new projects, the Prime Minister also asks for vote for her party. It is irresponsible to make promises which cannot be fulfilled within her present term. Also, substantial public money is spent for her journeys to these projects. A strong and conscientious public audit would find this unacceptable. These are also publicized on the government owned media, television in particular.

In contrast, the Opposition’s efforts to mobilize and demonstrate public support are muzzled by the state law enforcement agencies ¬ often brutally ¬ and the Opposition hardly gets adequate time on the government media. As a result, the citizens do not get a balanced view of the proposed reforms of the Caretaker Government and the Electoral System.

It should be clarified that the Opposition political forces have sought comprehensive reforms for the electoral process as a whole. They are not simply about the caretaker arrangement or the Election Commission. There are four items of reform relating to the system of caretaker government. First, the Chief Advisor and the Advisors should selected by consensus among political parties. Second, the responsibility for defense shall be with the caretaker government and not the President. The third and the fourth items are simply reiteration of the provision (a) that the President shall act only on the advice of the Chief Advisor and (b) that the caretaker government shall deal with only routine matters of the government and assist the Election Commission in the conduct of election. There are several issues relating to the reforms of the Election Commission with a view to make it credible, independent, neutral, forceful and autonomous in its operations. There are four particular points of great significance. First, the voters’ list preparation should be transparent and open and must be done by updating the existing list and photographs of voters should be in the list. Second, there shall be an all party observation team for each constituency at the election time. Third, election observers should be enlisted nationally after due assessment six months ahead of the election and be cleared by the political parties. Information on international observers should be announced a month before the election. Fourth, electronic voting should be introduced and failing that (because of time constraint) large transparent ballot boxes should be used. Finally, there are a host of reform proposals on qualifications of candidates, curtailment and accounting of election expenditure, ban on communal or religious propaganda, fair distribution of time on electronic media, democratic culture in political parties, enhanced female representation and direct vote by women, restriction on bestowing magisterial powers to law enforcing agencies, and denial of eligibility of candidates on account of adverse criminal or adverse credit record.

It is important that the Government takes steps to keep the citizens informed of pro and con of the reforms and their implications for a democratic state. The Government needs to take certain steps to that end. First, the Government and the Opposition should get equal time on the government media to argue their points of view. Second, the Government shall not use the law enforcement agencies to obstruct ‘peaceful demonstration’ organized by the Opposition but shall nab and punish agents provocateur in these demonstrations. Third, the Government shall stop using public resources for organizing party meetings and election campaigns. Finally, the Government must not leave office without addressing the issues squarely; such a course of action will aggravated the constitutional crisis, proving that BNP is an irresponsible party.

Newsletter _______________________
Vol-5, No-2, April 12, 2006
Bangladesh Awami League Publication