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Abolition of the caretaker system
Now the proponent is the opponent, and the opposer is the supporter
Tuesday's speech by the prime minister in the parliament made it amply clear that the caretaker government system will be abolished through a constitutional amendment most likely to be passed today.
There are three aspects from which we intend to discuss the issue today, the rationale, the method of amendment, and our political culture.
THE RATIONALE
The reason for abolishing the CTG system is very straight forward. Sheikh Hasina declared that no unelected person should be allowed to run the country for however small a period. This is against the fundamental principles of democracy and elected government. The CTG is a non-elected body and hence it should be abolished. The argument is flawless and that is why no democratic constitution in the world has it, just as we did not have it in ours.
So, how did we get into it? Who brought it in? And most importantly, why did they do so? The answers for all the three questions are also straight forward. We instituted CTG in the face of relentless mass agitation by Awami League spread over a period of several years, culminating into continuous hartals of 5 days, seven days and lastly non-cooperation for an indefinite period. Why? Because Awami League, the then opposition party, did not have the confidence that the BNP government led by Khaleda Zia would ever give "free and fair" election. What evidence did AL have to substantiate their demand? None till Magura came along (Magura is the name of the place where a by-election was held in 1994, in which massive rigging took place by ruling BNP) and gave credence to AL's demand for a CTG. This, in spite of the fact that under BNP in the Dhaka mayoral election AL's Md Hanif won and became the first elected mayor ever in the country. May be it was BNP's defeat in Dhaka that made them nervous and rig the poll in Magura. But the result was a massive swing of support for the CTG proposal of AL.
This writer posed the question during that period to many AL leaders, including Sheikh Hasina, that how they could demand something which was not in the constitution of Bangladesh, and had no precedence in the world. The answer was "Constitutions are made for the people, and not the people for the constitution. If the people feel the need to change the constitution, then it should be changed to suit the needs of the people." Under this argument AL pushed for the CTG system, built a mass agitation behind it, and was finally able to force BNP to adopt it in the 7th parliament, which AL leaders correctly claimed to be their singular achievement.
So why its symbol of achievement is suddenly today so abhorrent that it must be changed in a hurry, though the next election is more than two and half years away? (See our editorial)
The question here is why does Sheikh Hasina want to abolish the CTG in such a hurry?
The reason for abolishing it could be the aberration the system exhibited during its last tenure. Of special significance is the ease with which the CTG was able to extend its 90-day tenure into a two-year one under the guise of emergency. What will prevent any future CTG from extending to similar if not longer tenure? Because of its longer stay in power the CTG got involved in many activities that it was not empowered to do.
The additional reason for the PM to hate the CTG is that it first imprisoned her, tried to force her into exile, and also tried to forcibly retire her from politics, both by allurements of privileges and threats of dire consequences. The role of DGFI was particularly nefarious on this count. Also during that time the incident with Dhaka University teachers and students, and an attempt to float political parties, which would no doubt do its bidding, created grave doubts about the CTG formula.
THE METHOD
While the PM's reasons for wanting the CTG system scrapped is understandable, the process and speed with which she is pursuing it is NOT. In fact it is baffling. Constitutional amendments are never done in a hurry. PM's comment that as she has two-thirds majority, the opposition's suggestions can be incorporated later through further constitutional amendments, basically makes farce of both the constitution and its amendment process.
How will the PM and her government answer the question that the constitutional changes are being brought about without waiting for the full text of the Supreme Court verdict, which is supposed to be the main justification of the amendment in the first place.
Constitution is the fundamental source of laws, and the governance process in a democracy. It should be sacrosanct, above all controversy, and reflecting the highest articulation of our fundamental values of freedom, justice, equality, fundamental rights, etc. Changing the constitution without waiting for the full judgement of the SC speaks of naked political expediency of those in power, and exposes their intention of using the "short order" of the SC for their own political end.
POLITICAL CULTURE
We believe that the PM will admit (and hopefully also Khaleda Zia) that all our political problems stem from our peculiar and specific political culture, whose hall mark is the complete lack of trust between the ruling and the opposition parties. This is the root of all our political problems. There is instant NO from the opposition to all suggestions of the government, regardless of which party is in power and how good and beneficial the proposal is. The parliament boycott, which AL decries today, was their norm during BNP's last tenure. The economy destroying hartal is condemned by the party in power and practiced by the opposition, again regardless of it being AL or BNP. Thus there is a total lack of morality in their respective positioning which are filled with only political opportunism.
The lack of trust was also the reason for, what we call, 1/11. It started with BNP changing the retirement age of the judges, that led AL to suspect that Justice KM Hasan was a BNP sympathiser, and as such not to be trusted to deliver a free and fair election, that led to a demand for a different chief adviser, that gave BNP the opportunity to prompt president Iajuddin to proclaim himself as the chief adviser, who then ran the CTG on orders from Hawa Bhaban, and so on and on.
All this led to 1/11. The root of it all was mutual suspicion between AL and BNP.
Let us pose a hypothetical question. If BNP was in power today, and it was proposing to abolish the CTG because of the same SC verdict, what would have been the reaction of the present ruling party? Need we answer?
The CTG was proposed by the AL in the mid nineties because of the mistrust that we just spoke about. The only acceptable way to hold elections, AL repeatedly demanded at that time, was to create a neutral, non-partisan body, caretaker body. And so it was.
The question is, has the situation changed? Has trust between the two sides increased? In fact the contrary is true. Will BNP accept an election under AL government? Would the AL have?
When we know the answers to these questions, then why are we playing such dangerous games with the future of democracy?
We conclude by quoting in full the short order of the Supreme Court that triggered the amendment process.
Short Order: It is hereby declared: (1) The appeal is allowed by majority without any order as to costs. (2)The Constitution (Thirteenth amendment) Act. 1996(Act 1 of 1996) is prospectively declared void and ultra vires the Constitution.(3)The election to the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment on the age old principles, namely, quod alias non est licitum, necessitas licitum facit (That which otherwise is not lawful, necessity makes lawful), salus populi suprema lex (safety of the people is the supreme law) and salus republicae est suprema lex (safety of the State is the Supreme law). The parliament, however, in the meantime, is at liberty to bring necessary amendments excluding, the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the Non-Party Care-taker Government. The Judgment in detail would follow. The connected Civil Petition for leave to appeal No.596 of 2005 is accordingly, disposed of
There is of course a lot of vagueness in the order. It is also possible to interpret it in different ways. But there is enough elements in it for a dialogue between the two sides to have taken place and some peaceful solution could have been found in solving the political problems that are looming large.
While SC short order sets the legal ground, holding credible elections is primarily and fundamentally a political task, and it can only be solved politically. While the Supreme Court gave the legal opinion, it was up to the parliament to find a political solution.
Here of course we severely fault the opposition for never attending the Sangsad, which is where they should have been every minute of the session, to voice their concerns and warn the government and the nation of the dire consequences of unilateral actions on the constitutional amendments. Their action constitutes betrayal of democracy, betrayal of their pledge to voters to represent them and also a betrayal of their responsibility to defend the constitution.
In democracy political parties that enjoy a huge majority in the parliament sometimes confuse majoritarianism with democracy. While majority rule is the way democracy functions, there is also the danger of brute majority imposing its views and bull dozing descent.
Four fifth majority that Moha Jote enjoys is also a 'treacherous crown'. It is very easy to fall into the trap of considering owns own opinion as that of the people. The arrogance that emanates from such a position is a dangerous allurement that often leads to the quicksand of overconfidence, and consequent overestimation of owns own strength and underestimation of the strength and popularity of the opposition.
The history of all two-thirds majority governments of South Asia are example of such follies.
Abolition of the caretaker system
What an incredible state of affairs!
Bangladesh indeed is an interesting country!
