Transition to democracy through peaceful, neutral and credible elections

2. The problem that bedevils transition to democracy in Bangladesh is the mutual trust deficit between the two mainstream political parties, namely the Awami League (AL) and the Bangladesh Nationalist Party (BNP) who together command 80% of the electorate. Lack of trust in a party government to conduct a free and fair election for transfer of power and the unwillingness of the defeated party to accept the result/outcome of the polls creates political instability and stunts economic growth because the political programmes pursued often turn into violent agitation and mindless destruction of lives and properties. To ensure smooth transition, in the context of the belligerent politics in Bangladesh, the system of a neutral Care Taker Government (CTG) was introduced with the primary mandate to hold a free and fair parliamentary election within a specified time frame, as was stipulated in the 13th Amendment (now annulled).

3. Holding of polls on the basis of universal direct adult franchise,- a terminology of the political scientist paraphrased more eloquently by the Lincolnian version which we will come to later, is a necessary but not sufficient condition for democracy to take roots. Since the parliament is the nerve center of our multi-party political system, all parties big or small, have to be given proper opportunities to voice their views and grievances. Unless this can be ensured minority parties/opposition tend to abstain from the parliament. This trend had been manifest ever since the first election conducted by the Care Taker Government (CTG) under the then Acting President Justice Shahabuddin till now. Long term boycott of Parliament by both major parties the AL and the BNP along with their respective allies has become a threat to our fledgling democracy and made the parliament largely dysfunctional.

4. The people of this region more specifically, the territory now constituting Bangladesh, have experienced electoral systems since 1871 with the introduction of local government system. Since then, elections have been held periodically at various levels, but the search for a credible election system continues to remain elusive to our nation. During the 142 years, we also experienced autocratic, quasi democratic, limited democratic, civilian backed military rule and single party totalitarian rule and the revival of multiparty democratic system.

5. Articles 118 to 126 along with their sub-clauses as documented in the latest version of our Constitution (amended up to October 2011) at pages 43 to 46 clearly stipulate the guidelines for holding national election / parliamentary polls. Sadly, these guidelines are followed more in breaches than adherence. All elections/referendums held in Bangladesh were of questionable nature until the one held in February 1991 under the then chief Justice of the Supreme Court as well as the Acting President of the country. It was acclaimed nationally and globally. Several groups of international election observers and monitors as well as local ones were allowed wide access to oversee the electioneering process. This election brought BNP into power. The Presidential form government was replaced by a parliamentary one according to the understanding between the AL, the BNP, the JI (Jamaat-e-Islam) and a host of other allies against the Ershad regime with minimal changes in the constitution. Most of the basic election provisions of the 1972 constitution remained unchanged.

6. Alleging government complicity in the Magura bye election during first tenure of BNP, demands were raised by the opposition to introduce Care Taker Government (CTG) for conducting parliamentary polls. After prolonged agitation, violence and scores of hartals, BNP yielded to the demand. It hurriedly called election under existing provision, got adequate deputies of its party elected and passed a bill with provision of CTG (13th Amendment). The parliament was immediately dissolved. Since then three credible elections under CTG were held in 1996; 2001 and 2008.

7. Now an impasse has been created. The AL with its massive majority in the parliament changed the constitution, has done away with CTG and introduced a somewhat new model that is fraught with danger of manipulation, denying a level playing field, which the opposition terms as an attempt to maneuver the process with a view to retaining hold on power for unlimited time. This issue has divided the nation further, given rise to violent political movements and pushed the future of the nation into alarming uncertainty.

8. AL rationale for the change mainly are: a) In a perfect democracy there is no scope to vest the powers of the state to a group of unelected individuals who are not accountable to the people and still retain hold on power. This is ultra vires of the Constitution. b) In all democracies, the outgoing government is requested by the Head of State to continue as an interim government till the newly elected government takes over. During this period of transition the interim government discharges routine functions and does not deal with issues or problems that may have major policy implications. c) The government is only implementing the Supreme Court verdict. d) There is no scope to revert to the CTG system now that a law has been enacted – the 15th (Fifteenth Amendment) pursuant to the Supreme Court Verdict. e) The present government under the incumbent Prime Minister is committed to restore true democratic practice in order to bring Bangladesh at par with real democratic societies of the world. Towards that end, the Election Commission (EC) has been reorganized, further strengthened and made independent. f) Several thousand local bodies elections have been held during the tenure of this government without major incidence of complicity of government or any other form of electoral fraud.

9. BNP arguments/justifications for CTG Except the hardcore AL activists, pro AL intellectuals, and pro AL media, all other major political parties including some important allies of the 14 party alliance are against abolishing of CTG system. BNP and its allies arguments hinge on the following:

a) The Supreme Court Verdict is politically motivated. While disposing of a case related solely to the ownership of Moon Cinema Hall, it had quite needlessly dragged the issue which was a closed and past transaction in legal parlance.

b) The manner and circumstances under which the verdict was given were most controversial. The detailed verdict was not delivered while the Chief Justice was in harness. Almost two years after his retirement, former Chief Justice Khairul Huq finished writing the judgment. In the first short judgment he had recommended elections under CTG for the parliament for at least two times given the existing mistrust between the AL and the BNP and their alliances. This portion of the verdict was delivered by him just before his retirement. But he revised this earlier verdict – all these in his capacity as a private person – and deleted the part relating to the need for CTG at least for two more times.

c) In continuity of this, on 21 July 2010, in response to the proposal submitted by the Prime Minister and the Leader of the House, a Special Committee headed by the Deputy Leader of the House was constituted to amend the Constitution. This Committee, in consultation with the political parties, lawyers, some of the retired Chief Justices, retired judges, leading representatives of different religions, sects, communities and professionals submitted a report to amend and incorporate certain provisions in the Constitution so as to meet the demand of time. On the basis of the report so submitted, a Bill namely, the Constitution (Fifteenth Amendment) Act 2011 was introduced in the Parliament and was sent to the Standing Committee on the Ministry of Law, Justice and Parliamentary Affairs for scrutiny. After scrutiny, the Standing Committee with its recommendations presented the Bill in the House. According to the BNP, the Bill, which was passed by Parliament on 30th June, 2011, had been enacted posthaste without proper deliberation. It may be noted that 291 votes were cast in favour and 1 was against the Bill. (Source: Preface to Constitution of Bangladesh, October 2011)

d) AL and its allies argue that it is unconstitutional to hold elections under a government of non-elected persons as directed in the Supreme Court Verdict. But there are appointed unelected Chairmen to the Upazilla Parishads, the administrators of city corporations, ministers and advisors to the PM who are running the government with Ministerial ranks and status but without being elected.

e) That the opposition won in all the five Mayoral Elections recently is not enough proof of the government neutrality. During BNP first term (1991-1996) AL Hanif and Mohiuddin defeated their rival candidates from BNP Mirza Abbas and Mir Nasiruddin in Dhaka and Chittagong respectively. But that could not detract the opposition (AL and its allies) from further intensifying their agitation for a CTG.

f) Allegations of serious electoral fraud, malpractice and intimidation's galore the first AL regime of 1996-2001. Government complicity in Tangail bye- election was so blatant (26 cabinet ministers with their official retinue were in a campaign trail for the AL candidate)that a delegation of diplomatic corps, led by the U.S and Dutch Ambassadors and the British High Commissioner formally registered their displeasure with the then CEC. During the present AL government questions were raised on the Bhola and Brahmanbaria bye elections too.

10. In the preceding paragraphs we briefly dealt with the genesis of the CTG. Has the situation changed for the better? No. To the contrary, the mistrust and the adversarial relations between the AL and the BNP have further heightened. Confusion abounds. Offer of talks are stalled by the contradictory statements, – intended or otherwise – by the senior leaders of the ruling party.

11. The dynamics of the Mayoral/Local bodies elections are quite different from those of the national ones. During Mayoral elections, other elections such as those of the City Councilors and Ward Commissioner’s elections are also held simultaneously. There are a number of contesting candidates concentrated in a relatively much smaller area, in the outcome of which they have a direct interest. Therefore the candidates are obliged to maintain strict vigilance which makes malpractice like hijacking of ballot boxes and fraudulent operations like stuffing them with fake votes or preventing rival voters from going to polling booths difficult though not impossible. This is not so in the case of national elections / parliamentary polls where 300 constituencies go to polls on a single day. Constituencies are much larger, spread thin in remote inaccessible voting centers which can be negotiated with much difficulty making it almost impossible for an individual contestant irrespective of party affiliation to maintain that degree of vigilance. Moreover, in recently held city corporation elections, 5 to 15 thousand members of law enforcing agencies were engaged for each. For 300 seats it is well nigh Impossibility to muster any amount of law enforcer to be deployed close to these numbers. The fraudulent/ partisan elements will have a heyday. Secondly, the vigilance of media (print & electronic) and that of election observers get thinner because the area of vigilance is stretched too thin.

12. Besides, the local bodies elections and that of national elections cannot be weighed in the same scale. The latter elect the government which will rule the country for the next five years while the former has very little or no impact in so far as the national government is concerned. Seeking parallelism is misleading and will betray reality.

13. AL pledges of change in the election manifesto remains unaddressed viz. de- politicization of the administration/bureaucracy; curbing corruption; independence of judiciary; not to harbor goons and criminals; declaration of the assets of the MPs and the Ministers. The last mentioned has faded into oblivion. Forgetting its own electoral manifesto, its enthusiasm to change the form of election time government which was not mentioned in their election manifesto raised some eyebrows.

14. First and foremost, the Transitional system may be allowed to run for 2 or 3 or any specified number of times. Although some political analysts have suggested a referendum on this issue, given the discernible wave of public opinion in favour of the CTG there is really no need for holding a very costly, time consuming and cumbersome referendum at this stage which will further delay/postpone the holding of national elections. The AL action was arbitrary and unilateral and the onus is on the AL to redeem the situation. They should take the initiative in the same way as BNP did in the wake of the controversial mid February election of 1996.

15. Whether the elections will be held while the incumbent parliament (the Ninth Parliament) is in harness or after its tenure on 24 January 2014 remains uncertain. As per newspaper reports the PM has indicated her willingness to amend this aspect of the constitution. But what changes would be brought about remains unknown. If election is held while the sitting MPs are still in Parliament holding office, there is every likelihood of its being influenced locally. If it is held after the parliament is dissolved and the interim government consists of former MPs who no longer remain elected representatives, it negates the contention that the country cannot be ruled by the people who do not enjoy the mandate from the people. The people perception, however, is that no free or fair election is possible under a partisan government. EC does not have enough power and lacks confidence of the electorate. In effect it has no clear-cut authority to punish the errand civil bureaucracy; uniformed personnel; police and the law enforcing agencies; members of the staff of the local bodies, etc. The local administration which provides the polling and law and order personnel are politically biased. In the past they were party to cliques under the direct patronage of political power and pressure groups to engineer the outcome according to their design.

16. The argument that the bitter experience of 1/11 government justifies the scrapping of the CTG which by taking advantage of a lacuna in the 13th Amendment had transgressed the limits of its mandated responsibility. Last BNP government triggered the crisis by circumventing the provisions of the CTG and enhanced the retirement age of the Chief Justice ostensibly to facilitate the CJ of their liking to head the next CTG. BNP President Iazuddin short circuited the options to become the chief of CTG himself while retaining the position of the President. This was totally untenable in the public perception. The AL and its allies went for a hard line political movement of alarming proportions. Then came the 1/11 phenomenon which was welcomed by all except the BNP. Fakhruddin Ahmed, was installed as the Head of the CTG with the blessings and intervention of the Chief of Staff of the Army, General Moin. AL claimed it as the logical culmination of their movement. Iazuddin was allowed to remain the figurehead President when the real power and authority rested with General Moin. But much of the subsequent actions of this government of the triumvirate – Iazuddin, Moinuddin and Fakhruddin – were highly controversial. Sarcastically called the IMF, the people confidence in it marked a gradual erosion. The AL Chief however, in unambiguous terms, mentioned that her party would ratify all actions of the IMF government if voted to power. The IMF government, though to its credit, gave the nation a credible voter list, the first and foremost step for conducting a free and fair election.

17. The IMF government of 1/11 should not be seen as a CTG. It was rather an aberration. The AL had spearheaded the movement for CTG in concert with the JI and JP. The concept though mooted first by Jamaat, the AL lost no time in claiming that it was their brainchild. It had broad based national consensus and was acclaimed globally as well. Some countries are striving to follow this model, mutatis mutandis, the recently concluded national election in Pakistan is a case in point. Nepal had also earlier conducted its parliamentary polls drawing from this structure. But now its proponent, the AL is reneging on this issue and chose to reverse its earlier stand. Given the nature of the confrontational political culture, the CTG though practical but by no means was an ideal solution. Obviously, the CTG system should not be allowed to continue indefinitely. Ways have to be devised to transform into a truly democratic polity, – in Lincolnian terms – a government of the people, by the people, for the people.

18. Transitional government cannot be a system in perpetuity. It is only a stop-gap arrangement till the political parties can earn confidence of the people by their conduct and actions, both inside and outside the government as dependable ruling and opposition parties. Holding a referendum on the issue of transitional government at this point is not feasible in view of the constraint of time and secondly it will too require a constitutional amendment.

19. Holding credible election is only one of the many aspects of a robust democratic system. It gives sanction and legality to a government to rule. To be a truly democratic polity, it is essential that democratic practices are followed within the political parties. But enlightened debate or elaborate discussion on vital national issues within the parties is non-existent. A time honoured custom in the democratic world is that the party which loses elections immediately accepts defeat and congratulates the winner. The head of the losing party steps down as new leadership takes over. The most recent example is of Kevin Rudd taking over from Julia Gillard as the new Prime Minister of Australia. In Bangladesh, both the major parties lost elections one time or the other, but neither of their party heads has ever resigned assuming responsibility for the defeat. The ruling party has to be inclusive. But take it all has been the norms so far. Fair governance by the party in power is important. But it is no less important how much space it gives to the oppositions.

20. It is often argued that the present Bangladesh Constitution gives more power to the PM than even those enjoyed by the Mughal Emperors. Time has come to re-visit the constitution. The primacy of the PM given by the constitution needs to be rationalized. One approach may be, inter alia, to give more authority to the President of the country to strike some balance as a countervailing power without diluting the fundamentals of the parliamentary system. There are other realms of the constitution that demand a detailed examination of the articles in the light of nation forty plus years of experience which may be the subject matter of another discussion. Holding credible elections is only one aspect of democracy, not the end in itself. Re-writing of the constitution thus has become imperative in order to address the unfolded contradictions and to make the constitution more vibrant and functional.

21. Intra-party democratic practice should come out with a formula establishing that party leadership will be a collective responsibility based on ‘one person, one post. To elucidate further, the party chief and the head of government may not be one and the same person. Unless this is followed, we are afraid, there will continue to be too much concentration of power in one person of the PM, further aggravating the emergence of constitutional authoritarian rule.

22. The Election Commission, the principal body responsible for holding elections, should be formed with persons known for their personal integrity and professional excellence in a transparent manner, so that it can command spontaneous respect from the electorate. The present Article #126 reads it shall be the duty of all Executive Authorities to assist the EC in the discharge of its functions. This is simply not good enough to strengthen the EC. Extensive and elaborate provisions should be incorporated to ensure that the executive authorities of certain key ministries that are directly responsible for the command and control of election related personnel are divested from these ministries and given to the EC for the election period so that neutrality can be observed. For election related offences the EC should be the ultimate authority to prosecute and punish the recalcitrant personnel and the offenders.

23. Holding Staggered Elections is another option. It has worked well in India. But its viability has to be examined against the backdrop of prevailing realities in Bangladesh. Under this system voting is held on different dates for selected constituencies. At the end of the day when voting is completed, ballot papers in sealed boxes are brought to an assigned secured facility. After voting in all constituencies, are over as per assigned dates, the counting begins on a single day and the results are announced and published simultaneously. Thus the possibility of influencing the outcome of one constituency by the trend in another is minimized. Given the prevailing mistrust, weakness in security arrangements and alleged politicization of all spheres of public services, the system is unlikely to achieve credibility as of now. In not too distant future, with overall improvement in the socio-political climate, the Staggered System may become a distinct possibility in Bangladesh.

24. An established principle and practice is that the members of the CTG / interim government (IG) do not participate in the election nor do they accept any position in the following government. If this is honoured and they resign from party positions before taking oath, then much of the problem will be banished.

25. Against the backdrop of the preceding paragraphs, one may consider the formula of 5+5 drawn from government and opposition MPs with a non-partisan, non-judicial personality as its head. But this arrangement is fraught with danger of being nonfunctional regarding allocation of vitally important ministries like finance, defense, home, cabinet, establishment, LGRD, education, etc. The officials of these ministries at the grassroots level play determining roles in the electioneering process. Given the adversarial relations between the two major parties it is unlikely that the members of the Transitional Government will be able to arrive at a consensus for decisions on vital issues affecting the neutral conduct of the elections. They will most likely to their respective party lines, thereby compelling the head of the government to exercise his/her casting vote. The interim government cannot be effective with such an unworkable environment within the cabinet.

26. Now, if the experience of 1/11 is cited as an instance that demands burying the system, why not plug the loopholes in the system and make necessary changes keeping non-partisan character of the election-time government, e.g. keeping judiciary outside and reining unfettered power of the President and others. The two camps failed to go in tandem to bring the perpetrators of 1/11 to justice on charges of treason as happened when the SC declared Ershad regime as illegal.

27. Democracy is a fragile system, and its functioning is dependent on the values of its participants. Unless this mechanism is based upon rigid adherence to fundamental processes and principles, it will cease to serve its purpose and degenerate into authoritarianism. It is often said that eternal vigilance is the price of liberty. Without the people ability to choose their own leaders, scrutinize their activities and hold them accountable, a society cannot be a democratic polity. Unfortunately, democracy in Bangladesh has existed in name only, with power being jostled between parties with little reflection of the electorate aspirations. Let there be no repetition of sad chapters of our history.

28. After 40 years of independence the nation is still in a limbo vis-a-vis adopting an acceptable system to ensure free and credible election. The one of CTG that worked for two terms could not sustain the 3rd election. Given the SC verdict and the position taken by the two opposing camps, it is high time that we find out a system that will be workable and agreed upon by the two major political parties thus surmounting the immediate impasse, the failure of which will throw the nation into a dark uncertainty, a situation that one fears to contemplate. Without being pedantic, the following two formula may be considered at this stage:

Formula 1: We may call the government that will exist during the time of election as Transitional government (TG), or by any other agreed name. The portion of the annulled article 58 of the constitution related to CTG be revived incorporating mutatis mutandis following changes keeping in view the observation made by the SC in its judgment, the stands taken by the two major political parties in particular and the aspirations of the people.

a) Parties represented in the existing parliament will find a person who will lead the government as chief advisor other than one serving in the Judiciary. He/She will select a team of 10 members. These 11 persons will be appointed by the President.

b) President shall not hold the position of Head of that government simultaneously.

c) The members of the TG shall not accept any position in the government elected during their tenure.

d) If they belong to any political parties they shall resign before taking oath and shall not hold any party position during the tenure of subsequently elected government.

Formula 2: It is an extension of Formula 1, to plug legal loopholes further. Since head of TG is a person agreed upon by all political parties in parliament, the selection is to be made prior to dissolution of the present parliament and hence there should not be any impasse in getting it approved by this parliament. Thus he/she becomes an elected head of the Transitional Government, just as the president is an elected person. This satisfies the requirement of those who argue that the country cannot be left to unelected and unaccountable persons. The members of Parliament have been the Electoral College for the President, the Speaker and MPs from seats reserved for women.

29. In any case, the amendment of the constitution is an imperative without which the current impasse cannot be surmounted. To establish a sustained democratic system, the holding of a credible election is the first step that the nation will have to take as it embarks upon the long trail towards graduating as a truly democratic country. The nation is eagerly waiting to see a peaceful transition of power through a credible election. And for that, a meaningful dialogue between the two belligerent parties is a sine-qua-non to usher in an enabling environment required to extricate our nation of 165 million people from an unknown and ominous future.