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Talking Polls and Beyond

'For free and fair elections, you must uphold the constitution and the law'
A senior advocate of the Supreme Court, Dr. Kamal Hossain received Barrister at Law degree from Lincoln's Inn, London in 1959. He obtained his BA Honours in Jurisprudence in 1957, Bachelor of Civil Law in 1958 and Doctor of Philosophy in 1964 from University of Oxford. Member of the parliament from 1972 to 1975, he was the chairman of the constitution drafting committee. He served as law minister in 1972, foreign minister (1973-1975), and minister of petroleum and minerals (1974-75). Dr. Kamal also served as vice-chairman of Bangladesh Bar Council, president of Supreme Court Bar Association, chairman of the advisory council of Transparency International, chairperson of Commonwealth Human Rights Advisory Commission and UN Special Rapporteur on Afghanistan. He is the vice-chairman of International Law Association and has been serving as the chairman of Bangladesh Legal Aid and Service Trust since 1993. He formed Gono Forum in 1993. ShamimAshraf and Hasan JahidTushertookthe Interview.
TODAY the entire country is keenly looking forward to participating in a free and fair election. The election date has already been announced and the schedule is expected within a few weeks. It is at this time that some of the parties have started to raise questions regarding the reform measures which have been on the national agenda for over two years and which have wide support, not only from political parties but also civil society and conscious citizens.
The aim of these reform measures has been to ensure that honest and competent candidates are nominated and that black money in crores does not undermine the . election process. There was no need to give the impression that there would be bargaining or wheeling and dealing over the reform measures. This impression was unfortunately conveyed by the moves of the adviser concerned.
The EC and the CTG just needed to say. "We have heard your opinions and will take our next steps." The EC might have asked them to come after complying with the rules. The EC is not expected to cany’ on an unending dialogue, thus delaying the elections, nor is the CTG in any way expected also -fo interminably protong-the ^o-called dialogue process. Democratic consultation is intended to provide an opportunity for views of all concerned to be heard, but the EC and the CTG have to take decisions in the light of the constitution and the law.
I have taken exception to the role of an adviser who is seen to be carrying on negotiations which are
not transparent, where it is not clear that these are even authorised by the council of advisers or the chief adviser, and on which no statement has yet emerged from the CA or the council, nor has any report been made public of what has been the subject matter of such negotiations.
This gives rise to speculation and uncertainty, and it is quite undesirable at this juncture, as it gives rise to suspicion. Such an impression must be avoided at all cost, just as we must avoid statements from responsible quarters that certain parties must be brought into the election "at any cost" because that cost cannot be by not complying with rules aimed to ensure free and fair elections, nor by complying with demands which involve violating the law or allowing persons who would be disqualified under the law from seeking election. Absolute impunity has in the past led to rampant corruption and subversion of free and fair elections.
You said that granting 206 bails in 100 minutes is not possible through legal procedures. How did it happen then?
That's why I have demanded an inquiry and will keep on pressing • for this so that it is found out who were responsible for undermining the judicial process. This matter has been drawn to the attention of the chief justice. Effective corrective action must be taken to protect the judiciary, the judicial process, the rule of law, and citizens, whose rights are to be protected by an independent judiciary.
What conclusive result of the
reform exercises do you see?
The EC has prepared a credible voter list and declared an election date within the declared timeframe. This is a solid achievement. The delay for implementing the remaining reforms can be avoided even now by not treating the dialogue process as endless and by curbing endless negotiations which give the impression that the EC may be subjected to pressure to weaken its commitment to ensure a truly free and fair election.
It is not permissible for the CTG, which is oath-bound to discharge its functions in accordance with the constitution and the law, to be seen to be condoning crimes and manifesting weakness in the face of lawlessness. When a person who is wanted by the law appears in public and no action is taken and no explanation is provided, serious questions arise as to whether the rule of law is not being undermined.
Do you think the government kept off from arresting Jamaat Secretary General Mojahid willingly?
I want to raise such questions. 1 don't want to see the government showing any leniency to any party in the matter of upholding the rule oflaw.
This incident frustrated many who questioned whether they are better off with the CTG than a corrupt elected government...
What could you do during these two years other than support the caretaker government to fulfill its constitutional duty to ensure a free and fair election? The CTG cannot weaken in the face of pressure to
allow the law to be evaded and effective law enforcement to be undermined.
We want to rescue ourselves from the destructive activities of those elements who have in the past enjoyed immunity and evaded law enforcement. If the law fails to do it, if the CTG also fails, the national goal of moving forward will be subverted. We should have learnt lessons from the experience of local elections where delay in disposing of the pending cases enabled those who were being prosecuted to contest.
Is there any fear of major graft suspects participating in the elections?
The right of political parties to be consulted on electoral reforms is valuable, but it can't be used a means of obstructing the holding of timely elections. No one can be allowed to insist on the release of those who are convicted or for wholesale withdrawal of cases as a condition of participation in elections. Strong and effective actions against corrupt persons should not be compromised under pressure from those who would like to pro-
tect such elements and unleash them again in a society which has suffered from the predatory activities of those who enjoyed absolute impunity.
Do you think government is being blackmailed to sit with the parties? The government must demonstrate firmness in protecting the people and state institutions from the destructive activities of those who have undermined both our democratic institutions and national economy.
Are the parliamentary elections going to take place on December 18?
We want this. The whole nation wants it. I hope and I expect that it will happen. Because there is a constitutional duty to hold such elections and the whole nation has made a contribution — time, energy, and resources. We have every right to expect that it should happen.
What could be the consequences if the elections are not held?
I don't want to speculate on something which is six weeks away. With a united effort, people could overcome those who want to create
obstacles and barriers.
Many see uncertainty over holding of the parliamentary elections on December 18. How to remove this? I don't want to be in uncertainty. I want it to be done. 1 am rather in uncertainty about those who are creating confusion and raising doubts. They seem to want to obstruct the election. They will be in trouble if a government of honest people is elected through a fair election. To achieve this, we need unity. The media should be very active. Radio and television should project opinion for a truly free and fair election throughout the country, there should be citizens’ rallies for honest clean elections and for the government to move forward and to protect honest citizens from the activities of those trying to obstruct elections.
Can the elections be held if the emergency is withdrawn?
So long as the law can be effectively enforced, yes, we can do it without emergency. If you can ensure that, we may not need to have emergency. The EC should be the judge of this.
Some parties opposed holding upazilla elections five days after parliamentary elections...
I leave this question to the EC. From the very earliest stage, we have said it is up to the EC as to whether they would go by the original roadmap. It has decided to make some alteration. And I don’t see why some parties oppose this, because upazilla election is not political.
You said recently that there should be post-election unity...
Elections should be able to strengthen a national consensus and to see that the government formed by the majority can find it possible to involve those who could be in the opposition to come into a government of national unity. It is necessary in order to meet the challenge of strengthening institutions and adopting policies which require a sustained national effort, particularly in the face of the global ecpnomic situa
The 14-party and four-party alliances have said they won't participate in polls without Khaleda Zia and Sheikh Hasina and if there is emergency.
We need constructive thoughts. No one, no party, big or small, should take a position that will obstruct the holding of free and fair elections.
How acceptable would an election be if held under emergency?
That depends on the entire circumstances. If a view is taken by people that in this situation it is not necessary and that under cover of emer-gency, people's rights are restricted, then holding elections under emergency will raise questions.
What should be the army’s role during election?
The EC and the CTG upon a mandate from the constitution are to ensure congenial conditions for elections. So, the police aided by the military, where the authorities consider it necessary, are required to play their role in ensuring that all voters can vote without fear, intimidation, and being terrorised.
What's your opinion about the so-called Minus-2 formula?
This is a past issue; historians can debate about it.
Would party registration bring qualitative change in politics?
That's the aim of the whole process. A national consensus has identified this as a major reform measure through which better elections can be ensured and better democratic institutions built. We know how democratic institutions have suffered due to lack of good elections and sick politics. The real aim for this is to generate healthy and clean politics and through that to make democratic institutions function in the interest of the people, and to build a brighter future.
The RPO has been relaxed. Do you see this as a compromise?
Those having the responsibility for this have to strike a balance, accept some suggestions, or not accept others, after listening to all views. At the end of the day, one should basically accept what is considered to be a national consensus. That's what we all should strive for.
Would Gono Forum compete in the elections with the 14-party alliance, or separately?
We'll have to see. My basic point is a broad unity of all like-minded parries. Besides the 23 points of the_ 14-party alliance, we may have a common minimum program on national economy, stability, democracy, education, and the all-important national issues. We've made our position clear that we would like to see unity of all likeminded parties together. It's not for us to impose this.
There was nomination trade in the 14-party alliance for January 22
election. Did you protest then?
Yes, I protested that at that time. If any'of the like-minded parties break the rules against nomination trading, we'll have to protest again. Will you quit the 14-party alliance if It does the same again?
Wait and see. No one will say I'll just accept that. When an honest person says I support a position and someone acts against it, he is then expected no longer to remain there unless there are some compelling reasons.
Do the "procession of bails" and meetings by "Mini Kissinger" mean that the government failed in its fight against corruption?
I don't want to say yet that the government has failed in this. Certainly, we have seen some weakening. And that's because we feel that some have expressed the view that you should bring in the parties "at any cost." I have made my position clear that this shouldn't be the case. Not "at any cost." For free and fair elections, you must uphold the constitution and the law. We won’t get such an election if we allow the law and constitution to be violated.
The parties have said that they would legalise the good steps of the CTG. In what form is that possible?
There is no question of "legalising," as this is not a martial law government. It is a government that has come within the umbrella of constitution. Any government when it follows another, normally you assume that it will maintain continuity, and if it does not, it means problem for the government that comes, not the one that has gone. The government that follows is expected to maintain continuity and stability.
When there is no emergency or CTG what will be the fate of the anti-graft drive since the main parties are against it?
I agree that the people who are opposing it have some influence on party policy-making. But we can in a body raise our voices to-corner them and fight them. The anti-corruption campaign must remain strong and effective and be protected from partisan interfer-
Do you think too many arrests weakened the anti-corruption drive?
Definitely. It should have been more targeted.