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Politicians..., if not the court

Asif Nazrul
IN a country like Bangladesh where the only scope for the general people of participating in "democracy" comes when they exercise their voting rights once in every five years, election naturally becomes a central discourse of political debate. The ingenious device of forming a non-party caretaker government to guard the sanctity and credibility of election was therefore hailed by majority of the people as well as political parties. The present Awami League led grand alliance government had shocked many by scrapping the system through the 15th Amendment to the constitution on the pretext that the apex court of the country had declared the caretaker government as void and unconstitutional in its short order in the 13th Amendment case. Others argued that the said order still directed for holding the next two parliamentary elections under non-party caretaker government in view of the age old maxims of necessity and safety of the people and the state.
The country was eagerly, if not anxiously, waiting for the full judgment to see the elaboration of that short order in the full judgment of the court. A few days before his retirement the then Chief Justice A.B.M. Khairul Haque gave the short order of the verdict on May 10, 2011, in which he along with the majority of the judges of the Appellate Division of the Supreme Court clearly directed that the next two parliamentary elections may be held under the 13th Amendment promulgated in 1996. The 13th Amendment provided for formation of a non-party caretaker government at the expiry of the tenure of the Parliament for conducting its next election in a free, fair and neutral way. But in the final judgment released after sixteen months on September 16, 2012, Justice Haque, in concurrence with the majority of the judges, directed that the caretaker government could be formed only with elected representatives. This kind of deviation without further hearing is unprecedented, and alleged to be violation of the basic philosophy of justice. This deviation has also been pointed out by the three dissenting judges of the Appellate Division and their observation on this issue can be regarded as a significant criticism of the judgment.
The full judgment of 342 pages
written by Justice Khairul Haque includes at least a dozen anecdotes; more than fifty quotations of different jurists and writers; various criticisms of and advice to politicians, judges, lawyers and civil society; and history of legal theories and principles. In spite of that, it did not even feel the necessity of accommodating any explanation or analysis of whether a judge has the constitutional authority of altering short order in the final judgment, whether there is any precedence of such divergence in the judicial history, or what is the relevance of that short order at present.
Some people argue that the last paragraph of page 338 of the said judgment still offers a scope for holding election under the supervision of an unelected (or non-party) caretaker government. But this is probably not correct. Because, in the same paragraph, three inseparable conditions are attached includ-
ing that "a caretaker government can only be formed by the elected parliament members." Further, according to the order of the judgment, part 44 and part 45 are the only operative parts of the judgment in which it has not been mentioned that unelected and non-party caretaker government can be formed.
Although, the judgment has not barred inclusion of the opposition parliament members in the caretaker government, it has not actually made any directives to that effect. It has rather put more emphasis on empowering the Election Commission (EC) for a free and fair election. In order to ensure that, it has recommended providing the EC with full financial authority as well the authority to recruit manpower. But, in its operative parts, it has again failed to impose any obligation upon the government for making necessary amendments in the concerned laws. More importantly, the judgment did not even entertain the question of reconstitution of the EC to make it acceptable, credible and
neutral. That could only be done by restructuring the Commission by consulting the opposition and through an effective search committee. A credible EC with enhanced power and authority could on its own ensure a fair election in a tolerant and democratic political culture which would take years to emerge in Bangladesh.
Until such an EC can be formed and such political culture can develop, an acceptable election could be held only if it is conducted under a non-party neutral caretaker government. A political government organises the administration and the law enforcing agencies during its tenure in such a way that these elements work for the incumbent regime during the parliamentary election. Only a caretaker government can break this structure and create a balanced situation for electoral administration. It explains why election engineering
happened more in the elections held under political governments rather than those under caretaker governments. It is important to note that no parliament in Bangladesh established through election under political government has yet completed its full term, two of the heads of government appointed through such election were brutally killed and all of such governments ended up in military rule or popular uprising. On the other hand, all three governments elected under the non-party caretaker or interim governments successfully completed their full term. It emphatically reflects the comparative acceptability of the elections held under non-party caretaker government.
One may doubt whether the situation would change if the next election is held under the present government or under a government comprising of all the political parties. BNP and its allies have been saying that they would boycott election under the government of the grand alliance. In this, the fear
remains that the parliament elected under such a government will face the same fate as that of the 1996 Parliament. On the other hand, the idea of all-party government is fragile because in the existing system all the executive power is concentrated in the hands of the prime minister. The prime minister of Bangladesh is more powerful than the prime ministers of UK or India or the president of the US. It is not theoretically impossible to employ anyone except Sheikh Hasina or any other member of the Awami League in this position in the government of election period. In order to avoid non-compliance with the constitution and the 13th Amendment judgment, one neutral person may be chosen through a by-election and then entrusted with the office of the prime minister of the caretaker government. Alternatively, the only independent MP Fazlul Azim may be chosen as the prime minister of such a government. But if that prime minister brings massive changes in the setup of the administration and police would the AL ministers in the caretaker government allow it? If no change takes place would the BNP ministers accept it? Would it be possible to sustain election and democracy in an environment of deep division in the all-party government and threat and counterthreat in the street?
The Supreme Court, in its 13th Amendment judgment, failed to foresee such apprehensions. It has nullified a recognised solution innovated by the politicians by changing its short order in the final judgment. After its judgment, we again face the age old challenges of election under political government. The sense of history, prudence and foresight, if there still is any, of the major political leaders of the country could now save us from this crisis. They should realise that their consensus for a non-party caretaker government is vital for peaceful and democratic transition of power in future. If such consensus could be reached, they may again amend the constitution to establish a different form of non-party caretaker government during election period. The simple device would be forming that government with non-political persons elected through by-elections conducted three months prior to the next parliamentary election.
The writer is Professor, Department of Law, University of Dhaka.