Controversial politics, not so controversial issues

Published in The New Age, September 18, 2006

The issues over which the country’s politics have become uncertain and volatile are serious but not intractable and at least one related to justice Hasan has been made controversial on premises that conflict with both reason and the Constitution. The NDI Report while encouraging all parties (in this instance the AL) to go for elections, identifies the real problems in Bangladesh’s politics as partisanship and lack of communication between the parties who ‘appear estranged from real word challenges and needs of 140 million people of Bangladesh.’ The NDI Report sees serious problems to holding the next elections but feels there is ample time between now and election date to resolve them, writes M Serajul Islam

The country is fast turning into a battle ground, thanks to our mainstream political parties. With just a little over a month left for the BNP-led government to complete its tenure when the major political parties should be eagerly preparing for an election under a non-party caretaker government (NCG), foreboding dark clouds loom large in our political horizon. The 14 parties led by the Awami League have threatened that unless two critical political issues are resolved before the BNP-led government hands over office to the NCG, they would not go for elections and will not allow elections to be held either. The AL is threatening that they will not allow even Ramadan to stand in their way. The BNP is stubbornly refusing to accede to the AL demands. Recent hartals, attempted barricades of the PMO and related agitations have given us a preview of what the AL has in mind. What are the issues then that is encouraging the AL to push the country to the brink of disaster?

The first is related to the Election Commission that they believe has become a BNP camp. They want the Chief Election Commissioner and his colleagues to resign. They also have reservation about the voters’ list which has suddenly become inflated with 2 crores additional voters. The second issue is related to the head of the next NCG. The AL has objection to his appointment because they claim that his past membership of the BNP in the late 1970s and early 1980s from which he resigned to be a judge contradicts the crucial element of neutrality as laid down in the Constitution. The AL’s objection to Justice KM Hasan is also based upon his opting out from hearing the trial of Sheikh Mujibur Rahman and BNP government’s decision to extend the retirement age of the judges from 65 to 67 that placed him in position to be the next head of the NCG. They claim both compromise his neutrality.

The NDI team that recently came to Bangladesh to talk with the two parties gave the country an objective view on the issues. On justice Hasan, NDI has observed that although concerns expressed about him are legitimate objections, ‘past service to a political party should not be an automatic disqualification to public service’. The NDI has dispelled AL’s concerns by stating that the head of NCG works with 10 other advisers and ‘under intense international and domestic scrutiny’ and hence his ability to be biased is very limited. The NDI has recommended that the CG ‘should be formed according to he rules provided in the Constitution.’ On the EC, the NDI Report advised the CEC to address the ‘perceptions of bias and incompetence that are undermining public confidence in the electoral process’. The most important part of the NDI report is its clear message that ‘election should not be held hostage to the intransigent position of either the government or any political party’.

The NDI Report however has not looked into the constitutional provisions on NCG in depth. The provisions of the NCG are covered under Part 1V, Chapter 11A, Articles 58B to 58E of the Constitution. The issue of neutrality is discussed in Article 58C sub Para 7 (b) in the context of qualifications of advisers. The head of the NCG is required to fulfil the same qualifications as advisers. Article 58C sub Para 7 starts with a preamble that reads: ‘The President shall appoint Advisers from among persons who are:’ and goes on to inscribe in Para 7 (b) ‘not members of any political party or of any organisation associated with or affiliated to any political party’. The qualification in the Constitution on neutrality is written unequivocally in the present tense without need for a second interpretation. A person can be disqualified to be a head of the NCG on the issue of neutrality only if he is at the time of assuming the office, a member of any political party or any organisation affiliated to any political party. Justice Hasan was a member of the BNP that he resigned in the early 1980s and has since risen from a judge to a chief justice during which period he has been a respected member of the judiciary. The Constitution therefore places justice Hasan in the clear to head the NCG on the issue of neutrality. It also leaves the BNP with no power to negotiate with the AL on justice Hasan.

The other objections against justice Hasan are also untenable. In fact, the issue that he was ‘embarrassed’ to hear the Sheikh Mujibur Rahman’s murder trial should go in favour of justice Hasan because he showed the integrity to withdraw from the trial as he was related to one of the accused. Despite the extreme brutality of that case and the need to try and punish those responsible, the trial under the AL government was held in extremely charged circumstances where facts were not carefully considered. We should not forget that the case was tried over 20 years after the murders during which many facts were either lost or not properly represented. Let me provide a couple of examples here. The presiding magistrate was so carried away by sentiments that while passing sentence of death upon the accused, he wrote into his judgment that they should be shot before a firing squad, a mode of punishment given only in a military court. Recently I have read Christopher Hitchen’s Trial of Henry Kissinger where the assassination of Sheikh Mujibur Rahman has been covered explicitly. The revelations in the book make no secret of the role of an external power and on behalf of that power, that country’s intelligence organisation, in encouraging the assassinations. None of these facts came out during the trial that have left it incomplete. I am not sure what else was in justice Hasan’s mind when he ‘embarrassed’ himself but then an honest and truthful judge could have been motivated to put the entire judgment aside on grounds that the trial was not sufficiently transparent. The final objection against justice Hasan that the retirement age of judges was extended from 65 to 67 to ensure that he would be the next head of the NCG is a fact for which the AL can accuse the BNP and make political capital during the elections. The BNP did not consult justice Hasan in taking that decision. To accuse him that this act of the BNP would compromise his neutrality and make him pro-BNP is unfair. As a diplomat during the AL rule, I have read many speeches of the prime minister and the foreign minister where they took great credit for the concept of NCG that they claimed was Bangladesh’s original contribution to democracy. There was then not even a murmur that the system needed any reform.

The Constitution clears justice Hasan but does not explain the BNP’s extension of the retirement age. But then that is politics. The Awami League would have done the same if they knew that by not extending the retirement age, the head of the NCG would be someone they perceived to be pro-BNP. I do not want to name that judge here but the more important reason for the BNP to extend the retirement age was to keep him from being the next head of NCG. During a trip to Saudi Arabia towards the end of her government, Sheikh Hasina, feeling confident about her party’s chances, hinted an early election to an audience there. The hint was put in cold storage immediately afterwards when it was found that an early election would place a person the AL was not conformable with as the head of the NCG. The AL completed its term and elections were held under justice Latifur Rahman. It is a different story why the AL later turned so critical about justice Rahman.

The AL’s objection on EC is somewhat different. The Constitution gives the EC extensive powers on the one hand and takes away a lot of it by the other. The president appoints the CEC and the commissioners on advice of the prime minister. The EC staff is also provided by the president’s orders but again on recommendations of the prime minister. In practice therefore the Constitution places the EC under the PMO. Both BNP and the AL have used the connection to their fullest advantage. It is true that the BNP has staffed the present commission with persons who are closer to them, if not politically, at least individually. The AL also used the PMO/EC connection blatantly when they appointed Safiur Rahman to the commission after the latter had served the AL government faithfully with extensions as the home secretary. Though Safiur Rahman did not join the Janatar Mancha in 1996, as a sitting secretary he gave a statement in the press openly expressing his commitment with the Mancha. Despite what is being said against the present commissioners, none of the present lot in the EC had the sort of link Safiur Rahman had with the AL. As with the NCG, the AL’s criticism about the commission is being ventilated only because the commissioners there are now being seen by them as pro-BNP. It must also not be overlooked that former CEC Syed Ahmed was considered by the BNP as pro-AL. The BNP’s objection to his appointment was dismissed summarily. That the AL later termed him as pro-BNP is relevant to the AL way of thinking. When things go their way, everything is fine; when things go wrong, the persons and institutions they have supported need immediate reform and/or change.

The present EC has nevertheless become controversial because of the BNP’s handling to which the CEC has also contributed his fair share. The NDI Report has flagged this very explicitly. The inflation in the voters’ list and the way it has been compiled have also added to the controversy about the EC in the public mind. In fact, there are very few people in the country today who feel that the present set-up of the EC would be congenial to the holding of a free and fair election where the role of the EC would be more important than the head of the NCG.
The PM’s call on September 15th for talks between the two major parties at the level of secretary general is a positive sign but the AL’s first response has been negative. Other recent developments such as BNP-led government’s decision to name a new commissioner, who has been a significant beneficiary of this government, and AL’s new programme for agitations suggest intensification rather than resolution of the issues. The AL propagandists have been feeding people disinformation by telling them that the next head of NCG could easily be chosen from an eminent citizen. However that would be easy only if the Constitution is by-passed for if for some reason justice Hasan opts out (under the Constitution that is the only way to meet the AL demand), the position would then have to be offered to the next chief justice in line and in the unlikely event that he would also opt out for any reason, the next CJ would be offered the position and it will take many more judges to opt out before the position could be offered to an eminent citizen. The million dollar question would then be whether the BNP and the AL would agree on an individual for the post. The chances of that are just too remote.

The issues over which the country’s politics have become uncertain and volatile are thus serious but not intractable and at least one related to justice Hasan has been made controversial on premises that conflict with both reason and the Constitution. The NDI Report while encouraging all parties (in this instance the AL) to go for elections, identifies the real problems in Bangladesh’s politics as partisanship and lack of communication between the parties who ‘appear estranged from real word challenges and needs of 140 million people of Bangladesh.’ The NDI Report sees serious problems to holding the next elections but feels there is ample time between now and election date to resolve them.

There is thus no reason to despair yet. AL’s ability to put a gridlock on the government would be limited by lack of public support. BNP’s opposition to AL demands on the EC that have public support by propping the latter would be gone once the NCG takes over. The demands would also have better consideration then. The international community has a continued interest in Bangladesh as seen by the NDI and EU delegations’ visits and most recently by the offer of the Americans to negotiate. They would no doubt all urge both the mainstream parties to be reasonable. Justice Hasan has shown no indication of opting out and there is no reason why he should. Attempts to force him out would also not have public support. The international community would also not recommend justice Hasan to stand down. If the AL wishes to push out justice Hasan by force, they will lose both public support and sympathy of important friends of Bangladesh who are disillusioned with the BNP’s poor governance over a host of issues, particularly those related to the Islamic militancy. Therefore if the AL is serious about coming back to power, they have to accept justice Hasan, push through for reforms in the EC under the CG and, of course, participate in the elections. Otherwise, they would be playing into the hands of the BNP which as it leaves government, stands on very unsure ground so far their chances of returning to office are concerned.