Monday, October 8, 2012

Good-bye to caretaker system: The possible consequences

"As I See It" Column
The Independent
6th October, 2012
M. Serajul Islam

The Prime Minister's statement during her recent trip to New York that the door for the Caretaker Government is closed is not good news for those who are praying that for the sake of the country, she would relent. Before this statement, she had said in the parliament that after the completion of the term of the current parliament, she will ask the President to announce the date of the elections and name a head of the interim administration. 

That statement had raised hope that she might meet the opposition on neutral ground for its participation in the next general elections. That hope has been dashed by the Prime Minister’s statement in New York enhancing fears in the public mind for a number of reasons. The political situation is now more conflict ridden than what it was in the final days of the first BNP government when the AL had brought the country to a standstill with the lagatar hartals and civil disturbances to make the CG system a part of the constitution. Further, the present AL led government has made a mess of governance leading to a great deal of dissatisfaction among the people. The Awami League is now not the main dominant political force in the country. Therefore if it attempts to impose its will upon the country on the issue of the next general elections, it will only succeed in pushing the country into civil disturbances that will be dangerous and destructive. 

The Prime Minister has stressed on the need for holding the next elections under elected government for sake of democracy. She has said that an unelected government cannot bring democracy; that it paves the way for extra constitutional forces into politics instead. These arguments do not stand to scrutiny. Once the parliament is dissolved as the Prime Minister has now said it will, there will in fact be no elected politicians in the country. Therefore, whatever the shape of the interim government, it will be comprised of and led by unelected people. Even if Sheikh Hasina herself heads the interim government, she too will be an unelected person once the parliament is dissolved. 

Her argument that holding elections her way will help democracy is also fallacious. It will, for instance, not bring the opposition to the polls. The opposition’s strength among the people is by no means any less than that of the ruling party. With the failure of the government in delivering on the key electoral promises, independent analysts feel that the position and popularity of the ruling party has weakened substantially. Even when the ruling party won its massive victory in the last elections, it had polled less than the majority of the votes. Therefore an election boycotted by the opposition will simply not bring democracy no matter what the ruling party thinks of their reasons of the boycott. 

The Awami League should also look a little more carefully at the last caretaker government and beyond to see how  justified it is to raise the fear of the extra-constitutional powers as a threat to democracy particularly at what the Prime Minister had said about the extra-constitutional forces that were the real power during the last caretaker government. She had said once in power she will legitimize all the actions of the military. In fact, she had also said that 1/11 that ushered the military into politics, was the fruit of their democratic struggle! Further, the Awami League has already brought amendments into the constitution to put the fear necessary for the military to refrain from any thoughts of taking over political power. 

To make matters worse for the ruling party, the Supreme Court's judgment on the annulment of the 13th amendment upon which the Prime Minister is bidding good bye to the caretaker government did not have a smooth entry into politics. That judgment took a long time in the making. Justice Khairul Huq, who chaired the 7 judges' bench for hearing the 13th amendment case, signed the final judgment 16 months after he retired as the Chief Justice just a  day after writing the short judgment that annulled the 13th  amendment that set the issue against the CG rolling. The ruling party used the short judgment and its 3/4th majority in parliament to end the caretaker system. A simple but very legal question has been raised whether a retired Chief Justice who has the legal authority to write the full judgment. Further, there are other issues that are also troubling the minds of the public. 

One troubling issue is whether a divided judgment with 4 judges in favour and three against on a fundamental constitutional issue should be implemented where the two mainstream parties are sharply divided. The dissenting judges did not see anything unconstitutional or undemocratic in the unelected Caretaker system. They said that existing constitutional provision  even without the 13th amendment allows the outgoing cabinet to remain in power for 90 days as the unelected body to run the country  till a new elected government is formed after dissolution of the outgoing parliament and election of the new parliament. They also referred to the constitutional provision for 10% unelected Ministers in the Cabinet to argue against the majority decision that, first, unelected members cannot be a part of a democratic process; and, second, there is anything wrong constitutionally in the 13t amendment. Also, when the detailed judgment came out, discrepancies between the detailed one and the short one 16 months ago also came to light, rendering further controversy into the judgment.

The Supreme Court’s judgment, instead of resolving the darkening clouds over the political canvas of the country, has enhanced it. Many had hoped that while writing the final judgment, the Court will consider the darkening clouds and write in the judgment that the next two elections must be held under that caretaker system that in the short judgment it had recommended to the parliament. It is a pity that they have not done so, more because the dissenting judges have clearly shown that they could have done it easily by using existing provisions of the constitution and the conflict between the ruling party and the opposition has sharpened.

Therefore, the darkening clouds must be dispersed politically which now throws the country into great uncertainty. Barrister Rafiqul Huq’s offer to head the caretaker government had raised people’s hopes but the Prime Minister was quick to pour cold water on it. Thus, the future is not just uncertain but one with dangerous forebodings. If the Prime Minister wants democracy to win and the country to survive, she will have no other alternative but to read the writing clearly on the wall; that the only to save the country is, first, to hold the next general elections in a manner where it will be free, fair and neutral and, second, where the opposition will be encouraged to participate. She will have to decide how to do it. Meanwhile, the nation can only bend on its knees and pray to the Almighty to show her the light and give her the wisdom to find answers to the onerous responsibilities that destiny has placed on her shoulder.

The writer is a retired Secretary and former  Ambassador 




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