Constitutional Amendments

Our country is still in a formative phase. We’re trying different things and trying to fine tune it till it works. Despite all the setbacks we’re making progress. Let me explain:

1st there was the Bakshal phase …when the theme of the day was a national unity government…of course that failed.

2nd we had the benevolent dictator General Zia. It was good for a while…then it faltered.

3rd we graduated to a more malevolent form of corrupt martial law and direct military rule under Ershad. That also was done in the name of stability etc.

4 th phase was a proper election and arrival of democracy. But as awami league refused to accept the election results the start for democracy wasn’t good.

5th phase a novel creature called the “caretaker government” was introduced in the hope of giving more legitimacy to elections and the resultant democracy. After 3 terms of that…that system also was loopholed.

So now we come to this latest evolution…now we have accepted representative government…so the debate is not there anymore. No one is arguing for a dictator…benevolent or otherwise….the debate is over on that. Now we’re truely concerned about how to make this democracy effective. As a result, there is two types of reforms taking place. First is the immediate tactical change…”get the criminals in jail and make sure they stay there” type of reactive actions …then there is a more proactive strategic review. Why did the system fail? How can it be insured that the failure doesn’t repeat itself in some other form? It is from this impetus that some fundamental institutional reforms are being propogated:
1. Internal reform and democratization of the political parties.
2. Legal preventation to allow convicted criminals to hold national power and limits on terms of office held
3. A constitution commision to review the effectiveness of our government structure and propose changes if needed. Naturally one of the options being considered is a presidential form of government as na alternative to the current parliamentary form.
4. A national security council is being created to formalize the military’s relationship with the civilian in a manner that extra constitutional or adhoc interventions are not neccessary in the future.
5. Purges and institutional reforms to increase the effectiveness and transparency of the bureaucracy including the police force and the education bureacracy.

All these are neccessary evolution of our constitution to make our state functional. At the end of the day that is the ONLY thing that counts. Deng Zhao Ping famously said “A cat is a cat as long as it catches mice”. I urge you to not fall in the trap of legalese or fall in love with political theoretic constructs but take a functional view of the whole matter that is results oriented and pragmatic. We’re a new country…we’ll change and evolve…this is a positive thing. Will mistakes be done…absolutely…but as long as a path for correction is provided…why worry? If changes are being made to the constitution it only means change can be made. If need be they can be made again. I am not telling you to take the constitution lightly and change it to suit every whim or desire. I am asking you to consider it a living document designed to allow the smooth functioning of the state for the benefit of its citizens’ … not some immutable word of,well, just Men:-)

Saif,

Just wanted to express my regrets over not being able to do a post on the party as brand over the weekend. It was eventful to say the least, and it seems I will be too busy in the “real” world to do any sort of research on this in the foreseeable future. If it was something I already knew about, I’d have readily written it up. If you happen to do so, please let me know.

Saif,

Yes, a commitment by major political players to a referendum on constitutional reforms would be a very good idea.

Quick history lesson.

During the anti-Ershad movement of the 1980s, constitutional changes was a stumbling block for Al-BNP agreement. AL and its allies were for the parliamentary system (as well as socialism and secularism - return to 1972). BNP was for the status quo ex Ershad. The compromise was a commitment to a ’sovereign parliament’ post Ershad. That is, the parliament elected under the interim government was trusted to settle the constitutional dispute. In the event, that is what happened. BNP wasn’t committed to the parliamentary system, and the polticial commitment made in November 1990 had no legal standing. But it had political standing, and BNP leadership chose to honour the political commitment.

This time round, if any post election referendum (or constitutional commission or any other mechanism) is to be successful, it will have to involve political commitments of all major players. Is that likely?

But why a post election referendum, Jyoti bhai? (Aside from the fact that there’s nary a word on referenda in the horizon.)

Oh, Asif bhai - no problem about the party-branding post. I might post something on parties over the weekend. Or I might just decide to wait till your branding post…

I don’t think that the present Caretaker Government (CG) can amend the Constitution – even if there is a referendum. The CG has been sworn in under Article 58C, although many constitutional lawyers will argue (with whom I tend to agree) that the formation of the CG was completely unconstitutional. The CG thus has to operate within the framework of the Constitution. And in the present situation, the only law making authority under the Constitution is that of the President (Art 93). Art 93 expressly bars the President from making any amendments to the Constitution. So even if a referendum was held and people voted overwhelmingly in favour of repeal of Art 70, the President would not have any authority to amend the Constitution accordingly. In any case, the question may arise as to under what provision of the Constitution, referendums were being held in the first place?
What I think is likely to happen is that come Dec 2008, a new party will be formed with the blessings of the present CG or that the CG will strike a deal with one of the major political parties. The 2008 elections will be rigged and the chosen party will come to power with 2/3rd majority which will then ratify all unconstitutional actions of the CG from January 2007 – Dec 2008. That I think is the only way to prevent each and every action/decision of this (unconstitutional) CG from being challenged in court and/or punitive actions being taken against the authorities involved – once the Proclamation of Emergency is withdrawn, that is.

And historically, this is what has been done by previous martial law regimes – Ziaur Rahman’s BNP won 207 seats by rigging the 1979 Parliamentary elections and ratified all the Martial law Proclamations since 1975; and Ershad’s JP ratified all Proclamations made since 1982 after being swept to power in the farcical 1986 Parliamentary elections.

Unfortunately, based on political realities, I’d have to agree with Imran. Unless of course the CG is able to create a strong executive representative of some of the reforms Syed mentioned above, purged clean of partisan bias, which as we all know, is herculean a task at best, especially given it’s timeline.

As such the only course of action that covers all the CG’s bases, would be the map charted out by Imran.

Well…I think there are other options as well. I am not so pessimiatic yet..although I agree Imran does present a plausible scenario.

As you must have seen already…Mannan Bhuiyan…the leader of the BNP-reformists have proposed pretty much all the things SOE gov wants to do. I think the message he is trying to send is…I am willing to lead a coalition that will do your bidding and save your backs. You’ll get your agenda.

Second line of defense will be the NSC itself. There absolutely no reason to think army will let its pet government be prosecuted for working on its proposals these two years. Whoever is elected will essentially be forced by the army to not go after the SOE gov and ratify their actions post facto. Democracy or not, nothing in God’s earth can nullify the influence of guns and money…we have laws and constitutions to make exercise of that influence possible in a civil manner.

Tofail-Shuranjit-Amu faction of Awami league will also want to be part of this game. They’re not getting any support from the grass roots yet unlike the BNP reformers. They’re worried. However Awami league will be wise to be part of the reform process and not be obstructionists due to simple political reality.

Since the re-introduction of democracy in BD, Awami league has never won more than 36% vote. Even with its coalition partners it can get only about 38% at best. BNP-reformed (read king’s party), Ershad JP, Rowshon JP Jamaat, LDP, Bodi dada ( B. Chow), Najiur Rahman Manju, all will support the reform process. So I see that side getting close to 65 % vote as it is. So even without any rigging…but just clever redrawing of constituencies a 2/3rds majority can be created. Also remember MPs won’t have to vote according to party line anymore in the next parliament. So Awami reformers …who have also proposed the exact same proposal with NSC and presidential form of government may get on the bandwagon as well.

I agree that you will find at least 65% votes in favour of the constitutional reform. Perhaps even more. These days every one speaks in favour of reforms - but only to save their skins. And it has paid off. It is hard not to notice the fact that the CG has decided to let pro-reform corrupt leaders off the hook.
However, the important question is whether with a return to democracy, it would be in the interests of the political parties to ratify the actions of the military backed CG?. In 1991, things worked out fine because it was in the interests of all the parties to get rid of Ershad and revert to the Parliamentary system of govt. I doubt that the political parties would feel the same way in Dec 2008, esp when you consider the fact that many of the political leaders have been harassed/detained/tortured at the hands of the army.
There’s no doubt that the statements made by Babar (frmr State Minister for Home) and Jalil have been obtained by torture. (Incidentally, a colleague of mine had one of his clients released a few weeks back. The client came back with stories of how they all heard Babar scream in his cell during interrogation). These statements will of course be retracted once things become nomal. And the ‘pro-reform’ leaders will once again rally behind their respective party chiefs, no doubt after making statements that they were under pressure from the army to draw up their reform proposals (which is most likely to have been the case).

And finally MPs WILL have to vote according to the party line, at least in the first session of the 9th Parliament when it sits to decide whether or not to ratify the CG actions. This is of course because the voting in the first session of Parliament will be regulated by the Constitution which is in force (and which contains Art 70). MPs therefore would have to heed Art 70 when they vote on the issue of ratification of CG actions.

If Parliament in its first session repeals Art 70, then of course there would be no need for MPs to tow the party line in future. But will that ever happen?

Saif,

There can indeed be a referendum before the election asking the people to ratify everything the government has done (or proposes to do). Historically, in addition to the formula Imran has suggested, transition from military rule (de facto as present or de jure as before) used referenda as well. Historically, in those referenda, the strongman received 99% approval, while practically no one actually voted in them (because the ‘no camp’ was either silenced under force or boycotted the referendum).

In the current context, if a referendum is to provide the political legitimacy to constitutional changes, that referendum will have to be credible. The ‘no camp’ will have to be given a fair chance of making their case. Since there is no ‘no camp’ visible anywhere, I don’t see this is as likely.

If the government opts for an arranged election where a King’s coalition is put together, this will create an immediate antagonistic camp. That camp will compose of those who lost out from the 1/11 change. Basically, the way ex-JSD and ALers became allies in the 1980s and beyond because they both lost out under Zia, we’ll see a new opposition emerge that will compose of yesterday’s enemies. And that group, whoever leads it (and it’s quite possible that one of the matriarchs or scion of one of the leading families will be at its helm) will attract at least a third of the voting people. That’s enough to create politics of confrontation. (Check out Rumi bhai’s blog for detailed analysis involving possible personalities - I’m outlining theoretical scenarios, he is much better across ground realities).

If the regime is sincere about constitutional changes, a far better option than an incredible referendum or an arranged election is an immediate round table conference with all major politicians from both sides. Put Hasina, Khaleda, RATS, Mannan Bhuiyan in a room, set out the ground realities for them - need for reform, the govt’s non-negotiables (exit strategy), consequences of not having an accord - and let them hammer it out. A joint declaration by the politicians agreeing in principle to reforms will be far more politically legitimate than anything minus-2/pre-election referendum/arranged election will achieve.

Imran,

My understanding of the ‘corrupt purge” process is that a blue print of the ‘most corrupt and unacceptable’ list was made by the intelligence services. All are being implicated in some charge or the other. They WILL NOT be allowed to contest the election under any circumstances. While election will not involve any overt rigging…all the nominations must be cleared with the army before the election in 2008. So the MPs will be cherry picked to insure they have a proper exit from the current situation and their agenda including the constitutional reform, NSC etc. are realized. Please realise this is not just some Generals in GHQ who decided to install this government. This government has WIDE doner support and acceptance. What they’re doing has the approval of the entities that pay for the bankrupt corporation/loss making corporation called the People’s republic of Bangladesh. I don’t think I need to say more on who they may be. Involvement of Barrister Mainul Hossain and vocal suport by Dr. Kamal Hossain is proof of that. And so long they keep high profile sensational cases and revelations going in the media…the “silent majority” will rally with them and they will be able to pander to the populist passions. The non-corrupt …I mean the “real” elite of the country…both intellectual and financial believe parliamentary democracy has failed and something new and evolved needs to replace it. So I see there are too many overlapping agendas for this enteprise to fail. I personally wouldn’t wish a return to status quo ante…as some awami leaguers dream off ( and BNP walas more silently given their recent track record)…as it would mean the complete and permanent destruction of the Bangladeshi state and its economy. Something has to give. Things are not working and the same old two ladies and their spawns surely can’t fix it.

Syed,

Don’t be so sure that the ‘national government’ phase is over. The intellectual backers behind 1/11 - the editors, CPD,Dr Yunus and the lot - were all foot soldiers or streetside cheerleaders of BKSAL. The first time that I personally heard of a national government, where the PM comes from the winning party and the deputy from the losing, was just after Erashad resigned. You know who I heard it from? Mr Matiur Rahman, then not working for any major daily and still a member of the Communist Party. The other major editor, Mr Mahfuz Anam, I heard in 2002 talking about a ‘limited intervention’, followed by’cleansing of the top leadership’, then ‘ten years of national government’. CPD and Dr Yunus and others of the Civil Society have asked for national governments on record.

And who will lead these national government? Or rather, who think that they will lead these national governmetn? Tofail Ahmed, Abdur Razzaque, Amir Hossain Amu and Suranjit Sengupta - one former communist and 2 members of the BLF - going by the acronym RATS (to their detractors) or STAR (to their supporter). They, particularly Tofail, has waited since the 1960s to lead Bangladesh. It was they who convinced Hasina to boycott the election that made 1/11 inevitable.

Quite off track from the theoretical discussion about what should happen to the constitution, and dangerously close to political speculation, so I’ll stop now.

Jyoti,

Must applaud you…much food for thought. If such a government has to be made someone as big as Yunus will have to be put at the helm. I donot see RATS being accepted by the army or the BNP as leaders of any such government. Well I think a large part of our elite want a technocratic government…but not necessarily a government of national unity. I guess we will have to wait and see.

Yes, it’s hard to see BNP leaders putting up with RATS, I’m not so sure about the army though. Also a pure technocrat government is probably too hard to impose in today’s world. But yes, a large of our elite want a technocrat government.

And the ‘ideological basis’ of such a government would take cue from another 1970s experience. It will be a mix of recognising Sheikh Mujib as the father of the nation and a commitment to Bangladeshi nationalism, commitment to the Muslim characteristic of the nation and touting the benefits of economic integration with India - this is Ziaur Rahman’s politics of synthesis upgraded for the 21st century.

Jyoti bhai,

The second last comment makes for fascinating reading! I really don’t know how I missed the obvious when I heard you on DP (or elsewhere, not sure) about Motiur Rahman’s Communist roots. Suddenly his fascination for the boot makes so much sense. One quibble, and you can label me a Yunus-bhokto for it, was Yunus really a cheerleader for BAKSAL?

Heheh… poor Tofail. He might be thwarted yet!

Jyoti,

Several practical problems with your politics of synthesis for the 21st century. Shiekh Mujib can be officially recognized as the father of the nation. Muslim characteristic/Bangaldeshi nationalism will bring it in conflict with Indian interests. Economic integration with india has several obstacles:

1. Army is very sceptical about it.
2. India is not sincere about it unless it means pure Indian benefit at almost no cost to it. There is no give and take whatsover. Needless to say that’s unrealistic.
3. The local manufacturing elite will find it very hard to survive if there is more integration with india…cause they will not have the scale to compete with indian companies
4. The Chinese, Pakistani and Saudi lobby and to a lesser extent US lobby in the corridors of power will act to prevent this. US wanta India to a powerful vassal state…..not an independent junior empire with its own vassals…cause that breeda independence from it. Realpolitik:-)

These will act as a strong impediment for any such new concoction. But if they can find someone like Yunus to lead this one party “national unity” government….my guess is they will give it a new moniker like Ayub’s “basic democracy” and Mujib’s BAKSHAL…may be “devlopment democracy” or “grameen democracy”:-) so on and so forth……then this can actually be done. The type of politics of synthesis you suggested actually is VERY SIMILAR to Yunus’ proposed objective/manifesto for his “party”.

Development democracy, that’s a great one. Too bad you can’t take out IP right on it, you’d be rich!