Md. Shariful Islam, Assistant Professor, Dept. of Political Science, University of Dhaka, Bangladesh
The latest military coup in Bangladesh, in the guise of a state of emergency under the constitution, was staged on 11 January 2007. Almost one-and-a-half decades of democratic failure, seen in the criminalization of politics, abuse of state institutions, massive embezzlement of public wealth and, in the final stages, deadly political standoff between rival political parties over the issues of the ninth parliamentary election, provided “perceptive legitimacy” to the military controlled government. But once the military substantiated its position in government, its earlier pledge to hold a free and fair national parliamentary election by December 2008 has seemingly been relegated to the backseat, while repressive measures, widespread arrests, unilateral institutional reforms and crafty games with the political parties have become the prime agenda, raising questions both about the fairness and even certainty of the election within the stated deadline.
The fall of longstanding military autocrat General H M Ershad in the 1990 mass upheaval heralded a historic opportunity for Bangladeshis to opt for democracy. Subsequently, Bangladesh witnessed three democratic regimes through three national parliamentary elections in 1991, 1996, and 2001 respectively. All these elected regimes understood democracy in terms of a national election every five years subject to the constitution, not in terms of institutionalizing the democracy they fought for during the autocratic regime.
For further commentary on the contents of parts of this article and related issues, kindly see Md. Shariful Islam, “Political events prompting the Proclamation of Emergency 2007 in Bangladesh: A Search for Constitutional Interpretation”, Bangladesh Political Science Review, vol. 5, no. 1, December 2007).
While the autocratic regime’s persistent denial of democratic rights prompted the nation to forge an overwhelming unity, the subsequent democratic regimes virtually divided the nation into two confrontational camps. Major state institutions turned politically divided and the streets became preferable to parliament for political leaders pressing demands on the government. After 1990, political parties led by the two opposed giants, the Awami League (AL) and Bangladesh Nationalist Party (BNP), became the perpetrators of massive human rights violations, imposing devastating political programs like hartal (general strike) and blockade. Neither the government nor opposition respected the spirit of democracy; ironically democracy was invoked as a means for violent political programs. Hatred and mistrust between the political camps reached its climax over the issues of the 2007 parliamentary election, making space for the inevitable anticlimax marked by the latest military intervention.
The military-controlled regime in its honeymoon period apparently sought to wage a crusade against root-and-branch corruption, and moved to “democratize” the institutions that the democratic regimes had failed to do. It observed that had corruption not been a persistent factor, the full economic potential of Bangladesh could have been realized at a much faster rate and the benefits dispersed widely and more evenly throughout the population, rather than to a corrupt and favored few. The regime eyed salvation in a “Bangladeshi Brand Democracy”. As General Moeen U Ahmed, Chief of Army Staff, observed at the Sheraton Hotel in Dhaka in a speech on 2 April 2007 marking his first public appearance after the coup, “Bangladesh will have to construct its own brand of democracy recognizing its social, historical and cultural conditions with religion being one of several components of its national identity” (Speech given at The Challenging Interface of Democracy and Security, conference jointly organized by Bangladesh Political Science Association and International Political Science Association).
It remained for few days a point on the table as to what actu- ally had been meant by the sort of democracy the regime sought: an internationally-accepted pluralistic pattern or a military- dominated authoritarian model as has been a feature across South Asia over the past few years. Very soon the regime itself became the answer: nothing but an autocratic and extra- constitutional regime, unique in the country’s history.
The objective of this article is to critically study the background of the silent coup and the subsequent developments in Bangladesh politics, from the perspectives of democratization and human rights, and to make an appraisal of the military-controlled Fakhruddin interregnum.
Funeral of democracy under democratic leadership
Bangladesh’s constitution has been an embodiment of para- doxes: supreme respect for democracy and human rights on the one hand, and unbridled power in the hands of the “power groups”, alienated from the people, on the other. The latest fall of democracy in January 11, 2007 was, in a sense, an outcome of the partisan interpretations of the constitution by the two arch-rival political camps regarding the appointment of the chief adviser, whose appointment is determined under article 58C of the Con- situation of the People’s Republic of Bangladesh (as modified up to 31 May 2000):
(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this Article:
Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.
(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this Article:
Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.
(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this Article.
(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.
On the dissolution of the eighth parliament and the expiry of the BNP-led four-party alliance government of Khaleda, the president was supposed to invite the immediate past Chief Justice of Bangladesh K M Hasan to hold the office of the chief adviser of the Non-Party Caretaker Government, as per the above options. Meanwhile, tension spread across the political parties that the alliance government had placed partisan persons throughout the administration to make sure that it would be favoured in the upcoming general election. The AL believed that the BNP regime had increased, while in power, the age limit of Supreme Court judges from 65 to 67 so that the office of the chief adviser would go to K M Hasan, who had been a BNP man before his profession as a judge. At least three persons, including two alliance leaders, were killed and more than 200 injured as violence flared up in the capital city and elsewhere as power was set to be handed over from the four-party ruling coalition to the caretaker government, and the previously launched BNP-AL dialogue on electoral reform proposals failed (The New Age, 28 October 2006). The deadlock eased after K M Hasan formally expressed his unwillingness to take the post amid massive political turmoil on his perceived political affiliation.
The situation took a new turn with the president coming up with the proposal that he would swear as the chief adviser of the caretaker government under the constitutional provisions and the AL rejected the proposal of the “BNP-made president”. The AL argued that the president had bypassed the constitutional obligation to invite two more constitutionally deserving persons before him, namely Justice Mahmudul Amin Chowdhury and Justice Hamidul Haque. The BNP-led alliance stressed that Mahmudul Amin Chowdhury was not at all the next retired chief justice before K M Hasan and rather it was Mainur Reza Chowdhury, who had already died. The alliance leaders also argued that the third option of the constitution, the last retired judge of the Appellate Division, M A Aziz, was holding a constitutional office as Chief Election Commissioner and that Hamidul Haque who retired before Aziz falling into the fourth option of the constitution expressed his unwillingness as all the parties did not agree on him (The New Age, 30 October 2006).
In a move to the fifth constitutional option, October 29 daylong talks between the president and the four major political parties (BNP, AL, Bangladesh Jamaat-e-Islami, and the Jatiya Party) were aborted as the parties failed to reach a consensus on an honest and neutral person. So, finally the president chose to be sworn in as the chief adviser to the caretaker government, with the AL abstaining from attending the swearing-in ceremony.
Since the incorporation of this option into the constitution in 1996, this was for the first time that the president took over as the head of a caretaker administration. It was “a point of no return” and any failure on the part of the government would leave devastating consequences and pave the way for the army to step in. Interpretation of the constitutional provisions by lawyers like Dr. Kamal Hossain, Barrister Amirul Islam and Barrister Rokanuddin Mahmud in favor of the AL-led alliance with which they were affiliated (for example they named Justice Mahmudul Amin Chowdhury as the second option), and the president’s move to grab power in favor of the BNP-led alliance, led to unusual power politics, with the “Chief Adviser in Bangabhaban”, that is, the office-cum-residence of the president. Violent clashes during the transition meanwhile took the lives of around 26 people and left several hundred injured across the country.
According to sources in Bangabhaban, the president asked the attorney general, the chief law officer of the country, to advise him on whether he would appoint Justice Mahmudul Amin Chowdhury, who retired before Justice Mainur Reza, or appoint a retired judge of the Appellate Division. Mohammad Ali immediately sent his written legal opinion on the issue to the president, observing that the president should go by article 58C(4), as the Constitution does not have a provision to appoint any other chief justice other than last retired two (The New Age, 30 October 2006).
Constitutionally a titular head of the state, the president en- joys significant power under the same constitution during the interim period of 90 days of the caretaker regime. One of the grounds making the president all-powerful is found in article 61, which reads:
The supreme command of the defence services of Bangladesh shall vest in the President and the exercise thereof shall be regulated by law and such law shall, during the period in which there is a Non-Party Care- taker Government under Article 58B, be administered by the President.
Now thanks to the assumption of office by the Chief Adviser, constitutionally he became the source of overwhelming power but functionally the most meek and submissive one to his political master, ex-Prime Minister Khaleda. But the president in an unprecedented move to gain a non-partisan image appointed ten advisers from the two major political camps. When under the constitutional stipulations the president was not supposed to appoint the ten advisers from the lists of nominees provided by the two political camps, why did he do so? This was partly a trust-gaining measure but it also spoke to the total collapse of trust among the political parties. It was widely perceived that now the two wings of politically appointed advisers in a non-partisan government would indulge in clashes over reforms of the election commission. The New Age made an important prediction:
The Presidential consideration, apparently a pragmatic one, may well prove to be suicidal for the President at the end of the day, no matter how constitutionally powerful he is. Pragmatic because, the President, under the present dispensation, would have the scope to make efforts to resolve the conflicts of opinions of the BNP and AL policymakers within the cabinet by way of having constructive dialogue between their representatives. Yet, the composition could prove counterproductive, because the Advisers of either group might even quit the government, at the call by their political mentors, in case they fail to forge effective negotiations within the cabinet on disputed issues – the most crucial among them being the reconstitution of the Election Commission. [Nurul Kabir, “Cabinet needs to weather EC storm”, 2 November 2006, emphasis added]
Soon the AL came up with another movement, pressing for Chief Election Commissioner Aziz to quit. For the AL this was a political game on the ground that Aziz was appointed by the Khaleda regime, and if it met success in another movement on this issue it would mark the party’s overwhelming command of politics in the country. In the typical political culture of Bangladesh, fortune in the election has always favoured the party most active in the streets rather than in parliament. It is also typical that whatever is articulated by one political alliance must be opposed by the opposite alliance. Consequently, very soon Aziz discovered himself backed by the BNP-led alliance in the form of street movements in favour of his constitutional post. Ostensibly embarrassed, Aziz reiterated his non-affiliation with any of the political camps and reminded the opponents about his unquestioned honesty while serving as a Supreme Court judge in the past.
The relevant constitutional stipulations on the election com- missioner include article 118(3), which reads that, “Subject to the provisions of this Constitution the term of office of an Elec- tion Commissioner shall be five years from the date on which he enters upon his office” The next three clauses read:
(4) The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law.
(5) Subject to the provisions of any law made by Parliament, the conditions of service of Election Commissioners shall be such as the President may, by order, determine:
Provided that an Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court.
(6) An Election Commissioner may resign his office by writing under his hand address to the President.
The major allegation against Aziz put forward by the AL was that he was going ahead with a controversial voter list. The AL asked why the commission should not update the 2000 voter list rather than make a fresh one. Following a writ petition to the Supreme Court, the court issued a guideline asking the Election Commission to update the 2000 voter list. Aziz had to go on with updating the previous voter roll rapidly to meet the constitutional obligation for election within the 90-day time span of the caretaker regime, resulting in huge flaws and prompting the AL-led alliance to gain more strength in its movement. Dhaka turned into a phantom city of feuds, deaths, anarchy and violent political programs. Aziz stepped aside in the form of three months official leave to extricate himself from the electoral process. The AL-led alliance claimed a victory for its street movement while the BNP-led alliance saw a victory for its constitutional backers.
The AL and its allies now launched a sit-in around Bangabhaban to press for the resignation of the president from the post of chief adviser, the total reconstitution of the Election Commission, and cancellation of the already-declared January 22 poll date. It justified its movement when the Bangladesh chapter of the US-based National Democratic Institute (NDI) unveiled its survey reports on the hurriedly prepared updated voters’ roll, finding that some 12.2 million or 13 per cent of the names were either excess or duplicates. The survey on the “integrity of the voters’ list” revealed that of the 13 per cent, six per cent were excess voters enrolled incorrectly and seven per cent were duplicate registrations, which meant the names were listed twice or more. The survey also found that 2.5 per cent of eligible voters were left out of the roll. The NDI survey identified migration of people as a major cause for the flaws on the list, which contained about 93 million voters; however, neither the US Ambassador in Dhaka, Patricia A. Butenis, nor the NDI observed fraud or manipulation as the cause of excess registration (The New Age, 3 & 4 December 2006). In any event, the AL and its alliance invoked the NDI report to back up their cause and finally went so far as to boycott and resist the January 22 parliamentary polls and press home the demand for the President to quit. Vio- lent resistance in the form of ceaseless blockading of transport, laying siege to Bangabhaban and vandalism left some 70 people dead across the country. The death toll of hospital patients, preg- nant mothers, people fatally injured in accidents and others who died incidentally to the turmoil remained beyond the statistics.
In hindsight, the military intervention, in the fall of a perverted democracy and massive violations of human rights by political parties, may seem inevitable and expected; however, this would be to omit the evidence of how some military generals laid the groundwork to legitimatize their assumption of power.
The disguised coup takes place
It never seemed like a coup! A state of emergency and a reshuffle of advisers of the caretaker government all happened seemingly under the terms of the constitution.
The president at midnight on 11 January 2007 resigned from the post of chief adviser to the caretaker government, declaring a state of emergency after 16 years since the restoration of democracy through a mass upheaval. Nine advisers to the caretaker administration simultaneously resigned from their posts while Justice Fazlul Haque, the senior most among the advisers, was given charge as chief adviser. The president said that a new council of advisers would be reconstituted in a day or two to hold a credible election within the “shortest possible time”, as the January 22 election had been postponed (The Daily Star, 12 January 2007).
The declaration of emergency came after daylong hectic negotiations among the political parties, diplomats and caretaker government advisers to resolve the growing political crises following president’s assumption of the office of chief adviser on 29 October 2006. The declaration came in the wake of widespread international criticism about the president’s defiant attempt to hold the January 22 polls. Officials of the United Nations and European Union had already made it clear that they would not support or monitor the election due within 11 days (The New Age, 12 January 2007). A circular issued by Bangabhaban said, “As it is to the President’s satisfaction that a grave emergency exists in which the security or economic life of Bangladesh is threatened by internal disturbance, a Proclamation of Emergency was issued throughout the country until further order under Articles 141A (1), (2), (3), 141B, 141C (1), (2) and (3) of the Constitution” (The Daily Star, 12 January 2007). The president can proclaim a state of emergency using his authority as provided under article 141 of the constitution.
The emergency automatically suspended all fundamental rights as enshrined in the constitution. According to article 141B of the constitution, its proclamation suspends operation of the fundamental rights to freedom of movement, freedom of assembly, freedom of association, freedom of thought and conscience, and of speech, freedom of profession and occupation and rights to property, all enshrined in articles 36, 37, 38, 39, 40 and 42. Ar- ticle 141C(1) stipulates that while a proclamation of emergency is in operation, the president may, on the written advice of the prime minister, suspend the right to move in any court for the enforcement of such of the rights conferred by part III of the constitution and keep them suspended for the period during which the proclamation is in force or for a shorter period as specified in the order. Every order made under the article must be laid before parliament under article 141C(3). The president has also been provided with the power to revoke the proclamation of emergency at any time according to article 141A(2)(a).
While the AL-led alliance observed the declaration of emergency as “so far so good”, the BNP and its alliance asked the government to take effective measures to hand over power to the elected government soon (The New Age, 13 January 2007). While Khaleda and the BNP-led alliance leaders abstained from attending the new chief adviser’s swearing-in ceremony, Sheikh Hasina and the AL-led alliance leaders attended the function. This was an event diametrically opposed to that of 29 October 2006, when President Iajuddin Ahmed took over as chief adviser. The BNP and its alliance attended the swearing-in ceremony while the AL and its alliance abstained. The president reconsti- tuted the non-party caretaker administration by appointing a former central bank governor, Dr Fakhruddin Ahmed, as the new chief of the caretaker government on 12 January 2007 and other advisers within the next few days.
However, the political leadership still didn’t comprehend the game being staged and the players behind it. Actually, some ambitious generals had been engineering a military takeover from the very beginning of the crisis and were looking forward to seeing the crunch come rather than its avoidance. According to a Daily Star report of 14 November 2006, almost two months prior to the declaration of emergency:
On Sunday (November 12, 2006), President and Chief Adviser Iajuddin Ahmed decided to deploy army across the country in aid of the civil administration to maintain law and order. A letter was sent to the divisional and deputy commissioners to facilitate matters for the military forces. The letter signed by Home Secretary SM Jahurul Islam reads, ‘The government has decided to deploy military forces to aid the law enforcement agencies in maintaining the law and order.’ But a late night handout signed by a joint secretary of the home ministry said: ‘In fact, regarding the army deployment the government has decided that the troops might be deployed after taking into consideration the situation. Since no such situation has arisen, the decision to deploy the army has not yet been taken.’ The President/Chief Adviser did not mention even for once the decision to deploy army during two and half hours of his meeting with the Advisers. Just when everyone was preparing to sign off, he said he wants to invite the home secretary to hear about the latest situation regarding the 14-party blockade. The home secretary came in and casually said the Chittagong Port has become inoperative and this may necessitate military deployment. The suggestion greatly annoyed the Advisers, who said the implications of any such decision might be very grave both nationally and internationally. The secretary did not tell them that the decision to that effect had already been made and communicated to the local administration. The Advisers left the meeting with the impression that it was just a plan and came to learn about the truth from the media afterwards.
The content of the news appeared somewhat peculiar and implied something undiscovered beneath the surface, embodied in a New Age news commentary of the same day:
Government insiders have further claimed that the decision to rescind the order was also fuelled by the military’s refusal to take to the streets. The sources claimed that the military top-brass on Sunday evening categorically advised Iajuddin that they should only be called in to maintain law and order if the regular law enforcing agencies failed to do so.
The generals’ ambition appears more evident in an International Crisis Group report published in the aftermath of the declaration of emergency:
As party leaders were meeting the diplomats, the armed forces chiefs presented the President with three options: order Khaleda and the BNP, in front of the generals, to put an end to election rigging; declare martial law; or impose a State of Emergency while postponing the elections. As the President was unwilling to confront his political master, and the military was unwilling to go for full martial law, they opted for a State of Emergency. The generals forced Iajuddin Ahmed to resign as Chief Adviser (although he remained President), dissolve the Care-taker Government, impose the Emergency on 11 January 2007 and delay the January polls. The next day, the army installed a new Care-taker Government headed by Fakhruddin Ahmed, a former central bank governor and World Bank official. [“Restoring Democracy in Bangladesh”, Asia Report No. 151, 28 April 2008]
The Dhaka University resistance and government responses
The first resistance to the military-controlled regime came from the University of Dhaka (DU). The army generals, aware of the history of resistance from the university and its role in shaping mass upsurges against tyranny and misrule at all decisive points, deployed a number of troops in a makeshift camp in the DU gymnasium grounds from the early days of its takeover.
On 20 August 2007, almost a hundred students and teachers were wounded as they fought battles with the police, protesting against the presence of the army on campus. The acting vice chancellor and the proctor of the university were also injured in police action as they came to the spot seeking a solution. The initial cause of the demonstrations was an incident when army personnel mercilessly beat three DU students and humiliated a teacher over a petty dispute concerning comments passed by spectators watching a soccer match at the university ground where the army camp was situated (The Daily Star, 21 August 2007). The students’ protest continued for the next few days, prompting the teachers to stand beside them. The army withdrew its camp from the DU campus but the protest advanced to demand the lifting of the state of emergency and pressure for democracy. Under curfew, the army went for brutal assaults on students and teachers. Four prominent DU professors and some from Rajshahi University (RU) were detained and charged with conspiracy. In 33 cases filed with police stations across the country, more than 87,000 people were charged.
The allegedly military-influenced courts in Dhaka and Rajshahi placed the professors on remand after they were picked up from their campus residences on charges of breaking the Emergency Power Rules. General Secretary of the Dhaka University Teachers’ Association (DUTA) Professor Anwar Hossain, DU Social Science Dean Professor Harun-or-Rashid, former RU Vice- Chancellor Professor Saidur Rahman, Convener of RU Progressive Teachers’ Society Professor Abdus Sobhan and Management Department Professor Moloy Kumar Bhowmik were put on remand. This was the first-ever incidence that university professors were taken to remand due to their protest against any government standpoint.
The detained professors were released subsequently in an unprecedented “Presidential Mercy” even though the detainees had not begged for that, only when the military-controlled government smelled danger manifested in subsequent students’ moves to free the detained teachers and students. The torture inflicted on a university professor described in his recent publication Kath Gorai Dhaka Biswa Bidyaloi: Remand o Karagarer Dinlipi (Dhaka University in the Dock: Daily Notes of the Remand and Prison) speaks much about what happens to common people while in the remand:
Unknown person: Ei……..!!! [derogatory expression], what’s your name? Professor Anwar (blindfolded): Dr. Md. Anwar Hossain.
Unknown person: Say [serious humiliating expression], what’s the meaning of your name?
Professor Anwar remains silent.
Unknown person: Say [same humiliating expression], what is the meaning of Dr.?
Professor Anwar: Doctor of Philosophy.
The unknown person hurled abuse and hurt Professor Anwar’s right arm with a baton!!! (p. 28)
The president-versus-prime-minister power balance
The army chief commented at the Sheraton on 2 April 2007 that the country has “tried both the Presidential and the Parliamentary forms of government. Now we should try to set up a balanced system giving more power to the President, Ministers and other agencies to enable them carry out their tasks… Power must be balanced, not tilted towards any family and dynasty.” That was the beginning. Then the general apparently stopped, but seminars and symposiums that were allegedly sponsored by the military marked Dhaka’s aristocratic hotels, as did so-called think tanks. A seemingly military-backed paper by S M A Sayeed presented in Dhaka observed the generals’ idea to be a logical one and came up with some recommendations, among them that:
1. Prime Minister shall not prepare and send a penal of his/her sole choice for any constitutional post to the President; instead, there shall be a commission to deal with matters related to appointment to constitutional posts and President shall appoint such persons in consultation with the Prime Minister.
2. President shall have 10 percent reserve quota in the administration which he will fill in consultation with the Prime Minister with qualified, experienced and honest persons, and 10 percent quota in the cabinet which he will fill, with or without consultation with Prime Minister, with qualified, honest and non-partisan persons.
3. President shall have the prerogative of declaring Emergency in the whole or in parts of Bangladesh whenever the security and economic life of Bangladesh will be in jeopardy without being advised by the Prime Minister.
4. President being the Commander-in-Chief of the armed forces shall meaningfully be consulted regarding appointments, transfers and promotions of the officers not below the rank of Brigadiers or equivalents. Even his consent may be binding while selecting the service chiefs.
5. Appointments, transfers and promotions of High Commissioners/ Ambassadors shall not be the sole domains of the Prime Minister; rather these shall be made through meaningful consultations with the President.
6. A Constitution Commission needs to be constituted to look into details to device a practicable, up to date frame of balance of powers between the President and the Prime Minister in the Parliamentary system.
[“Striking a Balance of Powers between President and Prime Minister”, at a seminar on Constitutional Reforms: Rationale and Strategy, 26 July 2007, Spectra Convention Center, Gulshan]
The proposed “Constitution Commission” exists nowhere in the constitution and stands completely ultra vires. Article 142(1) of the constitution clearly stipulates that:
Notwithstanding anything contained in this Constitution-
(a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament:
Provided that-
(i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution;
(ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament;
(b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period.
Again, article 142(1A) stipulates that any amendment regard- ing the preamble or article 8 or 48 (pertaining to the Office of the President) or 56 (pertaining to the prime minister and other min- isters) will be subject to a nationwide referendum referred by the president.
In the face of severe criticism, government sources started to argue that the government might constitute such a Constitution Commission and the commission might only prepare a recommendation. They argued that based on the groundwork of such a commission, the next elected parliament would go ahead. Such statements added to the widespread suspicion that the military regime was preparing for to a rubber stamp parliament through poll engineering.
All this prompts a simple question: is the Bangladeshi army proceeding towards a Pakistani model? Because the military- sponsored provisions in the Constitution of Pakistan provide that the cabinet should hold office at the pleasure of the president, President Golam Ishaque Khan could dismiss the elected regime of Benazir Bhutto. The same president attempted the same thing against the elected government of Nawaz Sharif but was foiled with a historic verdict of the Lahore High Court.
If the idea gets implemented, the army, an already overdeveloped institution, will surpass all others in Bangladesh on the pretext of balancing power between the president and prime minister. It will totally destroy the democratic polity with a de facto “military-prime minister” power (im)balance. Some power-hungry generals will influence the Office of the President even by installing a handpicked person in the post. In that case the military will turn it into an institution diametrically opposed to the people’s interest, engendering a new power equation: prime minister for the people and president for the vested quarters in military. In a parliamentary system, the question of a power balance between the president and the prime minister is absurd. The point should be how to make the Office of the Prime Minister more accountable to parliament. A drastic change in the Parliamentary Committee system could be an effective and an acceptable measure aimed at a more accountable prime minister.
Some aspirant generals will, most probably, choose to amend article 48(3) of the constitution, rendering the president independent of this article in terms of article 62, which reads:
(1) Parliament shall by law provide for regulating-
(a) the raising and maintaining of the defence services of Bangladesh and of their reserves;
(b) the grant of commissions therein;
(c) the appointment of Chief of Staff of the defence services, and their salaries and allowances; and
(d) the discipline and other matters relating to those services and reserves.
(2) Until Parliament by law provides for the matters specified in clause (1) the President may, by order, provide for such of them as are not already subject to existing law.
But this jurisdiction of the president is not unconditional, as article 48(3) stipulates that, “In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 95, the President shall act in accordance with the advice of the Prime Minister” (emphasis added). Hence, if the power of the president in article 62(2) is independent of the prime minister’s advice as stated in article 48, some generals will desperately abuse the Office of the President, a non- representative and non-accountable office, unlike that of the prime minister. It may, however, be sensible to empower the president in terms of article 106 of the constitution, which reads:
If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.
The president can be empowered through an amendment in article 48(3) so that he can refer a vital question of public importance to the Supreme Court without any advice of the prime minister. Only an elected parliament can undertake such an initiative.
The question of the National Security Council
Apart from the president-prime minister power balance, another proposed innovation aimed at protracted military dominance is the proposed National Security Council (NSC). The Bangladesh Institute of Leadership and Security Studies (BILSS), observed the following factors in favour of establishing such an institution (Ataur Rahman, “National Security Council: Bangladesh Context” in Roundtable on National Security Council, organized by BILSS, Dhaka, 29 March 2008):
a) Geo-strategic location, stage of economic development, unique demographic profile pose multifaceted security challenges: political violence, destabilization, religious extremism, cross-border crimes, arms trafficking, drugs are more serious than inter-state conflict that also exist.
b) Bangladesh’s security traffic is already heavy, and getting heavier as we are trying to harness our natural resources, like oil, gas, coal and water, and deal with energy, food and environmental security.
c) Weak capacity building in state institutions, limited vision of political leadership and incapacitated political institutions, particularly Parliament and parties have led to a situation that needs NSC as an integrated leadership model for national security and stability for sustained development.
As BILSS advocates in terms of the proposed NSC:
a) The NSC should ideally be a part of the constitution with a new article inserted, or could be enacted as an ordinance now and be incorporated into the constitution later.
b) If Bangladesh continues with a parliamentary system, the NSC should be located with the president to create an appropriate check and balance with the prime ministerial power.
c) The NSC needs to work with operational autonomy under overall civilian control.
d) In Bangladesh, there is a need to expand the NSC to include political leaders, military leaders, intelligence agencies, bureaucrats, businessmen and experts or eminent persons. It should be within the range of 9-13 persons.
However, BILSS concluded that such a body ought to be constituted in consultation with the people and the keynote speaker of the roundtable at which these points were presented, Professor Rahman, concluded that the discussants’ verdicts were in favour of the national parliament supervising the NSC. A Daily Star article by a retired army official, Shafaat Ahmad, advocated some legislative safeguards to be incorporated into the NSC provisions, including that the prime minister be bound to consult and be advised by the NSC and that preparation of NSC directives be mandatory once the prime minister has given a final decision (“National Security Council for Bangladesh”, 24 March 2007).
Most of the arguments on the NSC from the ambitious generals start with an innocent face, but end with a proposed structure that would supersede the Office of the Prime Minister. In a parliamentary democracy, while people’s aspirations are manifested through electoral choice, the proposed NSC structure demonstrates mistrust towards political or representative leadership.
All countries need institutions to address vital security issues. The idea of NSC, first initiated in the US in 1947, was substantiated through the hierarchical restructuring of President Eisenhower in 1953. The UK, India, Singapore, Malaysia and Korea have devised NSCs to address their respective issues. None of these countries let the NSC supersede the primacy of the chief elected representative of the country. In contrast, Turkey and Thailand have devised so-called civil-military relationships undermining the supreme elected posts that have ensured repeated setbacks to democracy.
The military-controlled caretaker government of Bangladesh seemingly opts for an NSC that would surpass the supremacy of the Office of the Prime Minister and be located with the Office of the President. In a parliamentary arrangement, such a setup is an obvious threat to democracy. Nowhere in the arguments advocating the NSC has its accountability been made clear. If such a body were installed, Bangladesh would enter a vicious circle leading ultimately to bloodshed in order to revive democracy.
National Human Rights Commission within a
police state?
An effective human rights body has been in the rhetoric of successive regimes. The military-controlled government has approved the long awaited National Human Rights Commission Ordinance 2007 (Ordinance No. 40 of 2007), during the most protracted state of emergency in the country’s history. This body can investigate human rights violations, and is empowered under its rules 15 and 16 only to settle issues or refer them to court. Sub rule 3(1) of the ordinance reads, “The ordinance having been enforced, as soon as possible, a commission named National Human Rights Commission will be constituted in order to comply with the objectives of, and according to the rules of this ordinance.”
Now the question remains, how the regime will coordinate between the irrationally protracted state of emergency and internationally accepted human rights standards. The military- led joint forces arrested more that 50,000 people, mostly without warrant, in May 2008, prompting human rights organizations across the world to strongly protest the government’s moves (The New Age, 3 July 2008). The government has, in contrast to the rights commission ordinance, drafted a Police Ordinance providing the police with an unbridled power, apparently to suit the needs of the military regime. The home ministry has, however, asked the Police Headquarters to consult with stakeholders on the draft at thana, district and divisional levels.
Md. Golam Rasul, an advocate of the Judge Court, Dhaka, alleged in a letter of 20 March 2008 to the chief adviser that police have been compelling astute and articulate persons at grassroots levels to make favourable statements supporting the draft ordinance. Frightened people either stay quiet or give supportive opinions, fearing undue harassment and false cases. The draft ordinance empowers police to break into and raid any private compartment without a magistrate’s supervision, in contrast to article 32 of the constitution, providing protection of right to life and personal liberty. The magistrate’s power under the Code of Criminal Procedure sections 127 – 129 to permit public meetings and processions has been reduced and vested on the police.
Police action in the absence of a magistrate will provide them with an unbridled power and the space to abuse it. The police have been assigned, under rule 3(D) of the draft ordinance, to enforce the fundamental rights of the people, trespassing on the High Court’s authority provided under article 102 of the constitution. There is also no civil control to probe the events of shootouts. A “security cell” to entertain allegations against the police has been proposed, but only from within the organization’s own chain of command, which is not reasonable.
The legitimacy question
Article 58B(1) of the constitution defines the caretaker government:
There shall be a Non-Party Care-taker Government during the period from the date on which the Chief Adviser of such government enters upon office after Parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of Parliament. [Emphasis added]
The first “conceptual assault” on the caretaker government came from the president when he appointed the party-nominated advisers to demonstrate his impartiality to the confronting political camps. While the constitutional wording “non-party” only makes sense in an apolitical-neutral regime for a temporary period, the president sought a political-neutral one. Despite the political support in favour of the presidential move, it sowed the seeds for further assaults on the very concept of the caretaker system.
However, what is the constitutional status of the post- emergency military-controlled regime? Since the first address to the nation in January 2007, the chief adviser together with his fellow advisers and the chief of armed forces have been calling it a caretaker regime under the constitutional provision; however, the constitutional provision doesn’t allow them to operate beyond the defined routine jobs. Article 58D reads:
(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.
(2) The Non-Party Care-taker Government shall give to the Election Commission all possible aid and assistance that may be required for holding the general election of members of Parliament peacefully, fairly and impartially. [Emphasis added]
The government, in contrast to the Constitution, promulgated almost 70 ordinances almost all of them beyond the routine jobs and electoral duties.
Again, Article 141A(2)(c) reads:
[A Proclamation of Emergency-] shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament:
Provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-constitution, unless before that expiration of the meets after its re-constitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament.
The military-controlled regime is simply extra-constitutional as it exceeded the period of 120 days long ago. The nation will confront a fresh constitutional impasse if the first session of the next-elected parliament refuses to approve the ordinances issued by an extra-constitutional government. The elected parliament itself will be a somewhat legitimate body emerging from an illegitimate government. If the parliament tends to question its own birth, it will need to arrange a fresh national election.
The legality of the state of emergency proclaimed on 11 Janu- ary 2007 has already been challenged in the High Court. The first-ever writ petition has been filed challenging the proclama- tion of emergency, and two Emergency Power Orders suspending fundamental rights, the Emergency Powers Ordinance and the Emergency Powers Rules (The New Age, 15 July 2008).
Concluding remarks
For some 20th-century scholars, militaries in power were viewed as modernizing agents, and an inevitable part of newly independent states in the developing world. Such assessments have been proven false when these nations have experienced bloody mass upheavals pressing for full-fledged popular democracy. Over several centuries of political experiences in the west and elsewhere in the world, it has been concluded that democracy has no alternative, and that the military, bureaucracy and other such institutions must be subservient to elected popular institutions.
The so-called civil-military relationship in “Bangladeshi brand democracy” is nothing but an anti-democratic innovation. Bangladesh is now in a more critical time than before the military takeover, because previously it faced turmoil between two stakeholders but presently an anti-democratic third party is claiming a stake too. Corruption in the army top brass most probably is nothing less than it was among the politicians, but it is invisible because of the absence of accountability, which makes it more dangerous. If the military appears to be the momentous solution, why did Bangladesh have the 1990 mass upsurge against nine years’ of military autocracy?
Democracy may go through an uneven trajectory in the initial phases, and correct mistakes over the course of time. Most of today’s consolidated western democracies faced such predicaments along with developments. Failure in democracy leads to perfection, but compromise leads to its demise. Democracy and human rights in Bangladesh must be safeguarded by electoral democratic institutions, through shifts in corrupt leadership in political parties, and never by military rulers.
Beyond the scholarly debates, evaluation of a given regime is widely perceived in terms of, first, the way it assumed power; and second, its effectiveness. The military-controlled Fakhruddin interregnum, in terms of its behavioural patterns, will be placed in the history of Bangladesh as an abortive project undertaken by some military and civil bureaucrats, alienated from the people. The regime is likely to hold the ninth national Parliamentary polls on 29 December 2008 as per the Election Commission’s schedule. A burning question, however, remains as to whether it will be a fair election when the Election Commission has already lost its credibility over a number of controversial actions, including secret dealings with the government and endeavoring to split a major political party.
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article 2 December 2008 Vol. 7, No. 4