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Shawkat Jamil

The Way Out?

ALI RIAZ suggests ways out of the political impasse towards which the country is heading.

It is no longer a matter of speculation as to how the Bangladeshi political situation will look in coming days; we have already had a sneak preview. The events leading to the opposition's "March to Dhaka" programme on March 12 and the 90-day ultimatum declared by the BNP-led alliance were precursors of what is to come this summer onwards. It had all the elements -- suspense, abuse of power, utter disregard for public suffering and the coronation of once-discredited political parties. The government's heavy-handedness in dealing with a demonstration and the defiance of the supporters of the BNP-led opposition alliance are the clearest indications of the immediate future. While the scale of the government's effort to prevent the opposition's public gathering at Dhaka was astounding, it was neither unprecedented nor completely unpredictable. The BNP, in its heyday in power, April 24, 2004, to be precise, acted in similar fashion to stop the Awami League's march to Hawa Bhaban, the office of Tarek Zia and the unofficial citadel of power. The city was practically locked down then, as it was for two days on March 11 and 12, 2012. The actions of the ruling coalition, to employ everything at its disposal from the state machinery to party activists to incendiary rhetoric were virtually identical to what happened eight years ago, but on a far greater scale than before. The scale of the reaction was designed to demonstrate that the ruling coalition is more powerful than the previous coalition; and perhaps to send the message that it would not hesitate to go further, should that be necessary. The government insisted that it was acting to protect the citizens of Dhaka from " anarchy" planned by the opposition. Despite the suspense in the week prior to the public meeting, everyone knew in their hearts that the events which followed had been in the making since July 2011, if not before.

The issue of contention
July 2, 2011, the day the President signed the Fifteenth Amendment into law, is a watershed moment of recent history as it brought about some remarkable changes in the Bangladesh Constitution including repealing the non-party caretaker government system (CTG). The bill passed by the parliament was based on a partial verdict of the Supreme Court, but essentially was a result of the experience of the immediate past caretaker government between 2007 and 2008. The Prime Minister insisted that the annulment was for the greater good -- to protect democracy; in a speech to the parliament, Sheikh Hasina stated, "unelected people will never be given the opportunity again to assume power and destroy democracy." The BNP, which declined to participate in the process of the constitution amendment, unequivocally stated that it will not participate in an election unless it is held under a caretaker government. By September, lines were drawn on the sand, both the PM and the leader of the opposition made it clear that a compromise was out of the question (see my commentary entitled "Inconvenient Truths about Bangladeshi Politics," Forum, November 2011).

Although BNP has since made some semantic changes in its demand -- from 'caretaker government' to 'neutral, non-partisan, interim government' and back again to 'caretaker government, ' it is standing firm that it will not accept the current provision of interim government manned by the current ruling party members as stipulated in the Fifteenth Amendment. I will not re-litigate the past, as most readers are aware of the pros and cons of the CTG; the issue has been discussed in the media and in public discourse from almost all angles since the political crisis of 2006. Enough midnight oil has been burnt and enough ink has been spilled on this issue.

From experience and preceding discussion, we can have an understanding of the issue of contention between the ruling coalition led by the Awami League and the opposition alliance led by the BNP: the CTG and the next election scheduled in late 2013. While the BNP led alliance is highlighting this point, the ruling coalition has warned us that there is more to this than meets the eye. The ruling party, including the PM, has reiterated that BNP's movement demanding the CTG is a charade -- they are out to save those who are being tried as war criminals. The government constituted the International Crimes Tribunal on March 25, 2010, to try people involved in crimes against humanity during the War of Liberation in 1971. The ICT is currently trying eight leaders of the Jamaat-e-Islami and main opposition BNP on charges of murder, arson, looting, rape and other crimes; according to the press reports another six JI leaders are about to be charged. The demand for the trial of the perpetrators of crimes against humanity in 1971 had been raised for years by members of the civil society; but it did not gain sufficient traction until the past caretaker government regime.

The AL in its previous stints in power paid lip service at best, while in opposition it vacillated between lip service and embracing the alleged war criminals. The BNP, on the other hand, never entertained the idea. The BNP's close relationship with the JI since 1999 as 4-party alliance partners and members of the ruling coalition between 2001 and 2006, give some credence to the AL's allegation. The BNP and its allies have not hidden the fact that they are opposed to the ICT, although for months the BNP remained silent on the issue. Demanding the release of the JI leaders and claiming that they have not perpetrated war crimes has not helped the BNP; the war crime trial is a popular issue, particularly among the younger generation. The AL government did not insert this issue into political discourse after the election, but had included it in its election manifesto which helped secure a landslide victory in 2008. It is safe to assume that if the BNP returns to power, the trial will be stalled, if not abandoned altogether.

The AL's argument that repealing the CTG system is for the greater good must be taken with a pinch of salt; not only because it was the AL which forced the BNP to include the provision in the constitution and praised it as the safeguard of people's right to vote but more importantly the process through which it was repealed was premature to say the least. It is well to bear in mind that the complete verdict of the court is yet to be written and that the court suggested keeping the system for two more elections. But one can understand the wariness of the AL, no incumbent has won an election held under a caretaker government: the 1996 election delivered victory to the AL, the 2001 election delivered victory to the BNP, and the 2008 election, although held two years after the BNP's term was over, it was a rejection of the immediate past regime.

Two presuppositions
With the understanding of how Bangladesh reached the current political situation, what the central issue is and what the future looks like if the nation continues to travel the current path, the question that is in everyone's mind now is -- is there a way out? The question presupposes two things, however. First, the political actors, particularly the leadership of the two parties, would like to see a way out of the current imbroglio; second, a temporary resolution will provide space to look for a long term solution.

The history of the nation, particularly since 1991, demonstrates that a temporary solution neither offers sustainable machinery for systematic democratic representation nor does it encourage Bangladeshi political actors to search for a comprehensive long term solution. This is equally true about the CTG system and/or a military-backed civilian regime. Bangladeshi political actors (and perhaps a large segment of the citizenry) have shown their proclivity towards an easy and quick fix at the expense of the future. The political forces beyond these two major parties have not offered anything better either, despite their relentless criticism of the two parties and repeated calls for an independent platform for a better future.

The question whether the leadership of these two parties wants a way out of this situation is far more important than it was in any early episodes of political crisis. The recent rhetoric of the leaders of both parties gives an impression that they would like to see their party as the only option for the populace, and intend to wage a decisive battle against the other. The AL leadership seems to have concluded that the abysmal election result of BNP in 2008, its unwillingness to admit past mistakes, its alignment with the JI, and the inability to represent the issues of common concern, not to mention Khaleda Zia's maternal love for her corrupt sons, among other weaknesses, have provided them with an opportunity to marginalise the BNP forever. The BNP, on the other hand, is hoping that the mal-governance of the AL, its intolerance of dissent, economic hardship of the common people, and its lack of success in foreign policy will enable them to return to power. This will make the AL a diminished force for good, the BNP leadership expects. With this in mind, they are digging in their heels and adopting more belligerent postures accompanied with rhetoric questioning the bonafide of the other. Recent exchanges on whether Khaleda Zia received funds from the Pakistani intelligence agency ISI during the past elections and whether Hasina's election was funded by Indian external intelligence agency RAW is a case in point.

Neither the AL nor the BNP can be wished away. Changes in their leadership and their approaches are different matters; in my opinion they are long overdue, also the control of these two parties over Bangladeshi politics must come to an end for the sake of the future. But if either of them, especially the one in power, assumes that it can use state power to banish the other, they should consult the history books one more time. If anyone can understand this, it should be the Awami League. Its own existence and resurgence between 1975 and 1996 is a testimony to the failure to push a party with grassroots support into oblivion. In similar vein, both parties should remember that the Muslim League, once the most formidable force of Pakistani politics, became irrelevant in a very short span of time after 1947.

Humble proposals
Despite the reluctance of the leadership of the BNP and the AL to address the issue in earnest, the common people -- a silent majority -- want to know whether there is a peaceful way out which would save them from unnecessary sufferings. They will be happy to play their parts, if asked. Besides, on principle, their voices should be heard. However, in simple terms, there is no way to address the demand of the BNP within the present constitution, save the change of heart of the AL leadership in regard to the caretaker government and another amendment to the constitution. The changes brought about under the Fifteenth Amendment have made it impossible to have any other form of government than an interim government for 90 days prior to the election. However, for the sake of a peaceful resolution to the situation two routes can be explored before all parties reach a ''point of no return''.

Route 1:
The issue of CTG, particularly its dissolution, was not on the election manifesto of the AL in 2008. The party can argue that it did not foresee the situation as the court's verdict was yet to come. The point is well taken. The BNP's claim, on the other hand, that they are representing the majority in demanding the reintroduction of the CTG lacks substantive proof. However, they too can insist that growing participation in their programmes is indicative of their claim. The point has merit as well. But neither of these claims provide conclusive evidence. Hence, my suggestion is to gather conclusive evidence from the citizens; the best and acceptable method to all parties will be a referendum on the issue of caretaker government. The question could be as simple as whether the electorate approve of a non-partisan CTG to conduct the next parliamentary election or not.

Experts will point out that there is no provision for a referendum in the Bangladesh constitution. The original constitution did not include any, and the option introduced by Ziaur Rahman as Article 42(1A) on the question of constitutional amendment became void after the Appellate Divisions ruling on the Fifth Amendment. The highest court ruled that the Second Proclamation Order no. IV of 1978 was illegal because it was proclaimed by an illegal authority. It is not my intention to debate the merit of the provision (although I tend to believe that it provided a safeguard against a super majority in the parliament). The deletion of the referendum as a requirement for changes in the basic structure of constitution does not preclude having a referendum on issues of public interest. There is no explicit prohibition on conducting a referendum in the constitution. Given that the AL alone has the two-thirds majority a temporary clause can be added to the constitution to facilitate the process.

The experience of referenda in Bangladesh is not pleasant, I must admit. There have been three referenda since independence: May 30, 1977, March 21, 1985, and September 15, 1991. The first two were meant to provide a semblance of legitimacy to two military rulers and their programmes (Zia and Ershad, respectively) while the third was required under Article 142 (1A) of the constitution after the parliament approved the Twelfth Amendment of constitution to reintroduce the parliamentary system. The 1991 referendum did not see a large turnout -- only 35% of votes were cast. Of these, the overwhelming majority -- 84% approved the changes. The low level of participation was due to the fact that both the ruling BNP and the opposition AL agreed on the amendment. But it is highly likely that if a referendum on the CTG is arranged it will not be a simple formality. With about 20 months left for the next election a referendum in the coming months will not derail the schedule, and any steps necessary to implement the results should not face any roadblock.

Route 2:
If the parties, especially the ruling coalition, express reservations about conducting a referendum a second route can be explored. The second route is premised on the understanding that the exact composition of the interim government is not elaborated in the constitution except that the members of the government must be ''elected''. The PM's unreserved opposition to ''unelected'' government implies her acceptance of an ''elected''government of any composition. There are two ways to achieve the desired objective.

Option 1
Appointment of a cabinet from among the elected MPs of all parties. The number should be equal to the two major parties (the AL and the BNP), but smaller parties who reach a threshold of popular votes (for example, 5%) will have representation in the cabinet. Prior to the 90 days, two party leaders (the PM and the leader of the Opposition) will resign from the parliament and two non-partisan individuals will be elected unopposed in their seats to be included in the cabinet, one of whom will be appointed as Prime Minister of the interim government while the other will have important portfolios including the home ministry. These two individuals will not qualify to be a member of the cabinet and/or will not be appointed to any office of profit by the elected government in the following five years.

Option 2
Electing a new cabinet. Ten members of the parliament, five from each party including the PM and the leader of the opposition, will resign prior to the 90 days and 10 new members will be elected through by-elections who will serve as the interim cabinet. These new members will not participate in the election and will not qualify to be a member of cabinet and/or will not be appointed to any office of profit by the elected government in the following five years. The President will appoint the Chief Advisor from the newly elected members in consultation with all political parties.

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The silver lining of the current situation is that unlike 2006, there is time to address the issues. But whether the political parties have the will to resolve them is a different matter. This is their chance to demonstrate their willingness and ability to lead the nation.

Ali Riaz is professor and chair of politics and government at Illinois State University. In recognition of his international reputation as an expert on South Asian politics and Political Islam, he has been named University Professor at ISU.