Vol. 5 Num 816 Tue. September 12, 2006  

Light at the end of the tunnel?

Prime Minister Khaleda Zia has been propagating in public meetings and armed forces darbars across the country that the Awami League is opposed to the holding of the next general election under a caretaker government (CTG). Her assertions are half-truths, to say the least. In her re-election bid she is spreading venom. The issue is not CTG. At the crux of the controversy lies one person, Justice K.M. Hasan, the first claimant to the CA's position in the next CTG, who was, but for a constitutional amendment passed by Khaleda Zia's government, ineligible for the job. The AL doubts his "neutrality," the core element of CTG.

Had there been no enhancement of the retirement age of the Supreme Court judges the country would not have witnessed the caretaker controversy at all. The problem has arisen because of the attitude of the BNP that it can get away with anything with its two-thirds majority in parliament. Usually, constitutional amendments are adopted to resolve long outstanding disquieting issues, but this particular amendment has created a problem which is causing much pain and suffering to the masses, as well as wastage of precious time, energy, and resources.

This unwarranted controversy, however, can be resolved at least in three different ways -- first, through negotiation between the government and the opposition AL; second, by Justice K.M. Hasan voluntarily stepping aside; and third, by judicial adjudication whether a controversial person can become CA in the CTG as envisioned in the constitution.

Since 1990, the rein of government changed hands thrice through elections held under non-party "neutral" caretaker governments. The CTG was made an integral part of the constitution in 1996 to create a level playing field for all participating parties in parliamentary polls, to allay the opposition's apprehension of "electoral engineering" by the ruling party, and for orderly and peaceful transfer of power from one elected regime to another.

A controversy has engulfed the CTG since the retirement age of Supreme Court judges was increased from 65 to 67 by the present government. The government argues that the retirement age was raised to overcome the paucity of qualified judges in the higher courts, but the AL alleges that it was a clever move to make Chief Justice K.M.Hasan, who was once International Affairs Secretary of BNP and President's Zia's ambassador to Iraq, the next CTG chief advisor. The AL apprehends that a government headed by Justice Hasan would not be a "neutral" one, but a de facto extension of BNP rule. Therefore, the AL and its partners in the 14-party alliance, as well as a number of other opposition political parties, have put forward the demands for reformation of the CTG and the Election Commission as pre-conditions for their participation in the forthcoming general election scheduled to be held in January 2007.

The prime minister, in her response to the opposition's demands, had announced that she would consider their proposals if AL re-joins, and places its proposals in, the parliament. She also indicated that, once the proposals were placed there, a dialogue for consensus might take place outside. The leader of the opposition met the requirement set by the PM. A process of negotiation started with an exchange of letters between the secretaries general of BNP and AL. However, it stalled after several communications on the issue of inclusion of members from other FPA partner parties, particularly Jamaat-e-Islam, which the 14-party opposition combine (FPOC) consider to be an anti-liberation force and are, therefore, not inclined to sit with them for negotiation.

While most people admire the FPOC's pro-liberation predilections, they found their stance somewhat confusing. If elected members of the parliament from Jamaat and other parties were included in the government's team, they have every right to be part of it, and FPOC, in conformity with democratic principles and ideals, should not object to parleys with them. If they were not MPs the FPOC could ask for their replacement, and the government should include only those MPs who do not have a tarnished past. On the other hand, as most parties in FPOC do not have representation in the parliament their team may be composed of non-MPs, too. Further, as the BNP and the AL are dominant partners of the opposing groups their secretaries general should lead their respective teams.

If the intransigence on ether side prevents their coming to an agreement on composition of the negotiating teams, the secretaries general of the BNP and the AL may start a one to one dialogue as proposed by the business leaders, with their advisors being available for consultations if and when the negotiators required their help.

The PM, instead of giving attention to cutting the Gordian knot, is carrying out the party's usual strategy of creating an imaginary issue and then launching a hate propaganda. She has started a campaign to win support of the people, and of armed forces, for holding of the forthcoming parliamentary polls whether the AL and other opposition parties participate or not. Of course, shrewd politician that she is, she has kept options open for a negotiated settlement by emphasizing her commitment and resolve to adhere to the constitutional process.

Meanwhile, Sheikh Hasina, the opposition leader, has moved at least half-way to reach a compromise. At a briefing with the members of Overseas Correspondents Association Bangladesh (OCAB) on September 5, she brushed aside suggestions of a political crisis in the country and also asserted that: "There is no need for mediation or third-party intervention. The people of this country are enough to resolve the problems on their own." Citing Article 58 of the constitution, she opined that there are various options within the constitution to find a non-party, neutral CA to head the next CTG. It seems that both Prime Minister Khaleda Zia and Leader of the Opposition Sheikh Hasina are now on parallel tracks, but the question of appointment of Justice K.M. Hasan as next CA is preventing their tracks from merging.

Prime Minister Khaleda Zia and former PM Sheikh Hasina are sagacious leaders. They worked together in the 1980s to rescue the nation from the darkness of autocratic rule, and paved the way for the blossoming of democracy and freedom. I firmly believe they will rise above their personal and party interests for the greater national interest, for maintaining peace and harmony, and for holding a free and fair election this time, too, by resolving this controversy soon.

In case the politicians fail to resolve the caretaker controversy, the nation can be saved from the impending peril by Justice K.M. Hasan, who is reportedly a man of high integrity as well as a conscious person. When political parties, which commanded support of almost half of the population in the 2001 general election, are opposed to his assumption of the post of CA it will be difficult for him to govern the country, and hold an election, without resorting to repressive measures. He would need full backing of the armed forces and the civil bureaucracy, which may not be readily forthcoming in his case as he is not an elected leader. If he steps aside, and makes himself "unavailable" for the post of CA, the county will be spared a calamity. This gesture of his would bestow on him more glory and public esteem than his becoming CA for three months and pushing the country in the harms way.

While incorporating the CTG provision in the constitution the then BNP lawmakers had foreseen scenarios where doubts may arise about the "neutrality" of Supreme Court judges, and provided clauses in the constitution to weed them out. They even thought of an extreme situation when the president would not be able to zero in on a consensus candidate to hold the office of CA. The Article 5C (3&4) dealt with the question of judges as CA. The stipulations are that the last retired chief justice would become CA of the forthcoming CTG, and in case the immediate past chief justice "is not available or is not willing to hold the office of Chief Advisor" his immediate predecessor will be offered the job. In the event of non-availability of either of them for appointment as CA "the President shall appoint as Chief Advisor the person who, among the retired Judges of the Appellate Division, retired last."

If the politicians fail to resolve the controversy, and Justice K.M. Hasan considers it inappropriate to step aside, the president, as the ultimate guardian of the nation, will be required to evaluate very carefully the legal interpretation of the words "available" and "willing" before inviting him to become CA. Article 58C (2) of the constitution allows the president 15 days time for doing so.

According to the American Heritage Dictionary, the meaning of the word "willing" is eagerly compliant, disposed to accept; but the meaning of the world "available" may have legal tangles and, hence, is somewhat more complex. The Random House Webster's College Dictionary defines the word "available" as "suitable or ready for use; at hand;" etc. However, the American Heritage Dictionary elaborates the meaning of "available" as: having the qualities and the willingness to take on a responsibility.

The way the CTG evolved, and was incorporated in the Bangladesh constitution which gave it the legitimacy to rule the country and hold an election, arose from the trust and confidence of the major political parties. If a candidate for CA is viewed as being "partisan," the legitimacy of the process becomes compromised, and, therefore, that designated person become "unsuitable" and should be considered "unavailable" for appointment as CA of the CTG. I am of the view that the controversy and the doubts about his "neutrality" have made Justice K.M. Hasan ineligible for holding the post of CA in the forthcoming CTG.

My view is that of a layman. I call upon the experts on jurisprudence to deliberate and give their expert opinion. In any case, it would be prudent for the president to seek guidance of the Supreme Court before deciding to invite Justice K.M. Hasan to become CA of the next CTG if the controversy involving him does not end by the time the present parliament completes its tenure next October.

I foresee light at the end of the tunnel. On the day of reckoning, there would be no crisis but all smiles. All the hate campaigns would appear purposeless, all the sound and fury meaningless and the nation would march, with head held high, towards holding of a free, fair, and credible election, under a universally acclaimed neutral CTG and EC. Let democracy bloom in Bangladesh forever, and let the dream of a just and egalitarian society with every citizen well clothed, well educated and having a decent living come true in our life time.

The author is a former Secretary to the government.