Justice for Democracy
Zillur R. Khan writes on social fairness and the political process
John Rawls of Harvard University, a highly acclaimed political philosopher of the last century, defines justice as basic fairness in multi-dimensional interactions involving humans and their institutions, balancing democracy with the striving for security. (John Rawls, A Theory of Justice. Harvard University Press, 2003).
Thus the fairness principle contributes to societal stability and helps to create a common ground on which political communities, with the nation states being their highest expression, can build an ideology of understanding and cooperation. Bangladesh's success in charting out a close strategic relation with India, and Pakistan's failure to accommodate legitimate demands of the Bengalis, could be premised on this principle of fairness.
In this context, freedom and political autonomy become integral parts of justice that "specify the fair terms of cooperation they [citizens] give themselves when fairly represented as free and equal persons." (John Rawls, Ibid). The emergence of Bangladesh epitomised the dismal failure of Pakistan's leadership to understand and act on this fundamental human value of justice.
Justice has been the driving moral force that led to a "people's war", creating a sovereign democratic Bangladesh with immense possibilities. But without a deep commitment of the leadership to justice as the basic principle of fairness in both policymaking and policy implementing, i.e. governance, the potentials for advancement would remain static.
Ensuring human rights and the due process of law -- the two most important dimensions of justice -- could transform the static into a dynamic state of just policies and good governance. In that context, the legal system, which still carries the baggage of colonialism, must be reformed.
Repealing the Special Powers Act, which blatantly violates the due, process of law, could be the top priority of reformers. Justice also demands giving everyone his due and therefore reparations are due to those who bore the brunt of liberation war and subsequent human rights violations. By the same token, punishment must be meted out through open court trials to those found guilty of committing what a former US consul general termed "selective genocide" (Archer K Blood, <>The Cruel Birth of Bangladesh: Memoirs of an American Diplomat<>, UPL, 2002).
Those found guilty as abettors but are repentant and seeking forgiveness could be considered for mercy. Upon the recommendation of a "Repentance and Mercy Commission" -- call it by any other name -- the president could exercise his/her constitutional authority to grant pardon.
Justice for democracy needs a basic structure of society where "main political and social institutions of society fit together into one system of social cooperation, and the way they assign basic rights and duties and regulate the division of advantages that arises from social cooperation over time … political constitution with an independent judiciary … the background social framework within which the activities of individuals and associations take place." (John Rawls, <>Justice as Fairness: A Restatement. Ed<>. Erin Kelly. Harvard University Press, 2003).
This "background justice" is needed for a well-ordered society where advantages (power and resources) can be divided and distributed fairly. Upholding this fairness principle would involve limits on power, preventing excessive concentration and resulting misuse by individuals, groups, associations and institutions. At a basic political level -- the local level of government -- decentralisation of administrative power addresses this issue. It can prevent misuse and as well motivate local people to engage in just cooperation to develop from bottom up.
Indeed, local "Home Rule" empowers local government to create/modify their charters and run their affairs without approval of central legislature or bureaucracy, subject to the constitution of the state. For example, the movement for devolution of power to local government culminating in the "Home Rule Act" following the American Civil War changed the destiny of the United States of America for better. It gave more power to local governments, e.g. village, city and county councils, school boards, municipalities and corporations, in choosing their form of governance relating to education, law enforcement, taxing and other substantive matters, which created a powerful force for self help and development. Checks on power involve not only decentralization but also empowerment of socio-political and economic institutions.
A good start for Bangladesh is to revive and strengthen local institutions, particularly local government. Empowering local government -- politically and fiscally -- through free and fair elections would reduce dependence on the bureaucracy, thereby helping the people at the rice-roots level to take initiative in defining and solving a myriad of local problems. The self-help and creativity thus engendered could become a major force of nation building. It could also lead to greater economic development in rural areas setting perhaps a new trend of reverse migration from urban to rural areas, significantly narrowing the urban-rural divide and the resulting socio-economic-political problems facing many of today's developing countries, including Bangladesh.
For a just exercise of powers definable limits must be delineated by a legitimate structure and process. It can be done by the constitutional requirement of accountability and transparency in not only policy making of legislative and political institutions but also in the implementing decisions of judicial and bureaucratic leaders. The implementers must be administratively competent and politically neutral, demonstrating Neutral Competence.
It specifically applies to important regulatory agencies, such as Election Commission, Anti-Corruption Commission, Public Service Commission National Board of Revenue, and the newly created Truth Commission, among relevant others. Again, a deep commitment of top leaders to a delicate balance between security and freedom within a framework of justice and equity could give an acceptable shape to political neutrality and administrative competence of judicial and bureaucratic institutions.
For this, three prerequisites have to be met. One is an independent, politically neutral, and competent judiciary. The second is a strong, non-partisan Election Commission. The third is an effective Anti-Corruption Commission. Although recent ordinances are directed toward that goal, it would be difficult to realise it without basic structural, procedural, and attitudinal changes, ensuring autonomy of these institutions from executive and legislative branches of government. Such checks are needed for political stability and social justice, which are important dimensions of national security.
Institutional checks on leaders also are needed to prevent absolute personalisation of power, which ultimately leads to gross abuses and rampant corruption. The unpalatable fact is power is poisonous to those who exert it. The prolonged, unchecked exercise of power destroys the leader and seriously hurts the organisation itself. Term limit of elected as well as certain non-elected offices is one way of addressing the sensitive issue. Reducing the duration of each term of elected offices could be another way to ensure greater accountability.
Once a generally acceptable environment is created to hold a free and fair election, an all-party convention could be held where all duly elected representatives of registered political parties would engage in deliberations on issues and problems which they see affecting vital national goals and suggest means to resolve them. Widely covered in depth by electronic and print media, voters would get the opportunity to assess plans and programs of participating politicians, helping them to make better choices. And participating party leaders and delegates would get the opportunity to clarify and improve their positions through political deliberations and dialogues on various issues and problems. By this, they would ensure not only a level playing field but also a high quality field for their future electoral contests.
The following is a sample of issues they might engage in deliberation. Some of the issues, such as term limit, changes in the electoral rules, bicameral legislature, presidential election and tactics of direct democracy, among others, could be addressed in a constitutional convention following the general election, if elected representatives so desire.
These are but a random sample of issues political leaders could address in a pre-election, all-party conference of registered political parties, which would help clarify the relationships between their party goals and what they see as shared national goals. It could also serve as critical confidence building and consensus building measures. After getting elected, they could consider convening a constitutional convention in order to engage in debates and dialogues with the specific purpose of converting their promised reforms into political reality by enacting specific laws to more effectively implement constitutional provisions and/or amending the constitution itself, if deemed necessary.
But the appropriate political environment would be needed for an all-party convention as well as the general elections in December 2008. For this, both the caretaker government and political parties must strive for a consensus approximating the "background justice," whereby political parties can enjoy freedom of assembly and speech without undermining electoral rules established by the Election Commission. The caretaker government on its part must repeal the emergency rule removing all restrictions on the activities of political parties. Only then justice for democratic elections could become an acceptable reality.
Hopefully, future elected leaders would strive for justice in defining the relationships between themselves and their constituents. They may not reach certain political goals needed for a functional democracy based on the principle of fairness, such as: mutual tolerance and accommodation, respect for individual rights and opposition parties, free and fair electoral system, independence of the judiciary, and constitutional limits on excesses of power by any branch of government.
But by at least striving for them they could accomplish some fundamental changes, which would advance the cause of justice for democracy, ensuring a quality of life hitherto denied to most Bangladeshis.
Zillur R. Khan is Rosebush Professor Emeritus, University of Wisconsin.
Photos: Munem Wasif/ Driknews
Sample Discussion Points:
1. The issue of justice in regard to the founding leaders of Bangladesh must be settled. Justice in the classical definition put forth by Socrates in Plato's Republic was to give everyone his due, which still holds true. For example, Sheikh Mujibur Rahman must be given his due as the political creator and founding leader of Bangladesh. And those who gave their lives in the struggle for Bangladesh must be recognised and their public benefits guaranteed by law. An integral part of justice is punishment. Those who worked against the freedom struggle and public interest must be held accountable and appropriate punishment meted out through the due process of law. But a higher good can be achieved, as Shakespeare put it, "when mercy seasons justice." Those abettors found guilty of their war crimes committed thirty-seven years ago may be allowed to petition for mercy. Upon recommendation of a Commission -- Repentance and Mercy -- or by any other name, the president may exercise his constitutional power to grant pardon in appropriate cases.
2. As for institutional checks on power, the following issues could be raised. Should the parliament have two houses, with one checking any excesses of the other? If so, should parliamentary term be reduced to three to four years for members of upper house and two for lower house, with general elections taking place every two years instead of five in which half or one third of the upper house members are elected every two years along with all members of the lower house?
3. Should a coalition government formula be adopted through proportional representation where each coalition partner could have checks on others?
4. Should presidential candidates face the electorate at large with final outcome decided by a run-off election when none gets a majority of popular votes?
5. Should a recall and referendum system be incorporated in the constitution? Should the remainder of the term of a legislator who is recalled be filled by a special election?
6. Should issues of national interest be put on referendum to be voted in general and/or special elections?
7. Should the Election Commission be given subpoena and contempt powers? Should it have the power to cancel elections in given constituencies because of serious violations of electoral rules? Should it have a clear qualifying guideline of fiscal accountability for candidates and enforce them? How should the chief election commissioner and other election commissioners be selected? How should they be held accountable?
8. Should the ACC be given special investigative powers to uncover corruption at different societal levels and incarcerate suspects for interrogation for a stipulated time without the due process? Should ACC be separated from the executive and legislative branches of government having subpoena and contempt powers? How should the chairman and other commissioners be selected? How should they be held accountable?
9. How should the constitutionally mandated institution of ombudsman be implemented? Should it be applied first to power, public works, Education and health sectors, particularly focusing on public utilities, public universities and private universities and hospitals? How should the chief ombudsman and other ombudsman be selected? Should they have authority to hold administrative hearings for citizens with specific grievances against government officials? Should they have subpoena and contempt powers? How should they be held accountable?
10. In order to ensure unobstructed communication between public and private sectors should partnership between the two be instituted with representatives of government, non-government and business organisations at different levels? Should elected representatives of such partnership bodies be allowed to participate as non-voting members in parliamentary and bureaucratic deliberations, respectively at the committee and department levels?