ZAFAR SOBHAN

T

On the surface it does not seem as though much has changed in the past few months. The government and the opposition continue to remain locked in their struggle, seemingly to the death, over reform of the laws governing both the elections and the caretaker government that will oversee them.

The chief election commissioner, M A Aziz, is still in place. The official government position is to maintain that he remains the man for the job, despite his manifestly poor performance with respect to everything from his flouting of judicial orders to his testy relationship with the press to the compilation of a voter list that has 10 million more voters than is even mathematically possible given the last census figures.

Some senior members of the government have even publicly expressed their reservations, but there is no indication as yet that the chief election commissioner is going anywhere. This is a pity. Not only has the main opposition Awami League (AL) categorically stated that it will not consent to elections under the present dispensation, but it is also the general consensus of the media, civil society, and most independent observers that Aziz is too compromised to credibly oversee elections.

The impasse thus currently seems intractable. The root problem is that the stakes are extraordinarily high for both sides and neither is inclined to give ground. However, since the time is fast approaching when one side or the other (or even a third) must by definition emerge victorious with respect to the disposition of these outstanding issues, one or other outcome must eventually transpire, hence the conspiracy theories.

If you were to ask me to handicap the situation I would say that the AL has a slightly better hand to play than they did a few months ago and that the balance of power is shifting their way, largely due to the fact that their demand for the ouster of the chief election commissioner echoes the sentiments of the majority of the public. But that they will prevail on this issue, or any other, is far from a foregone conclusion. Indeed, the fact that the opposition appears to have the upper hand means more or less nothing as it implies that the political imbroglio in Dhaka is a two-way race, when all the indications are that the race may well have other runners as well.

Brouhaha over Presidency

The past few months have seen substantial evidence of all manner of behind-thescenes plotting and planning. The most significant political tempest in recent months has been the quite unexpected brouhaha that has developed with regard to the presidency. There had earlier been whispers that the current high command was growing uneasy with respect to the loyalty of the president, Iajuddin Ahmed, who had until then seemed, to the casual observer at least, to be sufficiently subservient and pliant to its wishes. However, it was not until the president was rushed to Singapore for multiple by-pass surgery that the subject of his fitness for office exploded on the national consciousness to be debated in op-ed pages and on cable television talk shows.

The entire episode descended into farce upon his return to Dhaka and the fevered debate turned to arcane matters of presidential protocol. Due to the president’s understandable infirmity following surgery, the acting president (speaker of the house Jamiruddin Sircar) remained in his office, but much significance was adduced to the fact that the returning president was not accorded full presidential protocol. The opposition even claimed that he was perfectly fit to immediately return to office and that his need for convalescence was in reality a nefarious scheme on the part of the government to keep him out of office.

In the end there was such a commotion (with the surgeon who performed the operation in Singapore being hunted down to issue a statement on the health of the president) that the poor man has been forced back to office to miserably resume his duties even though he probably could have done with some more rest. Many in the opposition are firmly of the belief that the entire episode was engineered to allow the prime minister, Khaleda Zia, to take over the presidency, and that the plan was shelved only as a result of the ensuing hullabaloo.

A more plausible scenario, however, is that the Bangladesh Nationalist Party (BNP) had decided that they would prefer a more compliant and loyal president (such as Jamiruddin Sircar, who has since resumed his duties as speaker) and wanted to put him in place as unobtrusively as possible.

But why, one might well ask, is the identity of the president such a big deal? In the Bangladeshi system is the president not a mere figurehead and token head of state with virtually no power whatsoever?

Well, yes and no. This is true for the majority of the president’s tenure, but the president takes on a significant role, or at least a potentially significant one, during the period of the caretaker government, which is scheduled to take office within

Economic and Political Weekly July 29, 2006 15 days of parliament being dissolved on October 28.

In this light, the first thing to note about the president is that, in the event that the constitutionally prescribed means of selecting the head of the caretaker government are exhausted (i e, none of the retired justices accept the post), under Article

58.C (5) of the Bangladesh constitution, it is the president who more or less singlehandedly gets to appoint the chief adviser:

If no retired Judge of the Appellate Division is available or willing to hold the office of the 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.

Indeed, under Article 58.C (6), the president is even empowered to appoint himself for the position if the previous clause “cannot be given effect to” for whatever reason.

If this were not power enough, under Article 58.C (7) it is the president, together with the chief adviser whom he has appointed, who gets to appoint the other advisers to the caretaker government. The need for the government to be able to ensure the absolute loyalty of the president thus becomes apparent.

In addition, the president retains control of the defence ministry during the tenure of the caretaker government. This provision was a bone of contention when the legislation was first drafted in 1996 and was slipped into the final draft only at the last minute. The then opposition Awami League, however, accepted the legislation as drafted, and, crucially, did nothing while in power from 1996 to 2001 to amend this controversial provision, thus undercutting their current argument that it is a pernicious provision that needs to be changed.

Indeed, there is some evidence that the BNP has always looked at the question of the president’s power with a little more guile than the AL. The AL, for instance, put a respected non-party man, justice Shahabuddin Ahmad, in the position of the president and came to regret it bitterly for his non-partisan handling of the 2001 elections.

The BNP were going to make no such mistake. The party’s original choice for president (who is elected by simple majority vote among members of parliament, ensuring that the ruling party is free to install whomsoever they wish) was Badruddoza Chowdhury, the founding secretary general of the party. However, in one of the most bizarre incidents in the early days of this government, Chowdhury fell foul of the party and was hounded from office, ostensibly due to his failure to place a wreath on the grave of BNP founder and president Ziaur Rahman on the latter’s 21st death anniversary.

At the time it seemed absurd that anyone, let alone a party stalwart, would be forced from the presidency for such a seemingly trivial offence. However, in light of recent events, the fact that such a minor transgression would lead to his ouster is perhaps an indication that from the very beginning, this government has been cognisant of the potential power of the presidency and the necessity for the position to be held by someone whose loyalty and servility is beyond question.

Badruddoza Chowdhury found out what this means and the current president Ahmed is finding out right now. The disquieting thought is that Iajuddin Ahmed has been an utterly compliant president and it beggars belief that the BNP would find him untrustworthy. Indeed, the fact that his loyalty is now under suspicion raises important questions as to precisely what the government might have in mind.

As a result of these baroque considerations, the political classes have all of a sudden begun to study the constitution with the exactitude of Talmudic scholars, and have belatedly determined that, contrary to popular understanding, under certain circumstances the caretaker government is in fact constitutionally empowered to remain in office for an indefinite period of time.

Article 58.B (12) holds that: “The Non-Party Caretaker Government shall stand dissolved [only] on the date on which the Prime Minister enters upon his office after the constitution of a new Parliament.”

This provision is significant because it contemplates elections being held and a new parliament and prime minister being sworn in. Thus, if it is not possible for the caretaker government to hold elections due to either boycott by the opposition or unrest in the streets, the caretaker government is constitutionally mandated to remain at the helm.

This provision gains even more significance in light of the fact that as things stand right now, there seems little chance of a generally accepted election. Thus the question of who will constitute the caretaker government now takes on added weight.

The most discussed conspiracy theories revolve around the various permutations and combinations that seem possible with regard to the make-up of the caretaker government. One possibility making the rounds is that the government will attempt to stack it with loyalists to either oversee a BNP election victory or to continue BNP rule by other means if no election can be held. Another theory in circulation is that a bureaucrat-technocrat cabinet of wise men will be installed to guide affairs of state in a non-partisan manner with none of the political bickering and infighting that has dogged democracy in Bangladesh for the past 15 years.

The significance of the fact that such a government would have constitutional legitimacy cannot be overstated. Due to this legitimacy, such a government could fully expect to command the support of the civil administration, the police forces, and, crucially, the armed forces. In addition, the constitutional patina would give foreign governments cover to shore up such a government with expressions of support and continued economic and military assistance.

Finally, and most importantly, the fact that an extended caretaker government seems to be perfectly constitutional would blunt protests from the discarded political parties and could help ensure support from the general public who, mindful of the country’s disastrous previous experiences with autocracy, remain hostile to the idea of any extra-constitutional measures.

So as the end game draws nearer, the country is busy trying to figure out who is holding what cards.

Neither the BNP nor the AL seem strong enough to vanquish the other. The BNP have not been able to project the strength that would suggest they could rig the elections to the extent necessary for their victory. On the other hand the AL has not projected the strength to suggest that they could protect their voters and ensure that a free and fair election, in which they would almost certainly triumph, could be held.

This stalemate between the two heavyweights of Bangladeshi politics, in which neither is strong enough to gain a decisive upper hand and deal the other a knock-out blow, opens the door to new players. Perhaps the conspiracy theories have some substance to them, after all.

EPW

Email: zsobhan@hotmail.com

Economic and Political Weekly July 29, 2006