The Politics and Law of Democratic Transition

Caretaker Government in Bangladesh

Sonia Zaman Khan

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781351860246
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Peaceful legal and political 'changing of the guards' is taken for granted in developed democracies, but is not evident everywhere. As a relatively new democracy, marred by long periods of military rule, Bangladesh has been encountering serious problems because of a prevailing culture of mistrust, weak governance institutions, constant election manipulation and a peculiar socio-political history, which between 1990 and 2011 led to a unique form of transitional remedy in the form of an unelected neutral 'caretaker covernment' (CTG) during electoral transitions.

This book provides a contextual analysis of the CTG mechanism including its inception, operation, manipulation by the government of the day and abrupt demise. It queries whether this constitutional provision, even if presently abolished after overseeing four acceptable general elections, actually remains a crucial tool to safeguard free and fair elections in Bangladesh. Given the backdrop of the culture of mistrust, the author examines whether holding national elections without a CTG, or an umpire of some kind, can settle the issue of credibility of a given government.

The book portrays that even the management of elections is a matter of applying pluralist approaches. Considering the historical legacy and contemporary political trajectory of Bangladesh, the cause of deep-rooted mistrust is examined to better understand the rationale for the requirement, emergence and workings of the CTG structure.

The book unveils that it is not only the lack of nation-building measures and governments' wish to remain in power at any cost which lay behind the problems that Bangladesh faces today. Part of the problem is also the flawed logic of nation-building on the foundation of Western democratic norms which may be unsuitable in a South Asian cultural environment. Although democratic transitions, on the crutch of the CTG, have been useful in moments of crisis, its abolition creates the need for a new or revised transitional modality – perhaps akin to the CTG ethos – to oversee electoral governance, which will have to be renegotiated by the polity based on the people's will.

The book provides a valuable resource for researchers and academics working in the area of constitutional law, democratic transition, legal pluralism and election law.

1

Introduction

The focus

Across the world, during election periods in general and government transitions in particular, tension, anxiety and fierce competition over the electorate’s attention are commonplace and have become a well-known part of the struggles in managing the democratic process. Usually in democracies, a State’s electoral system functions smoothly and along democratically acceptable ways to guide and monitor the processes of bringing about the next government. Unfortunately, this has not been the case in many nations, and particularly in Bangladesh, this has remained deeply problematic, even 45 years after independence from Pakistan in 1971. Despite its legacy in terms of inheriting presumably helpful institutions from the British Raj, the nation’s historical development of arrested democracy has shaped its political landscape and its legal vicissitudes. In fact, these continuing troubles have not only influenced how Bangladeshi legal and political institutions have developed over the past few decades, but have also from time to time seriously endangered the future of the country as a whole. Even at the time of completing this book, holding acceptable free, fair and participatory elections in Bangladesh remains a burning issue, making this subject even more pertinent than it appeared at the beginning.

Amid this rather troublesome history of perennial failure to address existing problems of electoral governance in Bangladesh, a mechanism called ‘caretaker government’ (CTG) was devised, from 1990 onwards, to manage general elections and peaceful transitions of power. Since 1990, after ousting the prolonged military regimes, Bangladesh had entered a new phase of democracy in which the ‘two’ autocratically inclined battling ‘Begums’, as referred to in popular parlance, have given Bangladeshis no alternative but to choose between the two of them. And Bangladeshis had been content in exercising that choice in an atmosphere of free, fair and inclusive elections conducted through the CTG structure from 1990 to 2008. Given that political deadlock and violent conflict at the country’s expense, between the two major political parties, the Awami League (AL) and the Bangladesh Nationalist Party (BNP), have characterised national elections since this new phase of democracy emerged, and given that the nation’s democratic institutions have not been strengthened over the years, neither of these two parties believe that it would have a fair chance of winning an election organised by its rival because of the risks of relentless manipulation. This is why the unofficial CTG structure of 1990 formally emerged through a constitutional amendment in 1996. This rather unusual legal structure, created as a remedy by the political élite with the (assumed) will of the people (no referendum was conducted when the CTG emerged, nor when it was subsequently abolished), indicates a certain type of malfunctioning of the State machinery in a developing South Asian country at the critical point of elections. Neighbouring countries, while certainly not trouble-free, have not experienced the kind of intense problems to the extent witnessed in Bangladesh, which indicates that there must be specific factors that play out in creating these kinds of difficulties. Despite delivering four free, fair and participatory national elections over a period of 20 years, this constitutional innovation of the CTG is marred with controversy as to its benefit and effectiveness in assisting democratic transition, thereby fostering democracy in Bangladesh. Its abrupt abolishment in 2011 raised important new issues about the utility and efficacy of this mechanism. Clearly, the general elections of 5 January 2014 were conducted without any CTG, and promptly raised questions over democratic credibility, but to date, Bangladesh has a functioning government that, while of course not unchallenged, has managed to rule it, and rule it in a manner of nonchalance. Although ‘on the world stage, Prime Minister Sheikh Hasina has joined a list of leaders who have been elected technically but without an electoral mandate’ (Joehnk 2014), the AL government cannot be termed an illegal government, but one lacking serious democratic credibility since Khaleda Zia and her party, BNP, unwisely decided to boycott the poll on the grounds of the absence of a CTG to oversee a free, fair and inclusive election. This decision of non-participation, based on the belief that free and fair elections are not possible without CTG supervision, cost BNP their seats and their standing as an opposition voice in parliament – which is the democratic platform or centre stage. The ensuing violence which followed during the January 2014 election, together with the low turn-out of voters, leaving 154 uncontested seats in the hands of the ruling party, indicates that there is a difference between choosing two candidates rather than just one.

Against this backdrop of election-time tug of war and transition, which cripples the nation prior to general elections every time, the main question posed in this book is: To what extent is there any legal basis of, and justification for, the CTG as a supportive and effective vehicle for democratic transition in Bangladesh? Additionally, to what extent has the CTG mechanism been useful for Bangladesh, and what lessons have been learnt from its operation? To answer these main questions, the book explains and analyses in depth how the CTG machinery of Bangladesh arose and operated, how and why it was abolished and how it has been evaluated by various stakeholders, including the electorate. To capture public perceptions about the CTG and its functioning, a survey of a fairly large sample of people and interviews with stakeholders in Bangladesh regarding the CTG’s utility and impact during government transition (if at all) was undertaken. The evidence yielded is integrated throughout the book, particularly in Chapters 4 and 5. While examining the extent to which the CTG is a workable instrument during the transition of power, given that its main role is to ensure that free, fair and participatory elections are regularly held, the book posits that perhaps this temporary institution itself may be a useful and constructive tool in terms of paving the way for good electoral governance in Bangladesh. The reactions to the abolition of the CTG in 2011 suggest that although such an institution may not be ideal in democracies, in the context of Bangladesh, it may still have some utility.

Nagging interrelated questions arise as to why Bangladeshi State election structures have been failing in this particular way, and what the reasons are for the failure of Bangladesh to adequately govern itself. In the troubled conditions of an emerging democracy like Bangladesh, where democratic institutions are not yet fully built, where the pendulum of power has swung between prolonged military rule and unstable civilian order, where there is clear evidence of deep mutual mistrust among most stakeholders and where there is a dysfunctional two-party system as far as holding free and fair elections are concerned, there appear to be many risks for operating an interim structure like the CTG. Despite these clear risks, including the risk of ‘politicisation of the judiciary’ (as involving the former chief justice as the head of the CTG ran the risk of blurring ‘the separation between the judiciary and the executive’) (Riaz 2013a: 3), there has nevertheless been a 20-year history of the CTG in Bangladesh. Thus, the book also questions whether the emergence of this structure itself constitutes evidence that the country’s democratic system is not yet fully mature enough to handle the challenges of electoral transitions without the crutches of a neutral interim government of some kind.

Given the unscrupulous manipulation of the CTG mechanism from 2006 to 2008, a few subsidiary questions also arise as to whether and to what extent abuses of the system actually continue to pose risks to the country’s progression to a satisfactory functioning of electoral governance. Looking at it from a completely different perspective, the book also attempts to examine how a jurisdiction like Bangladesh, in all its cultural specificity and variety, is able to absorb the ethos of a democratic culture when the notion of democracy actually emanates from a Western context and, to that effect, to what extent direct transplants of democratic models from the West actually function satisfactorily in the context of South Asia, specifically in Bangladesh.

The country’s electoral history, post 1990, portrays a constant struggle between two deeply opposed political camps, AL and BNP, which have alternated in leading the country when elections were conducted by the CTG mechanism. It would be too simple to explain the electoral and governance troubles of Bangladesh as merely a consequence of this adversarial, vengeful and unremitting battle of AL and BNP, hence the other related questions arise which refuse to fade away: Is it a deeper systemic problem, and to some extent a question of culture, or is it really, as has been suggested, just a personal matter related to the so-called ‘battle of the Begums’ and thus some form of dynastic warfare? These important questions, elaborating also the wider political context, all relate closely to the main challenge of assessing the operation of the CTG as a legal tool of good governance in Bangladesh.

As the nation witnessed a controversial election, without the crutches of a CTG, in January 2014, in the process it once again succumbed to a series of deadlocks. The lack of desperately needed discourses between the government and the opposition regarding election modalities, the failed attempts of civil society members and the international community to bring AL and BNP members to a dialogue regarding election-time modalities, the boycott of election by the opposition, the ensuing anarchical street violence and crippling hartals (labour strikes) by the opposition, the phenomenal number of casualties resulting from the hartals and blockades, the ruthless crackdown on the opposition, the poor voter turn-out on election day, the government’s winning of large numbers of uncontested seats – all of these tell us about the effects of the manipulation of the law as a tool of governance in a South Asian country like Bangladesh. This results in a series of electoral governance malfunctions, which the populace is compelled to bear year in and year out.

Although the myriad complexities of transitional polities are a work in progress for any nation transiting to democracy, from a vantage point in early 2017, one of the lessons learnt from the CTG experience is, perhaps, that even a CTG can be abused and manipulated. But despite the pitfalls, over a period of 20 years, the fact of the matter remains that the CTGs have delivered free, fair and inclusive elections to Bangladesh over and over again, making the transition from one government to another as trouble-free and non-controversial as possible. Perhaps lessons have been learnt through the CTG experience, but evidently not enough, and it seems that throwing away these crutches of election management completely without creating a reliable alternative may have been a too rushed and somewhat reckless decision.

The context

Bangladesh started out in 1971 as a democracy, based on the legacies of its historical connection with India and Pakistan, but soon saw a regression into an autocratic form of governance. The ruling party, in its attempt to consolidate power, faced with infrastructural challenges, devastating famine, extreme economic hardship, severe deterioration in law and order, rampant corruption and, as a result, decreased popular appeal in the aftermath of a violent war of independence with the Pakistani army, which killed at least three million people ‘and sent ten million refugees fleeing to India’ (Bass 2014), decided to revert to a one-party system, following the communist parties of China and Russia. This socialist experiment was short-lived and was stopped in its tracks, as a military regime usurped power within a few months of these developments becoming evident, brutally assassinating the founding father of the nation, Sheikh Mujibur Rahman (revered as Bangabandhu – ‘friend of Bengal’) and most of his family members in 1975. Thereafter, the process of going back to a multiparty democratic system started anew, only to be halted again a few years later by fresh military interventions. These military interventions brought religion to the political forefront in a calculative manner, altering the political landscape of Bangladesh by redefining State principles from secularism to Islam and identification of citizens from Bengalis to Bangladeshis. Professor Ali Riaz (2010: 49) identifies the impact of these military interventions in the following words:

These military regimes succeeded in bringing Islam into the political discourse and facilitated the gaining of legitimacy for the Islamists – both constitutionally and politically. The lasting legacy of this era is the change it has brought to the entire discourse of Bangladeshi politics and the serious blow it delivered to the secular ideal.

This process of Bangladesh’s faltering democratisation, coupled with worldwide economic pressures resulting from the oil price hike in the mid-seventies, had a significant impact on the quality of democracy achieved in the country.

Although Bangladesh has had no tutelary period of transition from élite parliamentary politics to parliamentary democracy, the latter is regarded as the legitimate form of government by virtually all politically aware and participant groups of the population except for the Islamists (Stern 2001: 17). The deficiency in democratic consolidation was initially due to a lack of democratic experience, a perspective summarised by Hossain (2000: 525) in the following words:

Political instability should be viewed as a reflection of feudal character of a traditional society in which most people are uneducated, socially backward, and politically uninformed and hence possess unsophisticated character traits, including feudal or tribal rivalry.

The same commentator further points out that ‘[t]here exists a patron-client culture in all spheres of life that is behind the personalised, factionalised character of Bangladesh’s politics’ (Hossain 2000: 525). Consequently, the democratic progress is perceived to be constantly disturbed and infected by undemocratic tendencies, worsening the prevalent climate of mistrust in the country. However, the reality is far more complex.

Although Feng and Zak (1999: 162–163) argued that widely held determinants of democratic transitions like low per capita income, low levels of education and a lack of history of democratic experience and practice are factors weighing down the road to sustainable democracy, there are other significant factors which continue to affect the quality of democracy (Fisher 2013; Vigoda-Gadot and Mizrahi 2014). With regard to Bangladesh, Islam (2005) notes that although the rule of law underlies the entire Constitution, the concept is capable of different interpretations by different people and has, therefore, various shades of meaning. Typically, the Constitution of Bangladesh in the preamble proclaims the ‘rule of law’ as the prime objective of the Constitution and as a new habitat for substantive provisions aimed at achieving the rule of law. By itself, this is merely decorative and is not reflective of Bangladesh’s reality. The representative character of the government in Bangladesh is not confined to the central government but to the sphere of local government and all levels of administration. But this truly representative government is a misnomer unless free, fair and inclusive elections to reflect the wishes of the people can be ensured. One could actually go a little further and add that the expectation is that democracy ought to engage the bulk of the population in participation which is political. Such political participation means behaviour on the part of the mass public directed at influencing, directly or indirectly, the formulation, adoption and implementation of governmental or policy choices (Fishkin 2009: 45), for that is a hallmark of an inclusive and perhaps sophisticated democracy. Voting has become by far the most widely shared form of political participation and, although contributing money, time and effort to political causes; demonstrating; writing letters or emails to government officials; and signing petitions are all activities that involve large numbers of people, this level of advanced democracy has not yet been achieved in countries like Bangladesh. For Bangladesh, one can tick the box that there is a basic electoral governance only when the voting is participatory, and political parties enjoy a level playing field when free, fair and inclusive elections are held at regular intervals. Unfortunately, the culture of mistrust in Bangladesh is closely connected to and develops into what one may call a ‘culture of non-participation’. This thought arises in view of frequent parliamentary boycotts, hartals and a basic refusal of the opposition to engage in constructive discourse. Such obstructions indicate a serious and at times frustrating deficiency in the political culture, which impacts the overall quality of rudimentary democracy in Bangladesh.

It is indeed mainly the ‘free and fair election’ element of democracy which has been a prominent point of contention in Bangladesh over many years. Hossain (2000: 509) argues that although the common perception of Bangladesh’s political instability is fundamentally a self-inflicted national indulgence of trivial issues, in which all social groups willingly or unwillingly show their proclivities, this in itself does not tell the whole story and seems to be marred by rhetoric. Any attempt to identify other, deeper factors that may have caused political instability would require an investigation of the social, cultural, religious and political traits that create social and political disharmony. In analysing the need for a CTG mechanism in Bangladesh, these elements of social, historical, cultural, religious and political aspects are also discussed in this book, in Chapters 2, 3 and 4. In his article, Hossain (2000: 508–529) not only summarises the historical profile of the political parties that dominate Bangladesh’s politics, including thumbnail characteristics of voting behaviour, but also attempts to explain why these parties do not cooperate and follow parliamentary norms and practices to establish a mutually beneficial two-party political system. He points out that confrontational politics, as practised by these parties in Bangladesh, are a manifestation of an inbuilt undemocratic political culture in which each party seeks to monopolise State power as if the other does not even have the right to exist. Hossain (2000: 509) concludes that in an underdeveloped society like Bangladesh, the mere transfer of political power from the military to the politicians or the conduct of ritualistic elections does not necessarily establish a stable democratic political system. In such a society, the existing feudal political culture, often under the rubric of dynastic political leadership, is more likely to promote confrontation than stability and cause deterioration rather than an improvement in the governance of the State.

Other State institutions in Bangladesh, such as the judiciary, have been pliant and subject to political intervention and direction. Political and bureaucratic interference are the most significant impediments to police efficiency and have resulted in the worst forms of abuse including illegal detention, death in custody, torture and pervasive corruption. The result is almost universal public disdain for the police force. Political regimes have used the police, since their inception, to regularly harass political opponents, for example, by using the Special Powers Act of 1974 (Act XIV of 1974), which has provisions for preventative detention (promulgated on 9 February 1974), rather than using them to maintain public order or to give them the opportunity to develop as a neutral institution. In addition, since 2004, the Rapid Action Battalion (RAB), an élite anti-crime and anti-terrorism unit of the police, was created to combat criminal gang activity throughout the country. It has been accused by Amnesty International of a lack of accountability and for being responsible for at least 700 deaths from 2004 to 2011, which have been attributed to crossf...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Preface
• Abbreviations
• 1 Introduction
• 2 Caretaker governance: A new dimension to politico-legal philosophy
• 3 Journey to Democracy – the case of Bangladesh
• 4 The caretaker governments (CTG) in Bangladesh
• 5 Government transitions in Bangladesh: Critical contextual analysis of the CTG mechanisms, their performance and their assessment
• 6 The CTG as an intermediary strategy of responsible governance in Bangladesh and the uncertain kite journey ahead
• Bibliography
• Table of Cases
• Index