The 13th amendment and Bangladesh politics

Non-governmental forces' demand (defined as all Bangladesh oppositional and neutral forces) for reform in the 13th amendment merits serious consideration. The oppositions' arguments against the present caretaker governmentÊ system center mainly around the following:

(a) though the Chief Adviser of the Caretaker government has been accorded the status of the Prime Minister he has been made subservient to the President. The President is not bound to act according to the advice of the ChiefÊ Adviser Moreover the President retains the power to cancel any decision of the Caretaker government. One may argue that since the Caretaker government does not consist of elected representatives while the President is elected by the parliament it would be logical for the President to have powers super ceding those of the Caretaker government. The contra argument can be that the supra-caretaker government powers vested in the President is quintessentially against the philosophy of the 13th amendment which was enacted to hold elections under a non-political and impartial body. Since the President is elected by the majority party he could theoretically act in favor of the party which elected him. Unfortunately like developed countries many developing countries are yet to be wedded to the spirit of liberal values of tolerance and impartiality particularly in political and electoral process. Wining the elections by all means becomes the be all and end all of politics because politics today has become so commercial that it can be described as the conduct of public affairs for private gains. One can not but be surprisedÊat George Orwell's prescience shown in his observation that there is no such thing as keeping out of politics as all issues are political in nature where "politics itself is a mass of lies, evasions, folly, hatred and schizophrenia". Opposition parties' fear of the Caretaker government in its present form can be traced back to the 1996 February elections the results of which was totally rejected by the by the people and then government in power was compelled to pass the 13th amendment of the Constitution; and,

(b) during the tenancy of the Caretaker government the President retains full powers over defense though under ordinary circumstancesÊ the President remains the supreme commander of the armed forces his powers are totally circumscribed by the Constitutional requirement that he at all time act according to the advice of the Prime Minister. But during the tenancy of the caretaker government the President, should he so wish, can use the armed forces in a partisan manner. Given the extra-constitutional history of Pakistan (when Bangladesh was East Pakistan) and of Bangladesh such fear can not be totally dismissed.

The central idea of having a caretaker government is to hold a free and fair election which opposition parties do not believe can be held under a government in power. One suspects that the present oppositional demand for further revision to the 13th amendment is fuelled mainly by two factors. Firstly the 13th amendment was incorporated in the Constitution without any discussion with the opposition parties. Secondly, by raising the retirement of the judges of the Supreme Court the government has calculatively chosen the person who will become the next head of the Caretaker government. Interestingly a former Chief Justice has expressed himself to be against the existing provision that the immediate past Chief Justice should be made head of the Caretaker government . He feels that if necessary the head can be chosen from among former Chief Justices. But then the 13th amendment already provides for a larger field from which Chief Advisor can be appointed by the President albeit under certain conditions. The 13th amendment provides that the President shall, after consultations, as far as practicable, with major political parties, appoint the Chief Advisor from among citizens of Bangladesh. Though the opposition political parties are expected to come up with their draft amendment by the end of this month the ruling party has already rejected the idea of any change in the 13th amendment. As the major political parties refuse to participate in the elections without amending the 13th amendment the country has become sharply polarized into two camps.

In the event the two sides remain inflexible in their respective positions Bangladesh may see intense political agitation and consequent governmental action to suppress the political movement through political terrorism. As it is Bangladesh is gaining infamy for increased human rights violations. Explosion ofÊ untrammeled political violence would not only cause innocent political lives to be lost but would further increase the divide between the government and the opposition, a divide filled with violence and hatred.

One may wish to interrogate the desire of the government to hold on to power and that of the opposition to secure it. There is nothing inherently wrong in trying to capture power. After all politics is the art of capturing power. What is debatable is the process of acquisition of power. German born political scientist Hannah Arendt sees power corresponding to the human ability not just to act but to act in concert. Power, writes Hannah Arendt, isÊ never the property of an individual ; it belongs to a group and remains in existence only as long as the group keeps together. In money driven politics in countries like Bangladesh distinction between political functions and power becomes blurred. Consequently as Professor David Ingram argues, democracy can become despotic if it permits the majority to legislate according to its particular advantage. In such an event one can be faced with the emergence of tyranny of the majority and Henry David Thoreau's reluctance to surrender totally man's conscience to the will of the legislators becomes relevant.

Democracy essentially should reflect the will of the people. Developing countries face manifold problems in translating this "will" into actions aimed at welfare of the people. Since Athenian democracy is not possible in modern nation-states the "will" is exercised by the people through general elections which effectively gives away carte blanche to the legislators. This is more true in parliamentary system where brute majority can effectively deny reflection of the will of the minority. And if the election is flawed, which is alleged more often than not in developing countries, then it becomes difficult to identify and distinguish between the real "majority" and "minority" and other fragmented political community. To safeguard against habitual infringement of basic human rights by state agents in the name of "security" it is absolutely necessary for the democrats of the world to unite to monitor progress of democracy in different parts of the world. International community owes to its conscience and to the victims of modern day Auswitz and Buchenwald that such tragedies do not recur as they did in Rwanda, Sebrenica, Darfur and Congo and that democracy deficits are not tolerated because, for example, Asians see more merit in collective welfare at the cost of individual freedom as opposed to western conviction that individualism is non-negotiable. Lee Kwan Yew's theory of Asian penchant for discipline has rightly been challenged by the Malaysian leaders who saw through the proponent of the theory as being an advocate of despotism.

Bangladesh's tryst with democracy, interrupted more than once by extra-constitutional forces but regained at great cost, needs to be further developed if the people are to be freed from "poverty trap" they find themselves in. The country bedeviled with overpopulation, unequal distribution of resources, endemic corruption eating into the vitals of the economy, inadequate educational and employment opportunities, environmental degradation and social inequities is now facing unfavorable external conditions. While both quantum of aid and dependency on aid have decreased international inquisitiveness into hitherto domestic affairs have increased. As the inexorable forces of globalization are transforming global politics into an "incipient global neighborhood" international community is demanding that "global civic ethic" be adopted by all countries and embodied in international law where necessary by adapting existing norms of state sovereignty. The 1995 Commission on Global Governance has recommended that in situations where people are subjected to massive suffering a state's right to independence must be weighed against its people's right to security. The Commission recommended that article 2 of the UN Charter should be qualified by human rights. Profession to democracy should not be enough. Its practice from basic unit to the national level must be ensured. Influence of black money and muscle power has to be eliminated. There is no doubt that Bangladesh society is deeply divided today: one part harking back to the Islamic ideals which they believe require to be retrieved and the other wanting to retain the secular character of the society. While the former provides opportunity to breed Islamic extremism, the latter often mistaken to be agnostics are made to lose ground. If a truly free and fair election is held the Islamist-Conservative combine is unlikely to win. One hopes that for the good of the people politicians will pay homage to morality and will allow the true reflection of the will of the people in the next election.

Kazi Anwarul Masud is a former Secretary and Ambassador.