Time for comprehensive constitutional amendment?

The suggested jurisdiction of the caretaker government does not contradict the present provision of caretaker government as "interim government". For fair election, whether the defense shall be with the President as in the constitution or with the chief advisor, acting as the Prime Minister, may not matter much, in that the Election Commission can ask the President to provide necessary staff and assistance as per Article 120, and the supreme command of defense services vests in the President. Problems may arise only if the President chooses to declare a state of emergency without consultation with or approval of the chief advisor and other advisors. It may not however prove wrong to have faith in the President as an institution.

Appointment of Chief Advisor: If the suggestion for the appointment of the chief advisor and the advisors by "consensus of, and in consultation with all political parties, instead of selecting the chief advisor from the last retired chief justices or retired Supreme Court judges" means to suggest selection of non-controversial, qualified persons for the sake of fairness, the idea is alright, but the words "all parties", and "consensus" are not practicable. Our political parties -- large or small, are not registered and "consensus of the parties" does not necessarily mean the consensus of the people or even those who might contest the election. The idea, even if accepted as a compromise at some point, will mean bypassing and even humiliating the general people who may not accept either the ruling or the non-ruling political parties to monopolise ownership of the country despite their varied past roles. The vast section of under-40 population cannot be carried by the emotion of freedom fighting alone. They will like to be sure of a better future in peace, freedom, social harmony, prosperity, justice, fairness and discipline. All changes must address these visions untainted by egoism or arrogance of any section of the people or the leadership.

For stability and wider acceptance, there may be established a permanent or semi-permanent constitutional body to ensure fair conduct of not only parliamentary, but also local government- and by-election.

Non-party National Security Council: There may be " a ten-member Non-party National Security Council, including the President as its Chairman, one nominee of the President, one nominee each of the three service chiefs, four nominees of the members of the parliament-- each nominated by one-fourth of the members, and one nominated by these nine members, who shall serve as the Secretary General of the Council " which may function as a part of a non-party caretaker government with the Secretary General serving as the Chief advisor during the period of caretaker government and as a watchdog against national crises or even against violation of the constitution by executive organs of the state during other time. The president, on the advice of the chief advisor, may appoint a maximum of seven other advisors to the caretaker government, in addition to the nine of the Security Council.

As there may be a vacuum of 15 days' time between dissolution of parliament and the appointment of the chief adviser and other advisors under the present constitutional provision 58C(2), there may be a period of shaky administration. The proposed provision of Non-party National Security Council can resolve this uncertainty.

Election Commission: No one may contradict that the election shall be conducted by a financially and administratively independent Election Commission. All sections of the executive organs shall provide it any assistance necessary for conduct of election peacefully, fairly and impartially. In place of suggested all-party observer team, it may constitute observation teams at local levels, comprising certain number of representative(s) of all the candidates. International election observers may not be considered separately.

Voter List and Voter ID: The citizen registration card, voter ID and Tax ID may be available almost instantly if scientific, possibly non-party based, local government bodies with citizen registration, and birth as well as death registration system can be established. The idea of providing EC's own staff upto upazila level is neither workable nor necessary. The local government bodies can provide large, temporary, additional manpower necessary for conduct of election. Electronic voting system is not a foolproof cure either, at this stage of technological development, especially when all voters are not properly educated. In special circumstances, election may be conducted over two to five days instead of one day throughout the country.

Electoral Laws: The election expenses of any candidate, including the expenses for relevant facilities may be limited to an MP's 8 to 10-months' pay at the maximum as may be determined by law. The expenses, sources of fund and the list of fund managers and their obligations must be clearly mentioned and reported to EC within not more than two weeks after election. As the election is for an elected public office, a candidate is supposed to sacrifice a part of his privacy and shall disclose all the information of public interest as may be specified by law. Violation of electoral law or furnishing of false information may be punishable by forfeiture of his seat even after declaration of election result.

To be a candidate one must relinquish his executive position in any private company, public corporation or local government bodies and shall not enjoy any benefit from such organisations during election period and after being elected.

The idea of disqualifying a black-money holder or loan defaulter for election is not simple, in that there are other laws to disqualify such candidates. If a loan defaulter is declared "an undischarged insolvent", he is disqualified (article 66(2) b). As to black- money holder, i.e. one with unearned income, the article 20(2) of Part II says, "The state shall endeavour to create conditions in which, as a general principle, persons shall not be able to enjoy unearned incomes ...".

This part II makes education compulsory, guarantees fundamental human rights and freedom and participation by the people in administration at all levels through elected representative, secures the right to social security, asks for separation of judiciary, obliges public servants to endeavor at all times to serve the people, requires the state to encourage local government and imposes other obligations, but the article 8(2) virtually negates all good provisions by simple words, " but shall not be judicially enforceable". It is very interesting to find that there are loud voices from judiciary about only article 22 "The state shall ensure the separation of the judiciary from the executive organs of the state" out of 18 articles in this Part. These articles are "judicially enforceable" in the constitution of some civilized country. Should we not have all the constitutional rights to achieve a just, disciplined society for honourable living?

Election Review Board: An Election Review Board may be established to expeditiously deal with election law violation and other election-related matters. It shall be empowered to cancel the election result of any particular constituency, or reverse the election result in favor of the second highest vote winner if gross violation by the declared winner is established. The function of the present election tribunal may also be strengthened to serve this purpose.

Post-election Expectation: Voting some groups into power should not be treated as giving them license for taking the people hostage and usurping state property or resorting to project-hunting in the name of development. The MPs, the administration and the civil servants blame one another for all evils. Even the heads of government happen to show unhappiness and annoyance at the state of affairs. There is one hope that everybody, despite all rhetoric to the contrary, realises that the state cannot run this way. People try to pin hope in every election for reversing this dangerous and self-destructive downward slide. If the ruling and non-ruling parties responsibly love the country, they should go deeper into the causes to rectify them, not simply look for a chance to exploit the people as has been the case since independence. The state is one, the people is one, their aspiration is one and the policy for development should be one and comprehensive.

To create atmosphere for that oneness, we must get into the hard job of comprehensive amendment of the constitution putting together all the wisdom of the nation and removing all anti-people provisions, which can protect our national interest, resources and land, deter the evils, respect people's rights, encourage creativity, strengthen economy and technological base, ensure transparency, protect students from exploitation, raise our intellectual and moral standard, establish effective and functional local government to deliver service, and finally make the nation great. We should get rid of the bad provision of arbitrary requisition of private vehicles or property. We must create the office of Ombudsman -- not one like the tax ombudsman which has been subordinated to tax officials or civil servants whose conduct are supposed to be investigated.

Arrogance, hatred or vengeance or deception or confrontation will take us nowhere as a nation. Parliament membership should be more than a full-time job with handsome remuneration. Their participation in the Parliament may be ensured by increasing quorum size, reducing the number of permissible days of absence from the parliament session and honouring them by removing article 70. There may be introduced provisions of people's right of enactment on direct initiative to eliminate excuses for Hartal and to establish people's right to overcome national crises peacefully.

People have great hope in the law makers who have a colossal law-making task to bring discipline and rationality in the functioning of the state. We have been expecting a beginning in the right direction for last 34 years. It is the parliament members whom we look forward to, and more so now, as the coalition has the required two-third majority, who can also be backed by opposition and general people for the national cause if and only if they have and happen to demonstrate good intention. We can form broad-based committees to start the work immediately. This may prove to be a great opportunity for the ruling and the non-ruling parties and virtually for the nation. Let us act rationally and quickly before the frustrated people are in total despair, so that we do not have to repent for missed opportunity again.

Mustafizur Rahman, PhD, is Chairman, Institute of Development Strategy, Dhaka. The views expressed are his own, and not necessarily of the organisation he represents. E-mail: idsrahman@msn.com]