Contours of democratic consolidation


Dr. Badiul Alam Majumdar

Photo: Sazzad Ibne Sayed

MANY years ago, mathematician Jadab Babu introduced us to the challenge of climbing greasy poles. His arithmetic problems focused on the observed difficulties of moving up and slipping down while climbing such poles. Thanks to our politicians, we as a nation have been going through the experiences of climbing Jadab Babu's greasy poles in real-life over the last two decades. Such experiences came from their on-again, off-again initiatives to reform our political and governance systems, their defiance of the Constitution and Court orders, and their refusal to implement reform legislation.

The parliamentary elections of 1990 brought the democratic system back to Bangladesh, replacing almost a decade of military and semi-military rule. After the democratic transition, most citizens expected that the newly elected government and the opposition would behave responsibly and work together to initiate necessary reforms in order to consolidate and institutionalize democracy. In fact, that was what the major political parties had committed to do on the eve of the Ershad's downfall.

It may be recalled that a Coalition of three alliances a three-party alliance, a five-party alliance and a seven-party alliance made a Joint Declaration on December 6, 1990 which included a set of commitments on their part to the nation. The commitment called for the creation of an independent (termed sovereign) Parliament to which the executive branch would be accountable. [It is now a settled matter that, in a country with a written Constitution representing the will of the people, the Constitution itself is sovereign, not any of the branches created under it (See Special Reference, AIR, 1965 SC 745)] The Coalition also committed to uphold the rule of law and make the judiciary independent. Thus, the Coalition committed to governance reforms to make the Parliament function more effectively, supported by a system of checks and balances.

However, except for instituting the parliamentary system by adopting the 12th Amendment to the constitution in 1992, our political leaders did not fulfill their commitments. Rather, they did the opposite: they crippled Parliament, thus making it ineffective in performing its oversight role. The current dysfunctional state of our Parliament is a result of the continuous boycott by the opposition, partisan behavior of the Speakers and the ineffectiveness of its standing committees. More seriously, instead of functioning independently to make the executive branch accountable to it, Parliament became subservient to the imperial premieres. (In a parliamentary system, the Prime Minister is normally the first among equals within the cabinet. However, a serious built-in weakness of our system is that not only the Cabinet but also the Parliament itself has become in all practical purposes accountable to an all-powerful Prime Minister.) The concentration of both the party and governmental power in one hand and Article 70 of the Constitution, which bars floor crossing, greatly contributed to this state of affairs. Needless to say that, with an ineffective Parliament, democracy in our country has become a "one day" election day affair: in essence, more of a show staged every five year with much fanfare than real democracy.

Against the backdrop of the failure of political parties to keep their promises over the past decade, many thoughtful citizens began to feel compelled to generate ideas and agitate for the reform of our political system. Consequently, Citizens for Good Governance (SHUJAN) a volunteer-based citizens' platform, based on extensive consultations formulated a comprehensive set of reforms encompassing the electoral process, the electoral roll, the Election Commission (EC), political parties and candidate disclosures. Following the announcement of its reform package in 2004, the volunteers of SHUJAN carried out many activities, including holding Roundtable meetings, workshops, debates, democracy/election Olympiads, cultural events etc. throughout the country to create citizen awareness and garner support for the reform agenda. Fortunately, as a result of such a broad-based campaign and with the help of the media, many citizens began to demand changes in the functioning of our political system. It may be noted that SHUJAN, armed with widespread support from the public, submitted to the Election Commission a draft of the amended Representation of People Order, 1972 (RPO), incorporating many of the newly developed reform ideas.

Given widespread public demand, Sheikh Hasina, on behalf of the eleven-party alliance, held a news conference on July 15, 2005, to unveil an outline of reforms which included most of the ideas included in the proposal put forward by SHUJAN earlier. In the outline, she specifically offered 15 concrete commitments to make the EC independent and effective. At the same time, she made 30 specific promises under 11 headings to reform the electoral laws and rules. The headings included: eliminating the undue influence of money in elections; publishing statements of wealth and antecedents of candidates; disclosing the qualifications of candidates; making elections free of hooliganism, muscle power and hoodlums; stopping the use of religion and communalism in elections; giving everyone equal opportunity in elections; ensuring transparency in elections; clarifying the role of the law enforcement agencies during elections; ensuring internal democracy and democratic practices within political parties; and increasing the number of women's seats in Parliament through direct elections. Later, on 22 November 2005, 'a unified minimum programme' was announced on behalf of the Alliance at a grand public meeting in Paltan Maidan.

Photo: Amirul Rajiv

Subsequently, the EC developed a reform agenda and held a series of consultations with major political parties, and members of the civil society and media to elicit their views on the proposed agenda. Based on these consultations, the EC finalized a set of amendments to the RPO, which was promulgated as an Ordinance by the last Caretaker Government. The amendments called for major reforms, including: mandatory registration of political parties; internal democracy within parties; nomination for Parliamentary elections by the central parliamentary board from the panels prepared by the local committees of political parties; disbanding their affiliated and associated bodies and foreign branches of political parties; increasing women's representation in political parties; increasing financial transparency of candidates and political parties; making provisions for negative voting; imposing more stringent qualification requirements for candidates running for Parliament; requiring

disclosure requirements from them; ensuring an independent secretariat for the Election Commission; and increased authority for the EC to disband and disqualify candidates. These reforms along with an electoral roll based on photographs, as proposed and demonstrated to be feasible by SHUJAN paved the way for free, fair and peaceful parliamentary elections held on December 29, 2008.

However, the newly elected ninth Parliament failed to ratify some of these reforms. For example, the requirement for the central parliamentary board to nominate parliamentary candidates from the panels prepared by local committees of political parties were replaced with a provision requiring the parliamentary board only to take into consideration the panel thus prepared. Thus, the reforms intended to give grassroots level political party activists a voice in the nomination of MP candidates was reversed, as the central nomination board would no longer be bound by the locally prepared panel choices. The Parliament also dropped the provision of negative voting from the RPO.

Not only did the Parliament reverse some of the reform initiatives, the political parties also, more seriously, refused to implement some of the significant reforms incorporated in the statute. For example, they totally ignored the provisions for practicing internal democracy within the parties and failed to disband their affiliated-associated bodies and foreign branches. They made only half-hearted efforts to ensure financial transparency and almost no effort to contain the influence of money on elections the issue that currently poses the biggest threat to our democratic system. In addition, although Awami League made some efforts to use grassroots recommendations in the nomination of the last parliamentary elections, BNP made no such effort. More significantly, our major political parties tried to undermine and intimidate the EC almost at every step of the way; as a result, the EC could not ensure the full enforcement of the electoral laws.

Our Constitution calls for a strong and autonomous local government system with responsibilities for planning and delivering pubic services as well as for economic development, and the maintenance of law and order. However, our politicians, despite repeated verbal commitments, failed to operationalise these constitutional commitments. To remedy this, sweeping reforms of our system of local government were attempted during the last Caretaker Government. A “Committee to Strengthen and Revitalise Local Government,” of which the present author was a member, was set up to recommend reform ideas. The Committee, in addition to making some general recommendations, drafted umbrella laws for both urban and rural local government.

The draft laws proposed, among other things, to: make the local bodies autonomous; eliminate the influence of MPs on local bodies; increase the representation of women to 40 percent on a rotational basis; create a Local Government Commission to propose a formula-based fiscal decentralisation as well as to protect elected representatives from being harassed for political reasons; hold non-partisan local elections, require disclosure of antecedents of candidates and their financial background; make the local representatives accountable to the people through provisions of 'Ward Sabhas' at the Union level; create a 'citizens' charter' for every local body to improve service delivery; increase the skills and capacities of elected representatives.

These proposed changes represented a first-ever effort toward creating a decentralised system of government with self-governing, accountable local bodies having meaningful women's representation. The Caretaker Government promulgated the draft laws into Ordinances and elections to four City Corporations Khulna, Barisal, Rajshahi and Sylhet and nine Paurashava elections were held in August 2008 under the Ordinances. Similarly, the Upazila elections of January 22, 2009 were also held under the new statutes.

Unfortunately, the newly elected Parliament failed to ratify any of these Ordinances; it enacted some self-serving local government related legislation instead. One of the most blatant self-serving actions of the ninth Parliament was to reintroduce the arcane 1998 Upazila Act with some amendments. A unique feature of the 1998 Upazila Act is that it brought the Upazila Parishad under the controlling authority of the MPs by making them Advisers and requiring the Parishad to adhere to their advice. In addition, the legislature let the Zila Parishad and the Local Government Commission Ordinances lapse. The new Parliament, however, passed new laws for City Corporation, Paurashava and Union Parishad, removing most significant reforms incorporated in the Ordinances, including women's representation on a rotational basis and disclosure requirements of candidates. (Disclosure requirements were kept in the City Corporations Act, 2009.) The only progressive reform retained in the new laws was the provision of Ward Sabhas, requiring the elected UP representatives to meet the voters twice a year for local level planning, selection of beneficiaries of various government schemes, and to ensure their transparency and accountability.

The gifting of controlling authority over Upazila Parishads to the MPs was a blatant self-serving act on the part of legislators, which defied constitutional provisions, Court orders and even good sense. Article 59 of our constitution calls for 'management of local affairs by locally elected persons' [Kudrat-E-Elahi Panir v. Bangladesh, 44DLR(AD)(1992)]. MPs are elected for national office, not for running local bodies. Furthermore, per Article 65, they are assigned the authority to exercise 'legislative powers' and according to Article 7, the exercise of such powers is limited 'only under, and by the authority' of the Constitution. Thus, MPs cannot overstep their constitutionally mandated authority to run local bodies.

In addition, a 2006 High Court judgment, which declared the appointment of District Ministers by a government notification unconstitutional, clearly forbids MPs from getting involved in local development activities. In Anwar Hossain Manju v. Bangladesh, [16BLT(HCD) (2008)] Justice ABM Khairul Haque and Justice ATM Fazle Kabir unequivocally stated: 'None of the ministers, whips and other functionaries mentioned in the above notifications can be appointed with respect to any of the districts mentioned therein. They do not have any function as such in respect to the districts, save and except their functions as ministers for the particular departments in the context of the entire country. Similarly, members of Parliament have no direct role or function, in respect to either development or maintenance of law and order, in the district or in other local administrative units. As such, the petitioner, a member of Parliament, has no function in respect to Pirojpur district.'

The laws on local government enacted by the ninth Parliament not only defy constitutional provisions and Court orders, they are also inconsistent with each other and are regressive in nature. As such, they do not meet the basic features of local government, which include: autonomy, adequate finances, significant functions, required functionaries etc. for local bodies. Thus, local government institutions in Bangladesh are in a pathetic state at this time, in terms of both their functioning and legislative framework. Needless to say, without a strong and vibrant local government system, many of the challenges such as hunger, poverty, economic development and governance failures that we face as a nation, cannot be adequately addressed. Such a system, along with a policy shift to do away with deprivation of the common people and create opportunities for them, will go a long way toward that end.

The new government has reversed two other significant reforms efforts initiated during the last Caretaker Government. This includes attempts to weaken and put shackles on the Anti-Corruption Commission (ACC), and to let the Ordinance governing the selection of judges lapse. The government's efforts to weaken the ACC, would make it, according to its Chairman, a toothless and clawless tiger, while letting the Ordinance governing the selection of judges elapse allows the government to continue hiring partisan and unqualified individuals as justices of the Supreme Court. Such reckless actions obviously are not conducive to the much desired democratic consolidation in Bangladesh. Thus, efforts to reform Bangladesh's political and governance system has been like climbing a greasy pole.

Dr. Badiul Alam Majumdar, Secretary, SHUJAN Citizens for Good Governance.

Reference by: The Daily Star, 17 March 2011

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