Democracy in Bangladesh: A Report Card

Bangladesh returned to electoral democracy in January 2009 after two years under a military ‘caretaker’ government. An alliance led by the Awami League (AL) secured a landslide victory in freely conducted election held in late 2008 under the auspices of the caretaker system. There were hopes that the political crisis which had necessitated a military-backed caretaker regime, and the calls between 2007 and 2008 for reforming the political system, would provide sufficient impetus for the nation’s political elites to work towards a transparent, accountable, and participatory democratic system. This paper examines political developments in the country over the past three and a half years to assess progress towards this goal.

Focusing on the recent constitutional changes, the law and order situation, and the functioning of parliament, I argue that not only has there been very little progress towards democratic consolidation, but that the country has returned to the acrimonious political environment, and is likely heading for a repeat of the political crisis in 2006.

Constitutional Change

On 30 June 2012, the Bangladesh Parliament, in the absence of opposition members, passed the Fifteenth Amendment of the Constitution. The amendment scrapped the proviso that parliamentary elections be held under a non-partisan caretaker government (CTG). Within days the President assented and the changes became the law of the land.

The proviso was included in 1996 through the Thirteenth amendment of the constitution. Under enormous pressure and street agitations launched by the then opposition alliance led by the Awami League, the ruling Bangladesh Nationalist Party (BNP) was compelled to pass the amendment and make a caretaker government an integral part of the constitution. Subsequent elections (1996 and 2001) were held under the CTG, headed by former Chief Justices of the Supreme Court as stipulated in the constitution.  The BNP, in its second stint in power (2001-2006), made changes to the retirement age of the Chief Justice of the Supreme Court to ensure that the next CTG would be headed by the immediate past Chief Justice who is known to be a BNP supporter. As the term of the BNP drew to a close in October 2006, the AL refused to accept the former Chief Justice as the head of the CTG; street agitation, violence and political impasse ensued. Almost three months of political imbroglio, particularly the blatant partisan actions of the BNP appointed President, led to the declaration of a state of emergency on 11 January 2007. A new technocratic caretaker government, backed by the military was appointed. The CTG soon declared their intention to implement a series of political reform measures. The government charged two former Prime Ministers, Sheikh Hasina and Khaleda Zia, with corruption cases and attempted to exile them both, however with little success. Despite early popular support, the CTG failed to bring about long-term changes in the political culture and achieved limited success in bringing transparency to institutions required for smooth functioning  of democracy. While previous caretaker governments (1996, 2001) were in power for 90 days each and made no other significant decisions save organizing the election, the CTG ruled the country for two years.

The caretaker regime (2007-08) was credited with separation of the judiciary from the executive, providing autonomy to the Election Commission (EC), strengthening the Anti-Corruption Commission (ACC), completing an almost error free voter roll, issuing national IDs to almost all adult citizens and conducting a peaceful and fair election, but it angered many politicians as they were charged with corruption and faced public humiliation. The legal loopholes, procedural errors and the duration of the regime didn’t allow the government to ensure that these convictions were upheld by the superior civilian courts, but it did bring a sea change in the public perception that politicians are invincible. The efforts to institutionalize transparent political processes were not rendered irreversible. Many steps taken by the CTG were ratified by the newly elected government after January 2009, but there was a suspicion that the ruling party would use any opportunity to scrap the CTG system altogether.

The opportunity arrived when the Appellate Division of the Supreme Court declared the Thirteenth Amendment unconstitutional in a verdict in May 2011.  However, the short verdict stated that the system may be utilized for holding two more parliamentary elections. The court also expressed its expectation that the parliament would take steps to amend the provisions and exclude chief justices and other judges of the Appellate Division from heading caretaker governments. Two points need to be borne in mind: that the court issued a ‘short verdict’ (meaning that a complete verdict was forthcoming); and that the government had already initiated the process of amending the constitution based on the March 2010 court verdict on the Fifth Amendment ( which provided legitimacy to the military regime which came to power in 1975).

A fifteen-member parliamentary committee, without the participation of the BNP, drafted the changes to the Constitution after consulting representatives from various strata of society. Although most of the eight amicus curie of the thirteenth amendment case and representatives of the civil society organizations, underscored the need for heeding the Supreme Court’s suggestion to hold the next two elections under a revised format of the CTG, the ruling party disposed of the provision altogether in the fifteenth amendment of the constitution. In an ironic twist of events, the BNP, which had opposed the AL’s demand for a caretaker government in 1996, now called for the retention of the provision providing for the caretaker system in the Constitution and, to this end, launched an agenda of street agitation and general strikes. The opposition alleged that the AL was removing the provision in order to rig the next general election, which is scheduled to be held between late 2013 and 24 January 2014.

In addition to the annulment of the CTG, the fifteenth amendment added two provisos to the constitution: Articles 7A and 7B. Article 7A made any attempt to abrogate or suspend the constitution an act of sedition, punishable by death. Article 7B prohibited any further amendments to 55 clauses of constitution describing these as the ‘basic structure of the constitution.’

Article 7A, although ostensibly aimed at the military, provides power to the government to clamp down on freedom of expression. Considering other developments which indicate the regime’s discomfort with criticism, many citizens suspected the motive behind the move. Perhaps the statement of the Prime Minister in parliament in regard to criticism of members of her cabinet by her own party members is indicative of the government’s attitude towards any dissent. On 25 August 2011, the Prime Minister accused them of “arming her enemies” after they made critical comments about some members of her cabinet, specifically Communications Minister Syed Abul Hossain and Shipping Minister Shahjahan Khan. Mr Hossain was under fire for failing to renovate roads and highways, and Mr. Khan for recommending that unqualified drivers be given long-distance driving permits. It was widely reported and believed that these measures had led to a dramatic increase in road accidents. The death of two internationally renowned young Bangladeshi film-makers made the issue a public outcry. The ruling party’s General Secretary (and a Minister) Syed Ashraful Islam accused the media of “creating the ground for Hasina’s death.” This sent a chilling message that any dissent would be seen as a part of a conspiracy hatched by enemies to kill the PM.

Article 7B has rendered any future amendments to the constitution almost impossible. According to legal experts, the entire constitution may have to be scrapped. Interestingly, with these two Articles in force, making such a statement may be construed as a seditious act. One legal expert concluded, ‘The most dangerous part is [that] I cannot say this in public, because Article 7A means it could be considered as sedition, and I would be sentenced to death!’[1]

After the fifteenth amendment the BNP announced that it would not participate in any elections under a partisan government. It not only threatened to boycott the next election if it was held under a partisan political regime, but also stepped up efforts to mobilize popular support in favour of its stance. The BNP, although opposed to the annulment of the CTG, didn’t voice concerns regarding these two Articles.

The Fifteenth amendment has also created an unprecedented option of holding the parliamentary election without the dissolution of the existing parliament. Article 123 (3) states, ‘a general election of the members of parliament shall be held (a) in the case of a dissolution by reason of the expiration of the term within the 90 days preceding such dissolution.’ As such, the elections will be held at a time when an elected parliament will remain effective. This is not only inconsistent with the Westminster style parliamentary system (e.g. in Australia, New Zealand, Canada and Britain) where parliament is dissolved first before the new parliamentary election, but also contravenes several provisions of the Bangladesh constitution. For example, Article 66 of the constitution disqualifies anyone holding an ‘office of profit’ from being a member of parliament.[2] Thus, an incumbent MP will either have to be barred from contesting or the election of significant numbers of parliamentary seats will face legal challenges. Allowing an incumbent to contest the election will also be in contravention to Articles 19 and 27 which ensure equality of all citizens in the eyes of the law. As an MP will enjoy state privileges, by virtue of his/her position, the situation will not create a level-playing field for other contestants. A former member of the Election Commission, M Shakhawat Hossain also noted that Article 123(3) of the constitution is contrary to the Clause 12(1) (3) of the Representative of People Ordinance (RPO), which guides the election process.[3] He also queried whether the official Gazette notification of the results will constitute a violation of Article 65(2), which stipulates that the parliament shall consist of 300 elected members, one from each constituency elected through direct election. Thus until a seat is vacated the government cannot declare another individual as an elected member in the same seat to represent the same constituency. Thus, if the government officially validates the results, the country will end up having two elected parliaments at the same time, at least on paper.

Despite such obvious and serious discrepancies, the ruling party and the PM Sheikh Hasina unequivocally stated that the next parliamentary election will be held under the present government, and that no ‘unelected government’ will be allowed to be in power.[4] In the face of criticisms of opposition political parties and members of civil society, the PM offered to consider forming a small interim all-party cabinet ahead of the next general elections if the opposition joins the cabinet.[5] The BNP declined the offer, and called for reversal of the amendment and the reintroduction of the CTG system.

The issue not only continued to dominate the public debate, but took a different turn when the Seven Supreme Court justices made their 342-page complete verdict public on 17 September 2012. The full text of the verdict revealed that 4 judges favoured complete removal of the caretaker system, 2 were in favour of continuation, and one judge suggested that it be decided by the parliament. While there were differences among the justices on various aspects of the case, there was unanimity that two forthcoming elections could be held under caretaker governments. The chief justice in writing the majority opinion said that ‘the Parliament should be dissolved with a rational period of time, such as 42 days, left to the national elections.’ The majority of the judges further observed that ‘the senior lawyers of the country expressed apprehension that there would be anarchy if the ensuing election is held under party government. And we cannot ignore their view.’ The current constitution does not reflect the majority opinion, nor does it reflect their observation about the potential downside of holding the election under a party government. The full verdict also generated controversy because of its variance with the short verdict on the nature of the caretaker regime: the short verdict suggested that a caretaker government can be formed without Supreme Court justices; the complete verdict introduced the idea of elected caretaker representatives. This alteration has been underscored by three dissenting judges.[6]

The prime minister added further confusion in regard to the tenure of  parliament and the form of the cabinet during the election when she claimed in a speech to parliament that, ‘The polls will not be held by retaining the House…. When the time comes, I will meet the president and tell him that we want election. It is the jurisdiction of the president to decide when parliament will be dissolved and whether the current cabinet will continue or its size will be reduced.’[7] Her statement is not only inconsistent with Article 123 (3) (a) of the constitution after the 15^th amendment, but contrary to Article 48 (3) of the constitution which stipulates: “In the exercise of all his functions, save only that of appointing the prime minister pursuant to clause (3) of article 56 and the chief justice pursuant to clause (1) of article 95, the president shall act in accordance with the advice of the prime minister.”

Notwithstanding these confusions and contradictory statements, the main opposition BNP, remained unmoved insisting that it would not join any poll unless it is held under a caretaker government.[8] This uncompromising position is reminiscent of 2006 when the AL was determined not to participate in elections unless their demands were met. The election, as we all know, did not take place.

Law and Order Situation

The great expectations of a new beginning that had characterized 2009 began to fade in the following year as the Government failed to rein in its youth activists engaged in intra-party violence and extortion, and to address the deteriorating law and order situation. The situation worsened in following years due to increasing clashes between the activists of the BNP and the AL, and between the law enforcing agencies and opposition activists. The events surrounding the BNP’s “March to Dhaka” program, scheduled on 12 March 2012, demonstrates the heavy-handed tactics of the government. The capital was practically locked down for two days to prevent the rally and BNP activists were detained without charge. Scathing criticisms of the government from all quarters resulted.[9] Incidents of government going after the opposition have become more frequent as the BNP attempted to step up the pressure on government.

But the most disturbing developments in regard to the law and order situation are the increase in the number of extrajudicial killings, forced disappearances and incidents of mob justice. All of them have serious implications for the social and political stability of the country.

Increased incidence of extra judicial killings including deaths in police custody and torture by law enforcement agencies became a worrying development after 2004. Human Rights groups have linked the deaths to the formation of the Rapid Action Battalion (RAB), an elite police force, in that year. These incidents have drawn criticism from various national and international human rights organizations including Human Rights Watch (HRW) and Amnesty International (AI). The Awami League promised in its election manifesto to bring an end to these practices. But soon after assuming state power, the party backtracked on its promised zero-tolerance policy. The government continues to deny incidents of extrajudicial killings, often described as ‘crossfire’, while the number keeps on growing. According to Odhikar, a Bangladeshi Human Rights Organization, 333 people have been killed between January 2009 and June 2012 (Table 1).

Table 1:

‘Crossfire’ Incidents,  Jan 2009-June 2012

The case of 16-year-old college student Limon Hossain has become the most glaring example of the excesses of the RAB and the impunity it enjoys. On 23 March 2011, Limon was shot in the leg at close range. Limon Hossain said he was alone, bringing cattle home, when RAB personnel arrested and shot him. RAB alleged that he was a mem

ber of a criminal gang. Doctors amputated his left leg to save his life. Despite no evidence of his involvement with any criminal gang, the RAB and high level government officials including the Home Minister and Defense Advisor of the PM insisted that Limon and his family were involved with a criminal gang. These comments were made at a time when investigations were ongoing. ‘In June 2011, following local and international outcry over the incident, Prime Minister Sheikh Hasina ordered an investigation into the RAB officers involved in the incident. She also said that ongoing investigations had produced no evidence to show that Hossain had any involvement with terrorist activities.’[10] Within hours, the government withdrew the PM’s statement. While the official police investigation into complaints filed on 10 April 2011 by Hossain’s family against six RAB members remain incomplete, on 8 July 2012, the government disclosed that it had charged Hossain with obstructing Rapid Action Battalion operations and attempting to injure and kill RAB personnel. Little over a month later (on 14 August 2012) the police issued a report which found no evidence of Rapid Action Battalion involvement in Hossain’s shooting. The persecution of Limon and his family continued in subsequent months.

On 20 August 2012, a group of alleged informants of the RAB attacked Limon, his mother and a brother on the streets of his home village. An attacker suffered a heart attack and the government filed a murder case against Limon and his family. The case is now in court.

The number of people who have been victims of torture in custody is also a matter of grave concern. Available statistics show that at least 246 people have been tortured (Table 2) until June 2012.

Table 2:

Torture in Custody, Jan 2009-June 2012

A growing concern among human rights activists in the past year has been the increasing incidence of enforced disappearances. A number of cases have been reported in recent years where relatives and friends claimed that individuals have been “abducted’ by plain clothed members of law enforcing agencies including the RAB. The government denies any involvement either on the part of the police or the RAB. The issue drew significant media attention after Iliyas Ali, a BNP leader and his chauffeur, went missing in April 2012.[11] Another disappearance that drew international media attention and criticism from US secretary of state Hilary Clinton is that of Aminul Islam, a labor leader.[12]  The number of disappearances reported in the press in the past three and a half years is as follows: two in 2009, 18 in 2010, 30 in 2011, and 15 between January and June 2012 (Table 3). Other sources claim the number of disappeared since January 2010 at over 100 persons, of whom 21 have been found dead.[13]

Table 3:

Incidence of Disappearances

Trust and confidence in the law enforcing agencies have declined significantly in recent years.  The impunity of the ruling party activists on the one hand and widespread corruption within law enforcing agencies and the lower level courts on the other have created a an impression that justice is not being served. This sense of despair has encouraged citizens to take the law into their own hands. This has resulted in a growing incidence of public lynching. Human Rights groups are closely monitoring such incidents after a sudden spike in 2009. According to Odhikar, a total of 524 incidents of lynching have been reported in the press since January 2009. Alarmingly, in some instances the police encouraged mob justice.

Table 4:

Incidence of Lynching

Functioning of Parliament

Since 1991, despite free and fair elections, the parliament has become one of the most dysfunctional institutions of the country. A report by a parliamentary watchdog published in June 2011 noted that the percentage of boycott of sessions was 34 in the fifth parliament (1991-1996), 43 in the seventh parliament (1996-2001), and 60 in the eighth parliament (2001-2006). As for the ninth parliament (2009-present) it stood at 80 percent in September 2012. The BNP-led opposition lawmakers have boycotted 233 sittings in the first three years. One press report described this as ‘a new record in the country’s House boycott culture.’[14] In all instances, the opposition evidently feels that it is not accountable to anybody and does not owe anyone an explanation for being absent. Ruling party members have the same mindset. Otherwise how can one explain the frequent quorum crisis that delayed the sittings when the ruling party alone has two-thirds majority and the ruling coalition has three-fourths of parliament members? On an average, each sitting was delayed by 39 minutes according to the report of the watchdog. In the first six sessions of the ninth parliament, Tk 19 crore was wasted just in waiting for the lawmakers to turn up.

Conclusion

The preceding discussion highlights three major political developments and demonstrates that there are signs of stress on democracy. The acrimonious relationship between the ruling party and the opposition has not only returned but has reached a new low. The constitutional amendment has created significant roadblocks towards holding an election participated in by all parties. Our discussion has also demonstrated that the ruling regime is increasingly relying on coercive measures rather than engaging in a dialogue with the opposition parties to reach a compromise. The combination of the ruling party’s poor governance performance of the past three and a half years and the opposition parties’ obdurate behavior is bound to make observers of Bangladeshi politics worried. The indications are that the country is already on the path to another round of confrontation. The question is will the democracy be the casualty o