A way out of the constitutional riddle

parliament

Ifti Rashid, Saiful Haque –

 

In the past, political deadlocks have brought great cost to the nation. We seem to be moving in the same direction again as local and foreign investment is slowing down and the spectre of political violence looms large.

There is much consternation over the constitutional impasse ahead of the next general election. The political stalemate on the election-time government has pitted the two main parties: the Awami League (AL) and Bangladesh Nationalist Party (BNP), against each other, while fringe leftist and rightist groups are trying to fish in the troubled waters.

In May 2011, the Supreme Court declared the constitutional provision for a caretaker administration during general elections as illegal. Though the verdict kept the option of holding the next two general elections under a caretaker government, in June 2011 Parliament passed the fifteenth amendment scrapping the system altogether.

1. The riddle
Caretaker government is not a foolproof mechanism.

The caretaker government system itself was not above controversy, as losing sides did not hesitate to raise allegations of rigging and manipulation despite the “neutral” character of the election-time government.

In 1996 and 2008, BNP claimed that the results were “manipulated and stage-managed” by the caretaker administration, while the AL alleged “crude rigging” in 2001. Faith in the caretaker government system by either side has been dependent on their performance in the general election. Moreover, the caretaker system raised the possibility of politicising both the judiciary and civil society.

Political impasse: Déjà vu?

Currently, the AL wants to hold general elections under an elected administration, while the BNP is demanding restoration of the non-party caretaker government. There is a sense of déjà vu with the tables turned as the AL was campaigning for a caretaker government but the BNP rejected it as unconstitutional pre-1996.

In the past, political deadlocks have brought great cost to the nation. We seem to be moving in the same direction again as local and foreign investment is slowing down and the spectre of political violence looms large.

The political deadlock is heightened this time around because of the high stakes perceived by both sides. It is not only a battle of the alliances, but the survival of rival families at the helm of their respective parties is in question.

A resounding victory by the AL or BNP will confirm the line of dynastic succession in both parties, while an embarrassing defeat may lead to calls for leadership change and reform.

The War Crimes Tribunal, including its fallouts in the form of Shahbagh and Hefazat, have made the political environment even more hostile. The crisis has been exacerbated further by politicized institutions, including a weak and divided civil society that has been unable to take up its earlier role as a trusted mediator.

A silver lining?

Though doomsayers predict the deadlock will hinder the democratic process, the silver lining is that the constitution allows enough flexibility to find a creative solution to the satisfaction of both sides: an elected government under a constitutional framework (AL) with a non-partisan character (BNP).

The viable options are:

 

Constitutional options

Prime ministerAs per Article 57 (3), the PM is due to remain in office till a successor is “entered upon office(That is continue in her position as PM during the election).” There can be an alternative PM only if another MP commands majority support in the parliament.One possible solution could arise if a parliament backs the president to appoint a neutral person, who can be elected as an independent MP from a vacated seat. Another option is to elect someone other than the PM from AL MPs who would be more acceptable to the opposition. However, past experience shows finding someone acceptable to both sides is near to impossible making these alternative options impracticable.MinistersArticle 56 (1) states it is possible to appoint neutral persons from outside Parliament as technocrats in the cabinet, provided they are not more than one-tenth of the total number of members. This means that if there are 20 Ministers in the election-time government, two could be non-partisan technocrats appointed on the basis of consensus. Both AL and BNP could nominate one person each for the technocrat slots.A possible solution could be appointing an all-party Cabinet with 18 ministers from the AL and BNP, leaving two slots open for technocrats who would look after key portfolios critical to the election, such as public administration, Home Affairs and Defence. To make this option palatable to the BNP, AL should extend the olive branch allowing equal representation in the election-time government cabinet.An additional layer of oversight can be added by appointing ten Advisers to the Prime Minister’s Office (PMO) under the rules of business to ensure the smooth and impartial functioning of key ministries during the election. Under the Rules of Business 3 (B) (i) (ii) and (iii), the PM could appoint ten fresh neutral technocrat PMO advisers to assist the cabinet after asking the incumbent advisers to resign from their positions. AL and BNP could nominate five advisers each in a system that would not be much different from the role currently played by Advisers in running key ministries.

There can be a number of variants to the above solutions, such as a smaller cabinet with space for one neutral minister or a larger cabinet with three neutral ministers. Another option could be the ten advisers running key ministries under the PM without any ministers in the cabinet.

Can a neutral minister or adviser serve as the PM? In this respect, article (56) is explicit that the PM needs to be a MP commanding majority support in the parliament. Though the constitution appears to be inflexible about the eligibility to be PM, there is nothing barring the PM remaining in her position but going on leave during the election and delegating key responsibilities other cabinet members.

General election

Article 72 (3) states parliament will stand dissolved five years after its first seating unless dissolved earlier by the president upon advice from the PM as per 72 (1) and 57 (2). Given the first seating of the ninth parliament was on January 25, 2009, it is due to automatically expire on January 24, 2014.

The Constitution offers two options for a time-frame before or after the dissolution of the Parliament to hold the general election.

As per Article 123 (3) (a), the automatic dissolution of the Parliament on January 24, 2014 would mean that general elections would need to be held ninety days before that date. This means the election must be held between October 25, 2013 and January 24, 2014.

However, this time-frame is not set in stone as Article 123 (3) (b) offers an alternative to hold elections ninety days after the dissolution of the parliament provided it is dissolved by the president upon advice by the PM before its automatic expiry on January 24, 2014. In this respect, 72 (1) and 57 (2) stipulates that the president can dissolve the parliament on the basis of written advice from the PM.

If the president dissolves the parliament following the PM’s advice even on January 24, the general election can be within ninety days after that date i.e. January 25 to April 25, 2014. Section 123 (4) allows for emergency situations to extend the time-frame by a further ninety days i.e. Potentially until July 24, 2014. If the latter option is pursued, the government can continue business as usual for its full five year term without the need for any constitutional amendment.

The government should consider the option offered by 123 (3) (b) to not only complete its full five year term but also allow time for a consensus between political parties. Moreover, holding the elections after the dissolution of the parliament will create a more-level playing field.

Members of parliament

According to article 66 (1) (c), the seat of a MP is vacated upon dissolution of parliament. This means if the election takes place under article 123 (3) (a) with an automatic dissolution of parliament on January 24, 2014, general elections would be held while the parliament is still legal and valid. This means outgoing MPs would continue in their positions till the expiry of their terms.

As per article 66, there is no legal bar for incumbent MPs to seek reelection. Given the inevitable influence of current MPs over the local administration, this may hinder a level-playing field during the general election.

However, this can be avoided by holding the general elections after the parliament is dissolved as per article 123 (3) (b). In this alternative scenario, elections would take place after January 25, 2014 when the MPs would cease to hold office. This would undoubtedly create a more level-playing field as candidates from both parties would be on equal footing instead during the election period.

2. Interim government
What do existing constitutional provisions stipulate about the election-time government? Actually, almost nothing. Except for Article 57 (3) making it mandatory for the PM to hold office till a successor takes oath and 58 (3) stating there is no legal bar for Ministers to continue in their positions, the constitution is virtually silent on the modalities of an interim government.

This can be a boon than a bane. Given the lack of constitutional conditions on the size, scope, structure and power of the interim government, a legislation can be passed in Parliament or an ordinance promulgated by the President to determine the modalities of the interim government as per Article 124 or 93.

The proposed Interim Government Act or Ordinance could focus on the following areas:

Interim Government

  • Defining the interim period
  • Limiting the power of the PM
  • Determining size of the interim cabinet, including party representation
  • Specifying the role of the PMO Advisory council
  • Vesting some executive powers of the government with the election commission (EC)

Constitutional interim government, non-partisan character

The constitution actually provides sufficient flexibility for both political parties to reach an amicable solution to resolve the political deadlock.

The AL announced earlier it may consider an all-party interim administration, while the BNP has made it known it will accept a non-partisan government without the caretaker terminology.

In reality then, both parties are not so far apart as it seems from their frequent rhetorical “war cries.” This opens the doors for imaginative solutions ranging from all-party elected cabinet to non-partisan technocrat advisors running the show during the election.

At this point, the only constitutional compulsion that may be a sticking point is the PM remaining in her position during the election period. This can be addressed by creative options like the PM going on leave delegating powers to a neutral minister, electing an alternative AL MP acceptable to the opposition or even nominating a neutral person in a vacated seat.

3. Our solution:

A way out
  • It is recommended a solution to the current impasse would be, as follows:
  • The government completing its five years term followed by the President dissolving Parliament upon the advice of the PM on January 24 before its natural expiry
  • Holding general elections between January 25 to April 25, 2014, allowing a level-playing field for all candidates following the dissolution of the Parliament
  • The PM convening a dialogue between the AL and BNP for negotiations on the modalities of the interim government to enacted as a legislation or ordinance before January 2014
  • Agreement on the PM remaining in office as per constitutional compulsions, but with limited executive powers and option of going on leave
  • Agreement on appointing neutral technocrat ministers and advisers as per the constitution and rules of business respectively for a non-partisan character of the interim government
  • Appointing an all-party elected cabinet of 20 members with equal representation of from the AL and BNP
  • Appointment of two neutral Ministers as technocrats in the cabinet to be in charge of public administration, Home Affairs and Defense with one nomination each from the AL and BNP;
  • Appointing ten neutral advisers to the PM for oversight and support to the interim government with five nominations each from the AL and BNP
  • Empowering the EC to take key election-related decisions, including transfer of public officials and deployment of security forces from one month prior to the election
  • Signing a ‘Charter of Peace’ between the AL and BNP with a commitment to shun violence pre, during and post-election

While the above compromise formula may not be acceptable to both sides at this point, these options should be put on the table for negotiations between the AL and BNP. It provides for an interim government of a non-partisan character within a constitutional framework. There is no alternative that can overcome deadlock but immediate dialogue between both parties, along these type of lines.

Any negotiated constitutional solution would be contingent upon some concessions from either side. BNP would have to concede on the incumbent PM remaining in office with limited powers in return for the AL accepting neutral ministers/advisers and dissolving the Parliament prior to the general election. Other issues, including delegating responsibilities of key ministries or empowering the EC, can be ironed out once the major issues are resolved.

4. The priority
Article 123 (3) (b) holds the key for a consensus between the AL and BNP to hold free, fair and credible elections. It is possible to delay the election by the government completing its full term within the existing constitutional framework without the need for amendments, allowing extra time for a constructive dialogue to resolve the current political deadlock.

If there is no consensus between both parties on the interim government, there will be disastrous consequences for the nation. It is imperative for both sides to see this bigger picture as we cannot afford further violence.

Moreover, in the past, failure to reach consensus has invited extra-constitutional adventurism. The two parties must surely not let their rivalry allow them to forget they stand to suffer the most if the democratic process is hindered?

It is time to break the constitutional riddle. After all, elections are not an end in themselves, but a means to the end of representing the wishes of the people.

 

Saiful Haque is a governance and development consultant

Ifti Rashid is a political and security analyst, currently a PhD Candidate in the National Centre for South Asian Studies, Monash University. He is a columnist of the Dhaka Tribune and co-founder of PARMA (Political and Risk Management Analysis) Consultants. E-mail: ifti.rashid@live.com

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