Bangladesh: A Republic, If You Can Keep It
A State of Emergency has been declared in Bangladesh. Bangladesh has, by a quirk in its Constitution, been legally transformed into a dictatorship. A democracy of 125 million people is now at the mercy of a handful of unelected rulers and the military.
Bangladesh has given up a lot of essential liberty for a little bit of temporary security - it remains to be seen whether it deserves or will get either.
Bangladesh was scheduled to hold national parliamentary elections on January 22, 2007. However, those elections were postponed and a State of Emergency was declared by the President on January 9th. Now Bangladesh faces an uncertain future.
Bangladesh is a parliamentary democracy with a largely ceremonial President. An unusual aspect of Bangladesh’s political system is that Bangladesh’s elections are held under a non-partisan Caretaker Government. This is to ensure free and fair elections. The Caretaker Government system was added to the Constitution in 1996 after widespread public protests in response to a fraudulent election held in February of that year. Later that year, Bangladesh held its first free and fair elections under the Caretaker Government.
Late last year, the five year term of the government led by the Bangladesh Nationalist Party (BNP), a center-right party allied with right wing Islamist parties, ended and the prime minister, Khaleda Zia, handed over power to a Caretaker Government. However, the handover did not go smoothly.
A Caretaker Government consists of a Chief Advisor and up to ten other Advisors who ensure that the executive functions of the government continue to function properly while assisting in the preparation for an election to be held within 90 days of assuming power. Under the Bangladesh Constitution, according to Article 58C, the Chief Advisor is to be appointed according to the following rules:
(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.
(4) If no retired Chief Justice is available or willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.
(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.
(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.
Amid protests from the opposition parties, Iajuddin Ahmed, the BNP appointed President, failed to follow the rules for choosing a Chief Advisor and instead himself assumed the functions of the Chief Advisor by directly invoking Article 58C(5) of the Constitution.
After appointing himself Chief Advisor, he appointed and then ignored the remaining Advisors. As the opposition protests increased, he ordered the army onto the streets, ostensibly to protect the elections. The opposition parties, led by the Awami League, demanded the resignation of the Chief Advisor (President) and the postponement of elections. They argued that the national voter list was manipulated to enable the BNP to retain power in another fraudulent election. The opposition argued that the Chief Advisor (President) was biased and should step down.
Eventually, as the opposition parties boycotted the elections and began a program of nationwide strikes, international pressure began to build up on the President. The United Nations, the European Union, and other international election observers withdrew support for the elections and urged its postponement. Finally, under immense pressure, Iajuddin Ahmed resigned as Chief Advisor on January 9th. However, before he resigned he declared a State of Emergency.
The Bangladesh Constitution has an unfortunate provision for declaring a State of Emergency. Under normal circumstances a State of Emergency cannot be declared without the consent of the prime minister and it must also be presented to the parliament for approval at the earliest possible time. Article 141A(1 & 2) lays out the procedure for declaring a State of Emergency:
(1) If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency:
Provided that such Proclamation shall require for its validity the prior counter signature of the Prime Minister.
(2) A Proclamation of Emergency-
- (a) may be revoked by a subsequent Proclamation;
- (b) shall be laid before Parliament;
- (c) shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament:
- Provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-constitution, unless before that expiration of the meets after its re-constitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament. [Emphasis added by me.]
However, when there is a Caretaker Government, there is no parliament and no prime minister. There is a provision in the Constitution which gives the President authority to act on his own under a Caretaker Government. Article 58E states:
Notwithstanding anything contained in articles 48(3), 141A(1) and 141C(1) of the Constitution, during the period the Non-Party Care-taker government is functioning, provisions in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter-signature shall be ineffective. [Emphasis added by me.]
Article 58D of the Constitution spells out the normal functioning of the Caretaker Government:
(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions it shall not make any policy decision.
(2) The Non-Party Care-taker Government shall give to the Election Commission all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially.
It was not envisioned that a Caretaker Government would do much more than ensure the functioning of government and move quickly toward an election. It was certainly not envisioned that a State of Emergency would be declared during the tenure of a Caretaker Government. However, taken together, Article 141A(1) and Article 58E give the President almost dictatorial powers under the Caretaker Government. This President, Iajuddin Ahmed, used that combination of Articles to unilaterally declare the State of Emergency.
The State of Emergency that was declared also suspends basic rights normally guaranteed in the Constitution. Article 141B of the Constitution states:
While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III of this Constitution, be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. [Emphasis added by me.]
Articles 36, 37, 38, 39, 40 and 42 of the Constitution collectively guarantee freedom of movement, freedom of assembly, freedom of association, freedom of thought and conscience, freedom of speech, freedom of procession or occupation, and the right to property. In other words, these articles collectively guarantee rights that underpin democratic societies. Thankfully, Article 41, the freedom of religion, cannot be suspended under a State of Emergency.
Having declared the State of Emergency and called out the army, Iajuddin Ahmed resigned as Chief Advisor and then appointed a private citizen, a former central banker named Fakhruddin Ahmed (no relation to the President), as the Chief Advisor. This appointment once again violates Article 58C of the Constitution. A further 5 Advisors have now been appointed.
Bangladesh is in uncharted constitutional waters. According to the Constitution, the elections must be held within 90 days of the previous government leaving power, barring an act of God. The elections have been postponed and there is no constitutional provision to reschedule the elections. The President is now not accountable to the parliament or the people. The State of Emergency, according to the Constitution, will expire in 120 days. However, there is nothing preventing the President from declaring another State of Emergency to extend the current one. Since he has no prime minister to countersign his declaration and no parliament to check the State of Emergency, the President under the Caretaker Government has unlimited power.
Bangladesh is now at the mercy of one unelected President, one unconstitutionally appointed Chief Advisor, and 5 other unelected Advisors. Bangladesh is also now at the mercy of the military. Bangladesh has a long and brutal history of military coups and takeovers. It now stands at the mercy of the military once again. What has occurred in Bangladesh is nothing short of a constitutional coup d’état.
The hard earned democracy in Bangladesh may be slipping away. Already rules have been passed by the Caretaker Government to curb fundamental rights, the press has been threatened, and the military and the paramilitary forces have begun raiding suspected political criminals and corrupt leaders.
The optimistic observer will say that these measures are temporary and the State of Emergency will soon be lifted and a free and fair election will be held. However, all decisions now depend on unelected leaders and the military. This ruling group may choose to steer the country out of this crisis or may choose to hand over power to the military - it remains to be seen.
If Bangladesh comes out of this period of uncertainty, it will surely need to revisit the provisions in the Constitution that allow one man to control the fate of the country, without any checks or balances. Today, Bangladesh is barely a republic, and it is very much in doubt whether the people of Bangladesh can keep it.
[Disclaimer: My father was one of three Election Commissioners during the first free and fair elections held in June of 1996 under the Caretaker Government.]