Bangladesh at Forty Five

A. Qayyum Khan

Introduction

In the winter of 1996-97, the Center for South Asian Studies in Columbia University where
Professor Rounuq Jahan was director hosted a two and a half day conference titled "Bangladesh
at Twenty Five." I attended the event. It was a great gathering of Bangladeshi scholars as well as
scholars from other countries who presented research papers on various aspects of life in
Bangladesh. Amartya Sen was the keynote speaker. Topics covered a wide range of subjects like
constitutional law and politics, economics and development, society, history and culture, as well
as other matters of contemporary interest. For me, it was an unique opportunity to listen to these
speakers talk about Bangladesh something that I had never experienced in my decade and a half
stay in the US. Each research paper was followed by lively questions and answers and many of
the questions came from people who were also experts in their fields. In the end, I came out with
a feeling of accomplishment and felt that the event provided a realistic appraisal of life in
Bangladesh.

I shall disappoint you if I have created an impression that my attempt to talk about Bangladesh at
forty five would be something similar to the event at Columbia twenty years ago. I simply don't
have the knowledge, resources or the time to write papers that could even be comparable in rigor
to the papers that were presented there. My aim is more modest.

On December 16, 1971, Bangladesh made its emergence in the 'global stage of independent
states' with an empty treasury, a destroyed infrastructure and a traumatized population who had
suffered inhuman tragedy at the hands of the Pakistan Army. A large part of the population was
displaced by the war, many homes were destroyed, there were many families where the principal
breadwinner was killed and numerous women were raped. In 1974, the country faced yet another
human tragedy in the form of a famine where hundreds of thousands perished. At that time,
pundits of various colors wrote extensively on why Bangladesh would not survive as an
independent nation and some even characterized us as a 'bottomless basket'. These doomsday
pundits were wrong. Not only have we survived, one could even argue that we have also
prospered. In the past forty five years, while the Bangladesh population has doubled compared to
1971-72 levels at the same time our agricultural output has almost quadrupled. For the past
decade and a half, we have fed ourselves from our own resources and there is even a surplus for
export. Today, our textile and garment industry is the envy of the world. We have made
impressive strides in several industries such as leather products, frozen food, pharmaceuticals,
ship breaking and shipbuilding, only to name a few. Our social progress has also been impressive
and on several social indicators we do better than all our south Asian neighbors. To me, one of
the most satisfying scenes in the Bangladesh countryside today is to see scores of school children
in clean uniforms with book bags on their backs either walking or riding bicycles to school.

Our ride to social and economic progress has not been smooth; it was quite a bumpy ride. At
times, we came close to the precipice but we did not fall over. As a nation, we have a paid quite a
heavy price for the progress that has been achieved. Two presidents were assassinated, national

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leaders were shot and killed inside the Dhaka Central Jail and today, political assassinations are
reported in the news with terrifying frequency. In the past forty five years, Bangladesh was under
military rule on 3 occasions and each rule lasted several years. The last time, the military took
control of the government, they were practically invited by politicians to take over the reins of
the country because the leading political parties could not agree on how should the caretaker
government or the election commission be composed. Today, the nation is divided based on the
political divide of the 2 main political parties. Professional Associations are also divided. These
associations no longer pursue the goals for which they were created, i.e., to benefit the
profession. Instead, they pursue narrow political interests often driven by corrupt motives. This is
true for lawyers, engineers, doctors as well as the other professions. Consequently, we have
university teachers who neither look after the interests of the university nor that of its students.
Today, there is not a single Bangladeshi university in the list of the world's top 1,000
universities. The leaders of student political parties are people who are in their forties and are not
students. They are often associated with underworld. A Bangladeshi today cannot get any
government service due to him/her for free without greasing the palms of officials who provide
the service. The same is true if one is aggrieved and seeks justice in the courts.

One does not have to be a genius to recognize that a country with 54,000 square miles that is
largely a delta on the forefront of the threat of global warming with a population of 150-160
million that is soon going to reach the 200 million mark cannot continue in this path if we wish
to prevent an implosion. We must find a way to be live in peace with each other governed by
laws rather than living on the edge of catastrophe that is marked by violence, widespread
corruption and lack of the rule of law. Our present path of progress only benefits a handful of
people who receive most of the bounties of development. Our income and wealth distribution is
skewed and we are rapidly heading towards a situation where 1% of the population shall end up
controlling 99% of the wealth of the country.

My generation is playing their last innings in the pitch called Bangladesh. The future is in the
hands of those Bangladeshis who were born after 1971. Our generation achieved independence
but we also need to admit that we did not succeed in putting Bangladesh on a strong footing
where the fruits of independence and progress could reach all its citizens equitably. This is
because we were unable to create strong national institutions that would ensure good governance.
This is a task we are leaving for our children to do. In a certain sense, this paper is an effort to
appraise the future leaders of Bangladesh of their task and the challenges they will most likely
face if they want a stable society for themselves and their children so that the legitimate
aspirations of all Bangladeshis are fulfilled.

At the outset, I would like to make it clear that this is not a normative paper in that I do not have
any prescription on what me must we do economically or agriculturally or how do we spread the
light of education. Instead, I shall focus on the instruments of the modern state, i.e., Democracy,
Elections, the Legislature, the Executive Branch, and the Judiciary. Whatever path the future
leaders of Bangladesh choose, they shall do so by bringing reforms and changes in these
instruments. Hence, in this paper I propose to describe the path we have traveled in the last 45
years insofar as the instruments of the state is concerned highlighting the errors that were made
in governance and landed us in the present predicament.

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We have never had a national discussion on what kind a nation state do we want Bangladesh to
be. The vote for Awami League in the first national elections of Pakistan in 1970 was for
provincial autonomy to end the discrimination that the Bengalis faced in Pakistan. The vote was
not for the independence of Bangladesh. We fought the liberation war because the Pakistan army
launched a campaign of genocide and mass rapes on the Bengalis. Once the liberation war began
as a consequence of these actions our aspiration to be free and independent became non-
negotiable. Yahya postponed the national assembly session on March 1, 1971 and the liberation
war began on March 26, 1971. This period was marked by a rapid changing political scenario.
Consequently, while we wanted an independent Bangladesh, we did not have any national
discourse on how would Bangladesh be different than Pakistan. At that time, all our aspirations
seemed to have been weaved in the phrase Sonar Bangla - Golden Bengal of Rabindranath
Tagore. During the liberation war I had the opportunity to talk about our dreams in independent
Bangladesh with the men who fought with me. During periods of lull, there was always some
kind of discussion on what would it be like to live in independent Bangladesh. Most of my
comrades were rural young men and their aspirations were modest. From the description of their
dreams in independent Bangladesh it was clear that they wanted human dignity, fairness and
opportunities. I think the Declaration of Independence made by the Mujibnagar Government on
April 10, 1971which stated: "we the elected representatives of Bangladesh, as honour bound by
the mandate given to us by the people of Bangladesh whose will is supreme duly constituted
ourselves into a Constituent Assembly and having held mutual consultations, and in order to
ensure for the people of Bangladesh equality, human dignity and social justice declare and
constitute Bangladesh to be sovereign and thereby confirm the declaration of independence
already made by Bangabondhu Sheikh Mujibur Rahman" captured the aspirations of my fellow
fighters. The three objectives mentioned in the declaration of independence are universal for all
times. They are as true today as they were in 1971. Hence, if we observe that the state practices
discrimination or if it favors certain groups on the basis of race, religion, gender, sexual
orientation or any other criterion, then we have to conclude that we have not been able to create a
state that treats all its citizens equally. By the same token, if the state dehumanizes its citizens on
some pretext or the other or if certain classes of society seem to enjoy more state privileges than
others then we have to conclude that human dignity and social justice are wanting in Bangladesh.
Overall, I think it would not be an unfair statement if one were to state that Bangladesh is yet to
deliver on the objectives of our independence to all our citizens. As a nation, we have made
errors and all of us are paying the price for these errors. These errors have manifested in various
forms of ailment in the instruments of the modern state resulting in poor governance. Let's
consider them in an orderly manner.

Democracy

Expressions of emancipation by the people of Bangladesh/East Bengal in Pakistan were based on

democratic principles. Bengalis demanded holding free and fair election under universal adult
franchise. In 1970, when Pakistan held its first national elections, the Awami League (AL) won
167 out of 169 seats allotted to East Pakistan. The AL was created in 1948 by the Bengali leaders
of the Muslim League when Liaquat Ali Khan and his cohorts stifled the voice of Bengalis
within the party. Between 1948 and 1966 (the year when Six Points were announced in Lahore),
the AL had four different presidents. Abdur Rashid Tarkabagish, the President of the AL in
1966, was not in favor of Six Points. He opposed Sheikh Mujibur Rahman's announcement of

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Six Points without party authorization. Political difference between the two was resolved in a
party council in which Sheikh Mujibur Rahman was elected president of the party. The AL did
not breakup because of the differences between Mujib and Tarkabagish. Sheikh Mujibur Rahman
succeeded in convincing his peers to accept the Six Points for emancipation of Bengalis because
party procedures allowed debate and contest of ideas. The party practiced pluralism. This is a far
cry from the last AL Council, where a resolution was adopted that the party chief's decision is
the party's decision without any discussion on any of the substantive issues facing the country or
the party. The Bangladesh Nationalist Party (BNP) too passed a similar resolution in two
successive councils. This suggests that the two leading political parties are not inclined to
practice democracy within the party and there is no room for debate within the party forums.
Any dissent with the party chief is sufficient reason for expulsion from the party. Thus, today by
design, members of major political parties can only obey the party chief's decision and they
cannot express their views even when the party chief makes an error. Therefore, hopes and
aspirations of the ordinary people of Bangladesh are never considered in party forums.

The Mujibnagar Government was the first government of Bangladesh. It assumed office in trying
times with no advance preparation for leading the liberation war and achieving independence.
During the liberation war, there was considerable divergence of views within AL and even
within the cabinet. These differences were so severe that Sheikh Fazlul Haque Moni even sent an
assassin to kill the Prime Minister, Tajuddin Ahmad. There was a strong challenge to Tajuddin's
leadership by Sheikh Mujibur Rahman's relatives namely, Moni and Abdur Rob Seraniabat.
Khandakar Mushtaque Ahmed, a cabinet member, sided with Moni and Seraniabat. There were
other senior party leaders such as Mizanur Rahman Chowdhury and Professor Yousuf Ali who
too sought Tajuddin Ahmad's removal. These anti-Tajuddin Ahmad elements attempted to table
no-confidence motions against the prime minister in both of the AL party councils held during
the liberation war. Tajuddin, as PM did not try to silence his opponents by resorting to non-
democratic measures. He debated his opponents in the first council in Siliguri and obtained a
strong mandate from his peers. Thus, we see that even in trying times where the tendency for
many would be to deviate from democratic norms, Tajuddin Ahmad depended on pluralism and
democratic practices to strengthen his own position as well as that of the provisional
government. These two examples show that our fight for independence was advanced and
brought to fruition through democratic practices. Pluralism served us well.

After liberation and Bangabondhu's return to Bangladesh, those who opposed Tajuddin Ahmad
during the liberation war, drove a wedge between the two leaders by poisoning Mujib's ears
using falsehoods. The poisoning and its accompanying falsehoods were so severe that Sheikh
Mujibur Rahman never wanted to be briefed by Tajuddin Ahmad on how did the provisional
government organize the liberation war and achieve the independence of Bangladesh. This rift
became so difficult that Tajuddin Ahmad had to resign from the government in 1974. Slowly,
AL moved away from democratic norms within the party and pluralism was not encouraged in
party meetings. The fourth amendment to the constitution passed by the parliament in January
1975 extinguished multi-party democracy in Bangladesh. At the same time this amendment also
took away the Supreme Court's jurisdiction over the protection and enforcement of fundamental
rights.

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The assassination of Bangabondhu and his family on August 15, 1975 was probably the biggest
setback to constitutional rule in Bangladesh. Rationally, one would expect that in such a time of
national crisis the national institutions would be sufficiently strong to follow the constitution and
a successor would assume office according to the law. But that did not happen for two reasons:
First, the political apparatus that took over the reins of the country after Bangabondhu's death
was led by Khandakar Mushtaque Ahmed, a senior leader of AL and a cabinet member in
Mujib's cabinet. Also, the politicians who were supporting Mushtaque were also from AL
including some cabinet members. Mushtaque's cabinet was composed entirely of people who
were from AL and some of them were even members of Mujib's cabinet. This indicates that there
was considerable dissatisfaction within the AL about Mujib's rule and these people did not have
any compunction about Mushtaque resorting to extra-constitutional means and assassination to
eliminate Sheikh Mujibur Rahman. This automatically raises the question - had the AL practiced
democracy within the party after the independence of Bangladesh would Mushtaque have
received as much support from AL members as he did? The second reason was that the 3 defense
service chiefs pledged support for the assassins and Mushtaque without any consideration to
their oath of office and constitutional obligations although these men were hand-picked by
Sheikh Mujibur Rahman.

The events of August 15, triggered other events that seemed like a series of implosions of pent
up frustration after the trauma of the war and famine. In order to get some semblance of
legitimacy for his rule, Mushtaque played the religion and Islam card that was successfully used
by the British and the Pakistanis to divide and rule. Mushtaque's rule did not even last 3 months
and he was overthrown by a coup on November 3 led by Khaled Musharaf. Before leaving
office, Mushtaque ordered the assassination of the four leaders of the Mujibnagar Government in
Dhaka Central Jail in order to eliminate any future political challenge for himself and his extra-
constitutional actions. A mutiny in Dhaka that was initiated by JSD ended Khaled Musharaf's
reign on November 7 that was accompanied by a frenzy of killings in Dhaka Cantonment.
Khaled Musharaf was killed by mutinous soldiers on November 7. Ziaur Rahman took control of
the army after the events November 7 and he quickly distanced himself from JSD. Politics in
Bangladesh had become a deadly sport.

Zia's reign was marked by a series of mutinies (more than twenty) and some were quite bloody
and deadly. One could argue that the mutinies helped Zia consolidate his position within the
army as he was the only person who could stand before the mutineers and convince them to give
up their rebellion. The situation was becoming unmanageable even for Zia and he started to take
action against mutineers. He hanged Col. Taher, a war time sector commander and a leader of
JSD who led the mutinous soldiers on November 7, 1975 that brought Zia to power. The
evidence against Taher was mostly concocted and his trial was held inside the jail in camera
without any observers. Eventually, Zia's regime hanged more than a thousand soldiers for mutiny
during his tenure in office. The executed soldiers were tried in martial law tribunals summarily
where each trial lasted less than 10 minutes. The defendants were not allowed to appeal against
the capital punishment. By 1975, assassinations had become a part of the political lexicon in
Bangladesh. Since the birth of Bangladesh the rule of law was lacking largely because AL youth
under Moni's leadership were waging a war of attrition on leftists political opponents using
targeted assassinations as their tool.

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After consolidating his position in the army, Zia assumed the presidency of the country in April
1977. To legitimize his rule, Zia sought a mandate through a referendum in May 1977 that was
largely rigged by intelligence and state agencies. The referendum results showed that Zia had
99% approval of the people which even Zia himself found hard to believe. Bangladesh could not
be ruled using the military power alone. Zia understood that at some point he would be
challenged politically by AL. Although the party had suffered a terrible setback after the
assassination of its principal leaders who led the independence movement and the liberation war,
it was still the biggest political party in Bangladesh whose tentacles reached every town and
village of the country. He decided to be prepared to meet that challenge under his terms rather
than allow his opponents to take the initiative. Using state and intelligence agencies he put
together a coalition of politicians and parties that included both the left as well as the ultra-right
and the BNP was born. Intelligence agencies also assisted AL to get organized using
inducements or threats as the need be. Many members of the AL who had joined with Mushtaque
switched sides and joined Zia.

In order to keep street agitation under control, Zia had to allow multi-party political activity and
eventually a national election. These actions were seen favorably by the media at that time who
gave Zia credit for restoring multi-party democracy. A close examination of BNP's constitution
however shows that within the party all decision making powers lay with the chairman
suggesting that Zia did not want pluralism within his party. The party chairman was supreme in
his authority and there was little scope for collective decision making. Zia was an authoritative
military leader who appeared to be benevolent and democratic but in reality he was a strong-
willed autocrat who did not attach much importance to democratic norms. Zia's assassination in
1981 by some military officers was the outcome of the stress between the freedom fighters and
repatriated officers in the army which cleared the path for H. M. Ershad's military rule.

Ershad's rule was marked by unprecedented corruption, debauchery and divisive politics of the
worst kind. His rule was similar to that of the military rulers of Pakistan where he used Islam for
political purposes and made a mockery of all national institutions. He was an autocratic dictator
whose style of governance was oligarchic characterized by cronyism and nepotism. In the end,
even the army abandoned him and he was overthrown after a popular uprising in 1990.

After Ershad's removal from office, elections were held under a non-partisan caretaker
government which was won by the BNP although it did not win an absolute majority. Khaleda
Zia was sworn in as PM in 1991. After the restoration of parliamentary democracy in 1991, there
was a period where activities of inside the parliament was marked by lively debates and it
appeared that parliamentary democratic practices were spreading its roots in Bangladesh. The
loss on an AL candidate who was expected to win in a Magura by-election in 1994 in a seat that
was held by the AL brought the issue of fair impartial elections under a political government to
the forefront. AL wanted a national election under non-partisan caretaker government and after
period of prolonged strikes and a virtual shut-down of the economy a constitutional amendment
(13th. Amendment) was adopted by the parliament in March 1996, AL won the election that
followed and was able to form a coalition government that served its full term of office. Thus,
between 1991 and 2009, the two major political parties alternated in forming governments when
elections were held under caretaker governments. In 2014, the caretaker government was done
away with as the Supreme Court ruled that caretaker government was unconstitutional since they

6
are not elected by the people. The Supreme Court however observed that caretaker government
system could be continued for two more election cycles but the AL scrapped the caretaker
government system even before full written judgment of the Supreme Court was made available.
As a result, the BNP did not participate in the elections of 2014 because they had the same fears
(the apprehension of rigging) that the AL had in 1996 about participating in elections under the
BNP government. This resulted in more than half the MPs returning to the parliament in 2014
without any electoral contest.

Although the popular uprising in 1990 re-established parliamentary democracy in Bangladesh,

our parliamentary democracy leaves much to be desired. The most prominent weaknesses that
are notable in our system stem from 2 major sources; (1) all political power is concentrated in the
hands of the party chief and (2) the absence of democratic norms within the parties themselves.
In both political parties intra-party disputes and differences of opinion can only be resolved
according to the wishes of the party chief. Often the party chief's position on such matters is
colored by the closeness of the individuals concerned to the party chief. Such a political culture
promotes sycophancy. This problem became quite acute in the second terms of both party chiefs
(2001-6 for Khaleda Zia and 2009-14 for Sheikh Hasina) as their sons entered politics as
aspirants to lead their respective party after their mothers retire. Sycophancy is so deeply
entrenched in two the major political parties that local party members of a constituency have no
say on who their party nominee shall be in an election even in a local body election - everything
depends on the party chief. This problem manifested itself before the nation during the tenure of
the caretaker government of 2007-9 when several politicians sought reform of the political
system with the help of the military. These reformers were people who were unable to present
and pursue their views on important issues within the party because their parties did not practice
pluralism. Unable to make any headway within the party, the reformers convinced the military to
implement the 'minus two' policy that would send the two party chiefs in exile and bar them from
Bangladesh politics.

Hence, today, democracy in Bangladesh starts and ends with having elections. The parties do not
practice democracy internally although our history shows that democratic norms and practice
have served us well in times of grave national crisis such as the Six Points Movement and the
Liberation War. Let us then focus on our elections because elections are the only visible
democratic activity in Bangladesh at the present time.

Elections

Two years after Bangabondhu's historic speech at the race course maidan, Bangladesh held its
first national election on March 7, 1973 under the new constitution. The AL government's
performance in the first year of independence left much to be desired and the general expectation
was that the AL will not able to sweep the elections like it did in 1970. Nevertheless, there was
no doubt that the party would win an overwhelming majority because of Mujib's stature and its
role in the liberation war. The response from pre-election campaigning showed that NAP
(Bhashani) and JSD were drawing large crowds. Most people felt that there would be a
meaningful opposition in the parliament. Vigorous debates in the parliament would in turn
reduce the need for street agitation by the opposition as well as nurture our nascent democracy.
Mujib, however, wanted a landslide victory and the AL bigwigs decided to ensure it at any cost,

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fair or foul. When the election results were announced, AL was declared winner in 291 seats in
the 300 seat parliament. In several constituencies the opposition candidate only lost in the last
minute after leading all night. The elections results were not credible. Similarly, the referendum,
presidential and national elections held during the Zia and Ershad years were all rigged and some
of the results were quite comical. On the other hand, national elections held under caretaker
governments between 1991 to 2009 saw the previous political government unable to return to
power. In the opinion of national and international observers elections conducted under the
caretaker governments were fair and acceptable barring few isolated irregularities. Political
analysts are still arguing why the results of the national election of 2014 cannot be accepted since
the majority of the MPs came to the parliament without an electoral vote.

Thus, our experience shows that elections with a political government in office tend to be rigged
and manipulated by the government in power. On the other hand, elections conducted by
caretaker governments tend to produce results that are acceptable. But the Supreme Court has
ruled that the caretaker government is unconstitutional and I agree with the court. Bangladesh
implemented the system of caretaker government because of the weaknesses of our Election
Commission (EC). Instead of the caretaker government, as a permanent solution to our election
crisis, we should reformed and strengthened the EC as an independent constitutional body with
adequate resources and power backed by strong laws. Most importantly, those who serve in the
EC as commissioners have to be people who shall not waver from upholding their oath of office
in actions and in spirit. At the present time, it seems that the EC members are unable to uphold
their oath of office. This is an important issue that requires dispassionate consideration.

It goes without saying that Election Commissioners need to be people of highest integrity and
strong moral character so that they do not succumb to either inducements or threats. At the same
time, the EC needs resources in terms of man, material and money to perform their task
successfully. Effective laws are necessary so that the EC has adequate powers to take action
against anyone who violates the election laws/rules. In reality, our ECs have not been able to live
up to this standard. A notable exception was the EC headed by Dr. Shamsul Huda. They
corrected the voters' list and detected almost ten million fake voters. They conducted a successful
national and a local body election. On the recommendation of the Huda Commission changes
were brought in the election laws enhancing the powers of the EC so that it can take action
against errant officials as well others who don't play by the rules including disqualifying a
candidate. On the other hand, the present EC has proposed to the government to take back some
of its powers. Many viewed this as an indication of subservience of the EC to the executive
branch. As a result, the EC has lost public confidence.

Why does the EC not have the confidence of the electorate? The answer is complex and there
may be many reasons for its ineffectiveness. Let's consider some of those issues. First, if we
examine the credentials of individuals that have become election commissioners in Bangladesh,
we see that they have either been former judges or bureaucrats. If former bureaucrats and
judges were people above reproach then Bangladesh would not have ranked so high in the global
corruption index. Therefore, it is probably time to look beyond this traditional pool for future
election commissioners. The inclusion of ordinary citizens would be desirable if not for any
other reason but to remind the other commissioners about their oath of office and the expectation
of ordinary citizens.

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Logic dictates that if any candidate who exceeds the spending limits set by election laws/rules,
he/she should be disqualified. And if such a person wins, the result of that constituency should be
declared invalid. This standard is never applied in Bangladesh. Using this benchmark, every
election victory in Bangladesh could be termed as illegal because spending limits were exceeded.
Yet, I know of no case where an election result was nullified by the EC because the victor
exceeded spending limits. Electoral spending limits are essential so that the wealthy do not have
an unfair advantage and can buy their way into office. The importance of spending limits have
special significance in former colonies like Bangladesh where the wealth distribution is skewed
and the wealthy have an advantage. Expensive elections is the most effective barrier of entry in
Bangladeshi politics. Today in Bangladesh, a competent and honest candidate with the good
ideas cannot even participate in an election because he is unable to raise the money necessary to
win elections.

One can even argue that the root of all corruption in Bangladesh is expensive elections. Being
elected to office guarantees not only protection from legal proceedings but it also creates new
money making opportunities that are not always legal or entrepreneurial. Consequently, many
underworld dons and tax evading businesspeople buy nomination in national and local body
elections in Bangladesh. Grapevine reports suggest that the average purchase price for a
nomination in the 2014 national election exceeded five crore takas. The practice of selling
nominations at exorbitant prices exists in all major political parties. In addition to the money
used to buy the nomination, crores are spent in buying votes for cash or kind and for bribing
local officials to look the other way when the candidate violates electoral laws or commits other
irregularities. Once elected, goodies flow to the MP like a overflowing river. Examples of
goodies include license for regulated businesses such as banks, insurance companies, finance
companies, TV stations, FM radio stations, international gateways and other government
contracts. As a result, the MP who buys his/her nomination sees his/her electoral expense as a
business investment that shall yield very high returns for next five years. The elected MP has
little interest in matters of national policy or the passage of laws. (S)/he is completely focused on
becoming the effective ruler of his/her area establishing control by using mastan bahinis, if need
be. It is not unusual for a MP to demand exorbitant amounts from his constituents for any help
(s)he renders to them in resolving problems with government agencies. People who are unable to
pay end up selling their homesteads or agricultural lands to the MP at throw away prices. This
explains why an individual after becoming a MP also becomes one of the biggest landowners in
his constituency. Elections of this type cannot strengthen Bangladesh's democracy.

It is therefore important to consider what can we do to make elections fair so that money alone
shall not decide the outcome of elections in the future. It could be that the situation has reached a
point from where no return is possible to salvage ourselves from the present situation. If that is
indeed the case, then future leaders of Bangladesh shall have to consider whether elections need
to be publicly funded from the national exchequer. This is not a Utopian or radical idea but a
pragmatic one. Senator Bernie Sanders who is seeking the Democratic nomination for the US
Presidential election, has identified campaign finance reform and publicly funded elections as
one of the major issues in his campaign so that wealthy individuals and big corporations do not
influence the outcome unduly. I believe that the same is true for Bangladesh. One can even argue
that publicly funded elections shall reduce overall the cost of elections. I shall go a step further

9
and state that the use of private money in national and local elections need to be banned. That
way politicians who run for office will have no reason to ask for money or raise money in a non-
transparent manner that promotes corrupt practices. With unlimited private funds cut off from
elections, politicians shall not have the resources to maintain their mastan bahinis who are
responsible for most of the election related violence and are generally involved in illegal
activities of the underworld. But this shall not happen simply because it is rational and logical. It
can only happen when people of Bangladesh realize that the present system of elections do not
serve the interests of ordinary citizens of Bangladesh and only benefits a tiny fraction of the
population at the expense of the majority. The future leaders of Bangladesh have to create
awareness and change politics from a money making enterprise to genuine public service and
public welfare.

The Legislature

Bangladesh's first legislature was the Constituent Assembly of 1972, composed of MNAs and
MPAs elected in the 1970 elections. The draft constitution was placed before the constituent
assembly on October 11, 1972 and the constitution was adopted on November 4, 1972 after
debating the draft for less than a month. The debate was not sufficiently exhaustive insofar as the
relationship between the state and its citizens are concerned. Notably missing was any public
discussion on the constitution. Although the constitution embraced the noblest of ideas, the
reality on the ground was that how would these noble ideas be upheld in everyday life remained
undefined because of the short time spent in debating the constitution. The second amendment
curbed fundamental rights of citizens in periods of emergency and the fourth amendment ended
multi-party democracy and removed the supreme court's jurisdiction over the protection of
individual rights. Thus, many of the checks and balances between the legislature, executive and
judiciary that are essential for an affective functioning of a democracy were lost. The fifth
amendment amended the fourth amendment and added a new provision that gave indemnity to
the assassins of 1975 for their extra-constitutional actions to usurp the constitutional government
of the day. Subsequent amendments either gave legal cover to various unconstitutional actions of
Ershad's martial law regime although the Supreme Court ruled in 2012 that martial law is
unconstitutional and anyone who tries to impose it by ousting a constitutional government is
liable to be charged with high treason. Yet, the court did not order that Ershad be charged and
tried for the usurpation of a constitutional government and for imposing martial law in the
country. Many felt that the reason why he was not charged was because he was a special envoy
and ally of the PM at that time. Ershad passed the eighth amendment in 1988 and proclaimed
Islam as the state religion when this provision was clearly at variance with one of the pillars of
the constitution, secularism. Two points are notable about the constitutional amendments. First,
the amendments did not come about because of public demands. The public were not even
consulted. Second, the amendments were done at the behest of the ruler to strengthen his/her rule
and in many cases these amendments curbed the fundamental rights of the citizens of
Bangladesh.

The Bangladesh parliament never became the Westminster style parliament after which it was
modeled. Occasions of vigorous substantive debates are rarely seen in our parliament. One can
even argue that our constitution dictates that the parliament to be like the way it is because
Article 70 prohibits floor crossing. Abstention from voting along party lines is prohibited even

10
when the MP feels that the government is making an error or his conscience cannot support a bill
because the majority of voters in his/her constituency are against the government's position or
the provisions of the bill is detrimental to his constituency. The original constitution of 1972
allowed for abstentions but subsequent amendments have made it unconstitutional. Some
constitutional scholars have argued that Article 39(1) which guarantees the freedom of thought
and conscience of every citizen prevents a MP from acting according to his conscience in the
parliament. This prevents the parliament from becoming the national repository of open debate
where different views can be examined. Experts also argue that this article encourages
sycophancy because a MP has no choice but to follow his party dictates. The best a MP can do in
the parliament is to participate in the question answer period and make periodic appeals for
development projects in his constituency area.

MPs are not involved in the drafting of legislation and once the treasury bench places a bill its
passage is guaranteed. This problem is aggravated further because the parliamentary parties of
the major political parties are practically non-functional and seldom meet making it virtually
impossible for a MP even to offer a mild criticism of any bill placed by his party. Almost all bills
are placed before the parliament by the minister concerned after being vetted by the law ministry.
Typically, the drafting is done by the bureaucracy without any input from the public. However,
the finance ministry holds annual consultations with the business community before placing the
finance bill in the parliament although they hold no consultations with taxpayers. For the past
decade or so I have reviewed the annual finance bills and I observe that while many of the
business community's demands on customs duties are accepted by the government, however, the
changes in the income tax and VAT laws are made without any consultation. Consequently, with
the passage of each Finance Act, the discretionary powers of tax officials have increased. Some
of the changes in the tax laws have been quite draconian that has legitimized deduction of taxes
at source without a recourse for appeal. 'Taxation without representation' was the rationale used
by the founding fathers of America for breaking away from Britain, the mother country.
Bangladeshi laws and practices offer little opportunity for citizens of the country to have any
public representation in the nation's tax laws and policy.

The MP is everything to his constituents but a parliamentarian. With no scope for substantive
debates, as mentioned above, the MP spends all his/her time and effort in establishing his/her
rule in the constituency with little interest in parliamentary matters. This explains why the MPs
were so vehemently opposed to allow elected Upazilla Parishads to function even though the
Upazilla elections were held before the national elections in 2009. It took more than a year after
the elected government assumed office for the Upazilla Parishads to become operational. It only
happened after a change was made in the Upazilla Parishads law that made the local MP an
advisor in the Upazilla Parishads. It is notable that no elected government ever took any
initiative to frame local government laws and make them operational although Articles 59 and 60
of the constitution categorically stipulate the provision of local governments. It was the caretaker
government of 2007-9 who took the initiative to hold local government elections. MPs are
unwilling to dilute their authority to other local leaders even if they are from the same party as
many MPs and Upazilla Parishads members were. MPs are primarily concerned with the
protection of their own power, perks and privileges even if that means placing themselves in
separate category of taxpayers. As an example, consider the case of allowing duty free import of
cars by MPs when the rest of the country have to pay duties. This corrupt practice was initiated

11
by the Ershad government to bribe MPs and five successive elected governments from both of
the major political parties have not repealed this corrupt practice. In a democratic country, how
can a people's representative enjoy preferential tax treatment that is not available to all its
citizens?

Given this environment, many MPs are tardy if not abhorrent to attending parliamentary
sessions. There are instances when the scheduled sessions of the parliament could not start in
time because of a lack of quorum. In the parliament, a MP seldom speaks about problems facing
the nation. MP speeches tend to be either to shower praise on his/her party that borders on the
comical or they are scathing criticisms of the opposition that are not credible.

After the restoration of parliamentary democracy in 1991, there was a brief period when the both
the treasury bench and the opposition attended parliament sessions and the proceedings were
interesting compared to what it is today. But all that changed when the opposition resigned from
the parliament to raise the demand for elections under the caretaker government. After the
elections, when the new government took office and the previous government party was in the
opposition, the opposition stopped attending parliamentary sessions. However, the opposition
MPs would attend one session before the expiration of the time limit that would vacate their seat.
They continued to retain their seat and receive their pay and benefits while remaining absent
from the parliament violating their oath of office.

The Executive Branch

The discussion above shows that the Bangladesh parliament has not been able to play a role that
could make democracy meaningful and effective. At the same time, the manner in which
elections are conducted, the influence of money is enormous. All MPs are beholden to their party
chief and there are few opportunities for a MP to voice the views of his/her constituents in the
parliament. All power rests with the PM who heads the executive branch of the government.
Let's turn our attention to the executive branch.

The British colonial administration and legal system was structured to exploit the natural and
human resources of India to make Britain wealthy. To accomplish their objectives the colonial
masters administered their colonies in a manner so that the system ensured public order at the
cost of individual rights and by restricting opportunities for Indians. Arbitrariness of officials and
extreme state violence against natives was used whenever natives attempted to organize
themselves to improve their lot. No consideration was ever given to the plight of the natives as
long as profits from colonial rule were remitted to Britain. This led to a situation where the
Indian farmer was forced to live at the subsistence level for his entire lifetime. An exploitative
land revenue administration through a system of zamindars and a bureaucracy that saw
themselves as masters of India kept the colonial machinery running. The system was largely
manned by Indians and only a small of number of British people actually lived and worked in
India. In return, the collaborating Indians were rewarded with money, titles and more money
making opportunities at the expense of ordinary Indians. Even after the first Indian provincial
elections under the India Act of 1935, the elected Indian Premier of a province was not able to
protect the interests of his electorate if it clashed with the colonial interests. This was the case
that caused the Great Bengal Famine of 1943 where 3 million died. The Bengal Premier, A. K.

12
Fazlul Haq, fought tooth and nail with the Governor and the Viceroy to prevent the Denial and
Scorched Earth Policies that removed country boats and excess food stocks form the Bengal
countryside causing the famine. Haq Shaheb was forced to resign because the Muslim League
and the Governor of Bengal conspired to bring down his ministry so that Denial and Scorched
Earth policies could continue.

After the partition of India, the Pakistani regime had no interest in dismantling the colonial
administrative and legal systems although most Pakistanis expected the colonial machinery to be
dismantled. Pakistan used the colonial setup to exploit the Bengalis of East Bengal during the
twenty four years the province was a part of Pakistan. After the 9-month liberation war and the
independence of the country, Bangladeshis expected the colonial mindset to end and a true
republic to take form. This was articulated by the Mujibnagar Government in its declaration of
independence. Unfortunately, that is yet to happen in Bangladesh. No government has yet
deemed it fit to dismantle the colonial system. As a result, the state has unlimited powers to deal
with its citizens arbitrarily and inflict tremendous violence including incarceration and death on
those the government considers as enemies/opponents.

Since the birth of Bangladesh, all heads of government were strongmen/women, irrespective of
whether it was a presidential form or a Westminster style parliamentary form of government.
Their leadership style was invariably of the authoritarian type. Bangabondhu Sheikh Mujibur
Rahman had no peers in his party. He was head and shoulders above the others and his wishes
became party dictates. Members of the party accepted this situation willingly. Even when the
fourth amendment to the constitution was passed, only a handful MPs took a position against the
amendment. Those who joined the BNP at its birth were either first time politicians or
discredited politicians because of their anti-Bangladesh role during the liberation war. They rode
on Zia's coattails to win their parliamentary seat. Besides, the BNP constitution vested all powers
with the party chairman. The same is true for the Ershad regime, his power was absolute and
could not be questioned in any forum. After the restoration of parliamentary democracy in 1991,
the leaders of both major political parties have enjoyed similar levels of absolute powers like
their predecessors. This history and our political traditions make pluralism difficult in our
political practices. As a result, the executive branch reigns supreme in Bangladesh. So much so,
that even constitutional bodies such as the EC or other commissions who have a constitutional
mandate to act independently subordinate themselves to the executive branch even though such
subordination is a violation of their oath of office.

An authoritarian head of government coupled with an all powerful executive branch and weak
instruments of modern state produced the predictable result. In course of time, the all powerful
head of government slowly gets surrounded by time servers. Former peers and colleagues who
could have been useful to the leader in keeping his/her feet on the ground is gradually pushed
aside as it happened between Sheikh Mujibur Rahman and Tajuddin Ahmad. Eventually, the
time servers and sycophants become the leader's gatekeepers. These gatekeepers start using the
leader's office for their own personal gain by resorting to corruption. This explains why the
finance minister of Bangladesh stated in the parliament that he is unable to act against those who
manipulated the stock market and conned hundreds of thousands of unsuspecting small investors
of their life's savings because such individuals are too powerful. Niko, GATCO, Hallmark,
Destiny, Sonali Bank, Basic Bank, Khamba, etc. are all examples of the impunity enjoyed by

13
these sycophantic gatekeepers. Because of their ability to dish out favors in the form of
government contracts at inflated prices, gatekeepers attract flocks of admirers and followers.
Thus, it costs double (or even more) to construct one kilometer of paved road in Bangladesh than
what it does in Western Europe. This is true for almost all government projects. Reports of
massive corruption are reported in the Bangladesh media with predictable frequency. What is
notable is that the scale of corruption with each successive political government exceeds that of
its predecessor. The consequence of all this is of course fewer roads, hospitals, schools, and other
infrastructure projects for ordinary citizens of Bangladesh thus depriving them from adequate
opportunities to improve their lot.

The bureaucracy which is the most important element of the executive branch has adapted well
to the Bangladeshi political regime of winner takes all. Bureaucrats oblige their political masters
willingly even if doing so violates their oath of office. This indifference to the oath of office
sustains because bureaucrats are allowed to prosper through corruption. Political masters have no
problem in accepting this practice as long the official concerned shares the spoils of corruption
with party loyalists and actively supports the political agenda of the ruling political party. As a
result the members of the bureaucracy don't see their advancement in service on the basis of
professionalism, competence, public service or for upholding the constitution or the law. Given
that politics is dominated by the two major political parties and both parties have won elections
and formed governments on more than one occasion, the bureaucracy is split along party lines in
its loyalty. The politicization of the bureaucracy is commonly termed as Proshashonic
Doliokorn. Therefore, it has now become standard practice of sending hundreds of government
officials, who were loyal to the other political party, to oblivion as an officer on special duty
(OSD) as soon as a new political party takes office. Even if a government official is not made
OSD, it is not uncommon for people who have the reputation of having been useful to the
previous government are deprived of professional advancement or any meaningful responsibility.
Thus, at any given time, hundreds of government officials remain in government service with
full pay and benefits while they perform no work year after year. This happens in an
environment where the quality and delivery of government/public service is poor. Yet, every
government in Bangladesh has explained away this problem as a paucity of personnel problem
while hundreds of government officials vegetate as OSDs and have taken no effective steps to
alleviate the situation.

Recruitment for government jobs is a major of source of earnings for ruling party politicians.
Candidates have to pay politicians as well as officials and it doesn't matter if the position is lowly
like that of a peon. Stories of money exchanging hands in the recruitment of various cadres of the
civil service are widely known. Even members of the Public Service Commission are not above
this practice and stories of their malpractice and corruption have appeared in the media. Often
the recruit's family have to dispose off family assets for their ward to become a government
officer. Thus, once in government, the new employee does not see himself as a servant of the
people but as a master. His/her first priority is to recover the investment the family made for him
in getting the government job. Given that life in government service starts with corruption, a
government officer continues to profit from his/her office throughout his/her career. At the same
time, the new government employee remains loyal to his/her political masters who recruited
him/her even if that means sabotaging and undermining the government of the other political
party. A car full of money destined for railways minster made headlines when the minister's

14
driver got nervous and drove the money carrying vehicle into the border guards compound in
Peelkhana, Dhaka to expose the corruption in railway recruitment that was underway at that
time. The minister lost his railways portfolio after the incident was exposed but remained in the
cabinet as a minister without portfolio.

This political culture requires a lot of muscle power to crush dissent and silence criticisms of the
government of the day. The student political party linked with the major political party backed
by law enforcement agencies provides the necessary muscle power. Government backed student
political parties take control of all public universities and colleges without holding student union
elections as required by law. For the last two decades, the authorities have been reluctant to
allow student union elections and no such elections were held. General students are regularly
forced to support the government backed student political party or they are marginalized from
getting any privilege due to them. Ruling party student leaders not only determine which student
gets to live in residential halls, or get other benefits from the university; they also control
procurement process of the university. Student leaders of the government backed student
political party even have a say on which new faculty member gets hired by the institution.
Administration officials and faculty members are only too obliging to the demands of the student
political party that is backed by the government of the day. Machete wielding ruling party
student activists frequently attack their rivals and opponents in the campus as a demonstration of
their political prowess. Because of such violence, public universities and colleges are often
closed down and campuses emptied to bring the situation under control. Students and even
faculty members become victims of such violence. Sometimes people are maimed and even
killed by them and victims include both students and teachers but the perpetrators have never
faced the consequence of their actions. In one public university, a ruling party student leader
celebrated his hundredth rape with a feast. He was reluctantly suspended on the face strong
student protests although he was allowed sit for his final examination and after graduation the
individual found employment in the government as a judicial service officer. Public university
vice chancellors are the principal patron of government backed student political parties often
subordinating their judgment and opinions to the demands of student political parties. The
leaders of student political parties are almost never good students, and seldom have qualities that
would endear them to the general students. Intimidation and inflicting violence on others are
their principal forte. In effect, the government backed student political parties take control of
underworld activities in and around the campus. The problem is not limited educational
institutions only. Government backed student political parties have now penetrated in city
neighborhoods as well as villages and like their peers in educational institutions they are
involved in the booming business of the underworld.

With the cooperation of party oriented bureaucrats and the muscle power of student political
parties and the law enforcement agencies, the political party in power quickly establishes
complete control over the country. So much so, that even legitimate demands by labor for higher
wages or better working conditions are met with police violence including shootings and death.
Custodial deaths and killings by so called 'heart attack during interrogation' or 'cross fire' are
reported in the media with frightening regularity. Given that businesspeople constitute more than
half of the ruling party MPs, the government invariably sides with corporate interests against
demonstrating labor, villagers or any other group that dare protest for their legitimate rights.
According to the media, the underworld drug trade in Bangladesh today is controlled by a

15
syndicate of politicians, policemen and ruling party activists. The recent shooting and death of
four people in Banskhali in Chittagong who protested against the setting up of a coal fired
private power plant in their area is an illustration of what happens when local public interest
clashes with big business. In Ashulia and Savar EPZ, there have been several incidents when
police used deadly force against labor using 4-wheel vehicles that the BGEMA gave to the newly
set up industrial police.

To consolidate their power, this unholy alliance may take any action on anyone and that includes
assassinations as well. In the post 1991 political scenario, many journalists have been killed and
investigations have not shed any light on the perpetrators. Consider the case when the home
minister of a previous government under the instructions from the PM's son facilitated the
grenade attack on the leader of the opposition and a former PM when the police played a
facilitating role. The perpetrators then framed an ordinary poor villager for the attempted
assassination. In another incident a cabinet minister and senior intelligence officers tried to
illegally discharge a huge consignment of weapons destined for insurgent groups in India.
Recently, RAB officials killed 7 people in Narayanganj in a private contract killing. The RAB
battalion commander who organized these heinous murders is the son-in-law of a sitting cabinet
minister. The ward commissioner who contracted the RAB personnel for these murders is a
follower of a ruling party MP on whose behalf the PM spoke in the parliament even before any
investigation of the matter. Since the restoration of parliamentary democracy, there have been
many cases of public display of impunity by ruling party MPs and even their wards. Recently, a
MP wantonly shot and injured a child in a drunken state for no rhyme or reason. In another case,
the drunk son of a female MP shot and killed a rickshaw puller when his vehicle was stuck in
traffic in Dhaka. Examples of such behavior from ruling party politicians are reported in the
national media regularly.

As a result of this environment, ordinary people do not receive the service that they should from
the government. There is widespread discrimination in the delivery of government services and
often loyalty to the ruling political party determines whether or not one receives government
service. In some cases even being a party loyalist may not be enough to benefit from government
services. One has to know the right person in the party hierarchy to receive a service. Even
though the Upazilla Parishad is a duly elected local government body, it cannot function
autonomously. The constitution gives local government bodies taxation powers but the Upazilla
Parishad has no independent sources of revenues other than the lease payments it receives from
leasing out markets. Consequently, Upazilla Parishad is no position to provide much of the
services that citizens need although physically the Upazilla Parishad is the closest government
in proximity to the citizens of Bangladesh. All important matters of local significance such as the
administration of agricultural programs or improvement of schools or management of public
hospitals, etc. are determined by relevant ministries and departments of the national government
in Dhaka resulting in poor service delivery. The field officers of different ministries and
departments of the national government have no reporting obligations to the Upazilla Parishad.
As a result service initiatives often do not reach targeted groups and the deprived have no
effective means to get service from the government offices in Dhaka.

In view of the above it would be worthwhile to consider if it is possible for the national
government of Bangladesh to deliver government services to all Bangladeshis satisfactorily. Like

16
everything else, the number of people a government can serve effectively depends on the size of
the population and the nature of services. Services such as municipal services, education, health,
public safety and security, regional communication and several others are best served by local
governments. At the present time the Upazilla Parishad is the only local government and that too
it is hamstrung by a multitude of problems. As far as I know, there is no instance in the world
where one government has been able to provide satisfactory government services to 160 million
people that is soon going to reach the 200 million mark in a few years. That is why countries
have several tiers of local government with each tier providing a limited number of government
services. If Bangladesh were to upgrade its current divisions into provinces/regions with a
provincial/regional government, legislature, high court, etc., each province/region would have an
average population of 20 million which shall still exceed the population of many countries of the
world. Many of the functions of ministries today could then be transferred to provincial/regional
government thereby improving the quality and delivery service. Although the two major political
parties have no interest in such matters, it could still be of benefit to them as well. If a major
political party is unable to form a national government, it is unlikely that it will not be able to
form any of provincial/regional governments. And as long as a political party has one or more
provinces/regions where it is in government, a political party shall not have any incentives to
undertake insane political programs such as attacking public buses with Molotov cocktails. We
see such practices in India and I believe that Bangladesh could also benefit from a system of
provincial/regional governments.

The Judiciary

Articles 95, 96 and 97 of the original constitution of 1972 envisaged an independent judiciary. It
was expected that in the years to come the safeguards to the independence of the judiciary would
be strengthened and consolidated. Unfortunately, that did not happen. Subsequent constitutional
amendments diluted the independence of the judiciary, e.g., second amendment. While the
constitution clearly stated that judges shall be independent in the exercise of their judicial
function, the lower courts and the magistracy remained under the establishment ministry. The
first law commission headed by Justice Kamaluddin Ahmed was formed in 1976, by an act of the
parliament, made recommendations so that the judiciary could function independently. The
Ahmed Commission suggested a 3-point a step-by-step implementation process so that at the end
of a certain period the judiciary would become fully independent. However the government did
not implement the recommendations of the Ahmed Commission. Since 1991, both major
political parties had separation of the judiciary and repeal of black laws (that infringe on a
citizen's fundamental rights) in their election manifestos but never took any effective steps to
make the judiciary independent when they were in government.

Separation of the judiciary did not require any constitutional amendment or passage of any new
laws. In India and Pakistan, the separation was done through amendments of the Criminal
Procedure Code (CPC). In Bangladesh, the constitution empowered the President of the republic
to formulate rules for the judiciary. But the president who is elected by the parliament, has no
independent powers to act without the advice of the PM. This effectively limits the President's
ability to formulate Rules on the Judiciary unless the PM desires it. The caretaker government of
2001 drafted the necessary rules for separating the judiciary but did not act upon it because the
BNP after having won the election assured the caretaker government that they would implement

17
it. But they did not keep their promise. In 1999, the Appellate Division of the Supreme Court of
Bangladesh ruled in the Masder Hossain Case where the court instructed the government to
frame rules for the separation of the judiciary. Three types of rules were necessary; (1) Rules for
posting, promotion, leave, discipline, pay, allowances, pension and other terms of service for the
judiciary, (2) to establish separate judicial pay commission, and (3) to make laws that would
ensure the security of tenure of judges. The government of the day did not take any effective
steps to make the judiciary independent. The law minister, a senior lawyer of the Supreme Court
stated to the press that it would take 6-7 years to implement the separation of the judiciary. In
February 2006, the Appellate Division rejected the government's petition for time extension after
allowing 26 adjournments in a period of seven years. Finally, in February 2006, the caretaker
government amended certain sections of the CPC as well as formulated the necessary rules to
grant independence to the Judiciary.

The discussion above shows that elected governments and thereby politicians have no interest in
having an independent judiciary in Bangladesh. We observe this disdain, even after the highest
court of the land had directed to the government to do so. At the present time, the country is
going through a judicial crisis after the Chief Justice set aside the judgments of 161 cases where
the presiding judge wrote the judgments while on retirement. The cases shall be re-heard by the
Chief Justice. It needs to be noted that a former chief justice wrote the judgment on the
unconstitutionality of the caretaker government after being in retirement for almost a year. Does
this imply that the issue of the caretaker government shall be reheard as well? Logic would
suggest that it may be. If that happens, then we may have a crisis about the constitutionality of
the incumbent government.

The manner in which the separation of the judiciary has come about in Bangladesh does not
inspire confidence that the Bangladesh judiciary shall ever become independent in a manner that
is desired by the citizens of the country. In addition to rules, true independence of the judiciary
requires a conscious electorate that understands the pitfalls of a subordinated judiciary. An
independent judiciary needs to be supported by strong political will that shall encourage and
allow the monitoring of the judicial system by civil society bodies contributing to the overall
political environment. Given the present state of affairs, true independence of the judiciary may
still take several more years.

The present structure of the judiciary cannot be effective in delivering justice to the population of
Bangladesh if not for any other reason but simply because the number of cases that are pending
before the judicial system far exceeds the number that the courts in Bangladesh can handle.
Some studies have opined that even if the number of courts and benches were to be doubled even
then the backlog of cases cannot be cleared within a reasonable time. Court procedures
contribute to this delay significantly. Nowhere are the vestiges of colonialism more visible in
Bangladesh than the lower and magistracy courts. Invariably, the physical facilities are
inadequate for the number of people who have to go the courts for justice or have to work in the
courts. Many of the cases filed before the courts are trivial and should be dismissed after a
review of the plaint or the charge but in reality that does not happen. The colonial era laws and
procedures make arrest and detention relatively easy for the state. We recently witnessed this
play out before the nation in two cases; one of a newspaper editor and the other of a reporter in
Faridpur. Bail is not only a tradable commodity for the lawyers but also for court officials and

18
costs can be quite substantial for the average person. Many people are unable to pay and as a
result languish in jail for long periods.

Several surveys have shown that the people of Bangladesh rank the judiciary at the same level as
police when it comes to corrupt practices. In criminal cases, the most compelling evidence
against a defendant in Bangladesh is the confession made by the defendant. Confessions are
obtained illegally and generally a person is forced to confess after being subjected to inhuman
torture by investigators. Although such confessions are not valid in a proper court and should be
thrown out in a trial but in many cases they are not even when there is no corroboration. This is
especially true for poor defendants. Public defense lawyers are ineffective in defending the poor
because their continuation of service as defense lawyers eventually depend on the state. It would
not be unfair to state that the Bangladeshi courts have not been able to ensure that all citizens of
the republic are treated with equality or human dignity or can expect courts to uphold social
justice as was stated in the declaration of independence by the Mujibnagar Government.

Conclusion

Given the state of instruments of the modern state in Bangladesh, it is no surprise that our society
is unstable. Periodically, we go through cycles of public violence. Invariably, our rulers see such
problems through the prism of law and order. If you happen to be in government, it is only
natural that you shall try to solve your problems with the tools you have. Hence, whenever such
problems occur, the government unleashes the law enforcement agencies for bringing the
situation under control. Such an approach only diffuses the tension temporarily but it cannot
resolve the problem that caused the unrest. As mentioned in the introduction, in spite of these
difficulties, Bangladesh has grown economically as well as socially. But in the process, we have
all collectively paid a heavy price. We are divided as a people and we have no tolerance for the
views of others. In order to subdue our opponents, we are ready to inflict violence to bludgeon
them into submission. The government does so all the time. Real solutions require real solutions
to the underlying social and economic inequities that caused the unrest in the first place.
Otherwise, the problem shall manifest itself in many forms at different times. The worst example
of this phenomenon was the crackdown of the Pakistan Army on the night of March 25/26, 1971.
The Pakistan government did not try to address the underlying causes of the Bengalis' unrest.
The crackdown did not work, and eventually, the Bengalis drove the Pakistanis out of
Bangladesh.

The recent killings of bloggers and members of minority communities by machete wielding
fundamentalists have shaken the core of our social psyche. In the case of Avijit Roy and his wife
Bonna who were struck by fundamentalist's machetes in a crowded public space in the presence
of police deserve some discussion. The police stood by and did not help the victims much to the
shock of the people of Bangladesh. But this is not first time when the police stood by in silence.
We have seen images of machete wielding ruling party students cadres in the media prepared to
strike their opponents in university campuses and in city intersections. The death of the tailor,
Biswajit, in the old part of Dhaka is still fresh in our minds. So the real question before us is do
we condemn all machete wielding violence or are we only upset by the machete deaths at the
hands of fundamentalists? Unless we condemn the use of machetes by all and demand action
against all machete wielding goons, I don't think we shall be able to control the fundamentalists.

19
As mentioned above, we are a nation of 160 million people who live in 54,000 square miles. Our
demography is such that big crowds are the rule in Bangladesh and not the exception. Whenever,
there are large crowds, there is always the potential for disruption. In order to keep crowds under
control, there must be well articulated rational laws that treats everyone equally and fairly.
Enforcement of laws must be such that people don't feel that the authorities are being
discriminatory in their approach. A citizen shall voluntarily obey laws when (s)he sees that the
laws actually protect him/her; laws exist for the benefit of all. A society is at peace when it is
governed by good laws. Bangladesh shall achieve its full potential of development when we live
in peace each other. Social peace shall promote transparency and reduce corruption. Today,
Bangladesh is in a path where one section of society is in a collision course with the other. We
need to change paths although I doubt that it shall happen in my lifetime. In this paper, I have
tried to analyze the state of our country in terms of how have we governed ourselves in the last
forty five years in order to understand went wrong so that we may find the right path through
introspection.

We cannot be a great nation if we are governed by colonial laws. Such laws only benefit the ruler
at the cost of masses. Many shall argue that today Bangladesh's biggest problem is widespread
corruption. The caretaker government of 2007-9 tried to tackle the corruption problem in an
isolated manner and did not succeed. I have argued in this paper that the root of all corruption in
our country lies in the manner we finance elections in this country. In order to really deal with
corruption in a meaningful manner, we have to change the way we finance elections. I have
suggested the easiest way to do so would be to adopt a system where elections are publicly
funded. At the same time, repressive laws that limits a citizens' fundamental rights like in
colonial times have no place in our country. In the past, our leaders have tried to deal with
national problems by limiting fundamental rights and our experience shows such methods cannot
solve the problems facing the leader. It makes the leader more tyrannical and eventually brings
his downfall.

In the end, I think that there are reasons for optimism about the future. If we consider the voting
patterns in the 1991-2009 period, when elections were held under the caretaker government, we
observe that neither of the two major political parties were able to win two elections in a row.
This suggests that these two major political parties cannot win an election depending on party
loyalists alone; they need the votes of non-partisan citizens to win an election. Hitherto, the non-
partisan swing voters have not demanded any specific reform in governance from the major
political parties in exchange for their support in elections. This paper has indicated where reform
is necessary. Non-partisan swing voters should be able to press their demands with the major
political parties if they can collectively negotiate their terms for their support. If the gonojagoron
mancha was organized through the social media, the non-partisan swing voters should also be
able to organize themselves using similar tools.

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