Crisis in governance

The past few hours have witnessed violence, arson, death of activists, and pitched battles on city streets. Press reports have indicated that more than 500 have been injured. Tens of thousands of people returning home from their Eid holidays have also suffered. Electronic media has also reflected the public reaction -- exasperation and anger.Ego and need to display control over political turf, have led to destruction of rival political party offices. Confrontation, as predicted, has ruled the landscape.

This situation is indeed regrettable. Instead of understanding, compromise, and tolerance, we have seen rigidity, inflexibility, and a warped interpretation of existing constitutional norms. This, in a manner of speaking, was also a demonstration of how things can go wrong if Institutions are not given the respect due to them. Good governance hangs today by a thread. We have a crisis in our hands.

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Newspapers have headlined that former chief justice KM Hasan is indisposed. This has been interpreted by many analysts as diplomatic illness. Some have gone on to suggest that he is "unwilling" to assume his responsibilities as chief of the next caretaker government.

Rumours, contradictory statements, and assessments have been churned out in Dhaka for the last few days. Some have tried to explain their position within the narrowest possible interpretation. In their quest, they have singled out a tree and refused to see this as part of a forest.

Most arguments have centered on Article 58 C of Chapter 11 A of the Constitution that relates to the Non-Party Caretaker Government. It has been central in every round of discussion that has taken place between the BNP secretary general and the secretary general of the Awami League.

In this context, the BNP has continued to refer to the provisions in Article 58 C (3) and demanded that the president is constitutionally bound to appoint Justice KM Hasan; the last retired chief justice to the post of chief adviser of the caretaker government. Within this context, they have also drawn reference to the second paragraph of the same section, and underlined that if Justice KM Hasan is "not available or is not willing to hold the Office of the Chief Adviser" then the president under Article 58 C (4) should appoint as chief adviser "the person who among the retired Judges of the Appellate Division retired last" -- Justice Aziz, presently occupying the post of chief election commissioner.

This argument has been based on two premises: (a) The person who retired as chief justice before Justice KM Hasan is dead, and (b) Justice Aziz is the last retired judge from the Appellate Division.

There is an old adage in English, "you can drag a horse to the water-hole, but you cannot force it to drink." Unfortunately, this is the situation here. The legal and political pundits within the BNP have carefully overlooked several factors. I shall outline them below:

• Article 7 (2) of the Constitution explicitly states that the Constitution is the solemn expression of the will of the people. In this context, it would be worthwhile to note that the majority of the people of this country think that the appointment of Justice KM Hasan would be controversial, because of the changes undertaken to ensure his becoming the next Chief Adviser. This feeling cannot be disregarded;
• Article 58 C (4) states: "If no retired Chief Justice is available or willing to hold the Office of Chief Adviser." This clearly connotes that such process of selection or appointment cannot be restricted in the narrowest sense only to the chief justice who retired just before Justice KM Hasan, a person who is dead. How can a dead man be construed to be in the line of succession? Such a deceased person cannot be seen as being an obstacle for selection of another retired chief justice, particularly, when one is available and able and willing to perform this difficult task;
• Article 118 (3) (a) of Part VII of the Constitution clarifies that "a person who has held office as Chief Election Commissioner shall not be eligible for appointment in the service of the Republic." There are some who maintain that a judge is not a servant of the Republic. In that context, they assert that Justice Aziz consequently can be appointed as chief adviser.

The question here is whether Justice Aziz fits the requirement. Firstly, there is a debate and a pending unresolved writ as to the legality of his having carried out the dual functions of a judge of the Appellate Division and the chief election commissioner. Secondly, it is also disputed as to whether he is at all the last retired Appellate Court judge. Thirdly, questions have been raised as to whether the constitutional post of chief adviser comes within the definition of being "a service of the Republic." I believe it does. The definition given under Article 152 (1) of the Constitution clarifies this matter adequately. Lastly, by his controversial actions as chief election commissioner, he has already demonstrated that he is totally unsuitable to hold the distinguished post of chief adviser.

Despite all the confusion, one thing is very clear. This is a complex problem. We have eminent jurists and constitutional experts. We also have an erudite president who knows that if there is a problem, there can be a solution.

I think that in such a situation, the only correct thing that the president can do, is to seek the legal opinion, not of the Ministry of Law and Parliamentary Affairs, which has been tainted with the process of election engineering, but of eminent jurists and lawyers from the Supreme Court Bar Association. He may like to receive them, and discuss with them, in the presence of representatives of the Ministry of Law, the different ramifications of the several contentious interpretations. This is the only way out of the impasse.

In the meantime, we have a critical scenario. For the first time, since 1971, we are faced with some serious questions regarding the maintenance of law and order -- the basic ingredient for continuance of governance in any country. There are two aspects to this factor. Law enforcement personnel not only have to be loyal, but they also have to be committed in their task. If both elements are not available, it can only lead to political anarchy and breakdown of national security.

We have seen what happened in Kansat, Phulbari, and Shanir Akhra. We have already read about declarations that will impede the natural flow of life and will definitely affect the process of economy. We have to be very careful. We have to understand that maintenance of law and order is the first pre-requisite for the holding of a free and fair election. I am not suggesting that like 1971, political divisions will lead to groups of law and order personnel taking sides. That will be a disaster.

Unfortunately, the electronic media has already telecast several scenes of the police watching silently as arson and chaos have taken to the streets. Any process of containment depends largely on perceived deterrence. This factor is also contingent to acknowledged universal legitimacy.

Today, we have a debate and controversy about partisanship and the process of governance. We are also standing on the brink of a melt-down. This need not happen. Let wisdom and the popular will of the people prevail for a change.

Muhammad Zamir is a former Secretary and Ambassador.