Tussle over July Charter threatens peaceful path to polls
As Jamaat and allies hit the streets with hardline demands, BNP holds firm on ‘election-first’ policy
Highlights:
- The political scene ahead of next year's elections is tense over the July Charter.
- Jamaat demands pre-election implementation, while BNP insists on an "election-first" approach.
- The Charter's legal authority and proposed measures have raised concerns of risky precedent.
- The Consensus Commission hopes for agreement, but peaceful polls remain uncertain.
The country's political scenario leading up to next year's parliamentary elections has become more complicated in recent days. Even though the head of the interim government, Muhammad Yunus, has reiterated his commitment to hold elections in February, statements from various parties and lack of consensus in the Consensus Commission have further heightened anxiety over the prospect of peaceful polls.
The complications this time appear to be centred on the implementation of the July Charter, which is essentially a set of proposals for constitutional reform.
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The Consensus Commission has worked for months with 30-odd parties to agree on the set of reforms. But now the discourse - and discord - has moved onto the implementation of the 84-point Charter as it currently stands, with "notes of dissent" on many of the points.
Key political parties are poles apart on how and when to implement the Charter, and the ideas currently floating around do not give rise to hope for future stability.
The interim government appears to be under significant pressure from a group of political parties, spearheaded by the Jamaat-e-Islami and National Citizens' Party (NCP), to implement the Charter before elections. Jamaat and a number of other Islamist parties have now hit the streets to add muscle to their demands.
The Commission has said a "constitutional order under the authority of Article 22 of the July Declaration" can be issued to make the Charter effective as law, and the enactment can be endorsed through a referendum on the same day as the next general election.
Declaration vs Charter
The Consensus Commission, set up by the government and headed by Yunus himself, has clearly taken a position in favour of the Jamaat-NCP camp. The BNP's protestation that implementation of the Charter through executive order would set a dangerous precedent, is apparently falling on deaf ears.
The proposal itself is not without serious pitfalls.
The July Declaration, issued on 5 August this year, is undoubtedly an important political document. It is a statement of will of the parties that took part in the movement that overthrew the Hasina regime last year. But how does it gain the legal authority to amend the constitution?
Invoking Article 22 of the Declaration to issue a constitutional order would certainly give the Charter a political cover. But whether that would give it legal cover or not is a different question, which would no doubt be debated by legal experts in the days ahead.
In the past, military rulers such as General Ziaur Rahman used Martial Law Proclamations to change provisions of the constitution. At the time, the constitution itself was suspended and the country was ruled by Martial Law. All those MLPs had to be ratified by parliament later.
But that has not been the case in the past one year. The Yunus government was appointed after the President obtained the opinion of the Supreme Court regarding the legality of an interim regime. Since then, all actions of the government have been taken under various provisions of the constitution.
BNP's cold water
The Commission says its proposal for "constitutional order" followed by a referendum was suggested by legal experts, who based their formula on various ideas suggested by the political parties. But one of those parties, the BNP, has already poured cold water over it.
BNP leaders have already raised questions about the July Declaration's legal authority to implement constitutional amendments. They have pointed out that the Declaration talks about necessary constitutional amendments to be carried out by the next parliament.
The BNP has suggested seeking the Supreme Court's opinion on whether the interim government is competent to enact changes to the constitution. Other parties such as Jamaat and NCP are opposed to the idea of seeking the Court's opinion, possibly because they fear a negative response could scupper the Charter altogether.
It is clear the BNP is not comfortable with all the proposals for constitutional reforms that the Commission has been pushing for in these lengthy rounds of talks. The BNP is clearly not comfortable with talk of incorporating these reforms into the constitution before any election.
Jamaat's proposal, on the other hand, is much closer to what the Commission has put together.
Jamaat has called for what they term as a "Provisional Constitutional Order" which will place the July Charter above the current constitution as well as all existing laws of the country. They have talked about a referendum "if necessary" but insisted on the Charter being given force of law before the elections.
Intriguingly, Jamaat has also proposed that all criticism of the Charter be banned, and no court be allowed to pass judgement which conflicts with this order. They propose to make any attempt to "defy" the order a case of "treason." They have proposed an oath of allegiance to the Charter by all election candidates.
Such proposals are quite draconian and other parties have been labelled "fascist" for far less.
Risky precedent
Implementation of the Charter would involve amendments to and cancellation of a variety of provisions in the constitution. One could argue that only parliament has the authority to make changes to the constitution, and even then, changes to certain clauses would require ratification in a referendum following a two-thirds majority vote in parliament.
Wholesale amendment to the constitution through presidential or executive order could possibly create the kind of legal complications that Bangladesh can certainly do without at this stage.
Furthermore, even if the "constitutional order" is subsequently endorsed in a referendum, it will establish a risky precedent that a government can change the constitution at will, while parliament remains dissolved, as long as it can get it past a referendum.
It could plausibly open the door to the kind of authoritarian behaviour that the reforms process was set up to prevent in the first place.
Bangladesh does have experience with referendums, often referred to as a "Yes/No Vote." The experience is a mixed bag.
Two military rulers - General Ziaur Rahman in 1977 and General HM Ershad in 1985 held referendums to endorse their own rule, and claimed massive voter turnout and huge Yes votes. Nothing to see here.
The only referendum held under a political, elected government, in 1991, produced just 35 per cent turnout which was realistic. The outcome - a big Yes vote - was not surprising either, as all major parties backed the amendment to revert the country to a parliamentary system of government.
The question is, which kind of referendum would show up, if one is held to endorse - or reject - the July Charter?
Positive spin
The Commission has now gone into "recess" and will convene again next month. They hope political parties will have re-thought their position on the "constitutional order" proposal and reach a consensus. That hope sounds rather forlorn at present, given the BNP's fundamental opposition to it.
But the government side is spinning a tale of optimism with an intriguing element.
Chief Adviser's Press Secretary Shafiqul Islam posted a long comment on Facebook on September 17, in which he suggested the matter will be resolved in the coming "weeks."
"I am cautiously optimistic that in the coming weeks – not months – the July Charter will gain the full endorsement of all major parties," Alam wrote. "The major parties will concede ground quietly, and the country will prepare itself for a general election."
Clearly, he is referring to the BNP, since that is the only "major" party that needs to "concede ground" for the Commission to push through their proposal. What kind of carrot (or stick) BNP is being offered to "concede ground", remains the intriguing part.
Whatever the case, the neutral observer and well-wisher will expect the elections to happen in a free and fair manner, in or before February, with full and peaceful participation of all the parties.
The amendments proposed in the July Charter can be implemented by an elected parliament, but putting the elections in jeopardy through wrangling over the Charter will surely threaten stability and peace in the country.
The writer is former Head, BBC Bangla and former Managing Editor, VOA Bangla. He can be contacted at: sabir.mustafa@gmail.com.
