Friday 7 September 2012

Solution for Governance Problem in Bangladesh
How to establish clean governance
Mo Chaudhury

Since Bangladesh emerged as a new nation in 1971, it has made enormous strides in terms of economic advancement during the last four decades. This feat is rather impressive given that political violence and instability gripped the country for most of this period and show no sign of abatement anytime soon. Unfortunately, a very poor record of corruption, violence and human rights abuses continues to tarnish the image of Bangladesh and poses a significant risk to harnessing the country's explosive development potentials. While a multitude of toxic factors, including some external ones, might be interacting to result in such degradation, by far the most recognised and detrimental one is the widespread and chronic failure in state governance perpetuated by severe moral decadence across the entire spectrum of citizenship, but more fatally across the hierarchy of political parties.

Undeniably moral decadence and the resultant governance failures also permeate the critical machineries of public administration, law enforcement and judicial system. But in the end, the buck stops at the top in a democracy, it is the senior leadership of the political parties that set the de facto moral standards for the country as a whole. The probing question is what is it they can do to turn around the situation.

Bangladesh is not suffering from a dearth of civil and criminal laws; it is the rampant violation and politically motivated abuse of those laws without sufficiently adverse legal consequence that is handicapping the country. It stands to reason that the foremost thing that any ruling party can do is to eradicate the culture of influencing the actions of the law enforcement forces and the courts. The problem, however, is that the competing parties may not follow the same clean route if and when they come to power. This is because there is little legal downside, if at all, to unduly influencing the law enforcement forces and the courts. Based on historical experience, there does not seem to be any longer term electoral punishment either, as the resources garnered and the influences bought during the ruling time appear to be mighty enough to outweigh the negativity of the transgressions. In fact, arguably, in the absence of credible commitment from the competing parties, transgression could be even optimal to compete effectively in the future electoral cycles and to withstand politically motivated prosecution, legal or otherwise, in case of electoral loss. To make things worse, Bangladesh regimes, democratically instituted or not, are prone to making constitutional amendments for the sake of political expediency, in some cases only to be reversed or declared illegitimate by another regime. The prospect of such constitutional piracy greatly adds to uncertainty about the constitutional environment within which a party, if dethroned, would have to reposition itself in future.

To summarise, the crux of the clean governance problem is that currently there is no credible mechanism for the political parties, ruling and opposition, to commit to clean governance. Any such mechanism should be such that both the ruling and the opposition parties find it credible in the sense that future transgression by the competitor, when ruling, appears impracticable or at least very unlikely.

One such mechanism to consider is for the ruling party (alliance) to legislate an act akin to the following.

Clean Governance Bangladesh (CGB) Act

A. Make a constitutional provision that the Home and Justice Ministries will be led by elected members of the main opposition party in the legislature.

B. Make a constitutional provision that the constitution can be amended only through 60 per cent+ support in a referendum that must have participation rate of 60 per cent+.

C. Make a constitutional provision that only democratically elected parliamentary governments can call for referendums on constitutional amendments.

Once the ruling party enacts CGB, by virtue of Part A, both ruling and opposition parties know that the next electoral defeat would place them in control of the key ministries of home and justice that the winner cannot rely upon any more to get away with influence peddling and corrupt practices in general. The defeated party, that is, the post-election opposition party would now enjoy better protection against political prosecution by the ruling party, and may even try to engage in influence peddling while in opposition. This latter prospect, however, does not seem promising for the opposition since all other (than home and justice) ministries and the legislature will be controlled by the ruling party, and these ministries offer the vast majority of financially and politically rewarding opportunities for influence peddling. On the downside, administrative stalemates may ensue if the ruling party passes laws that the opposition refuses to enforce and the courts are reluctant to uphold. But if the passed laws are favoured by the electorate at large, this downside should be limited since the opposition would clearly be held accountable for not respecting the wishes of the electorate.

An unpleasant and challenging problem may arise if the opposition decides to use the home and justice ministries to initiate new and/or to restart previously stalled investigation and prosecution of alleged malpractices undertaken by the ruling party prior to the CGB Act. To address this problem, the CGB Act may be extended to include a temporary clause that would constitute a special investigation committee of non-active law enforcement officials and a bench of retired judges, agreed upon by both the ruling and the opposition parties, to handle the alleged infractions committed by either party prior to the CGB Act. Along this line, some may argue for replacing Part A of the proposed CGB Act with a Caretaker Government (CTG)-style alternative, albeit with a very limited scope, whereby the home and justice ministries are headed by non-elected and non-partisan ministers that are acceptable to both parties. But such a CTG-style alternative to Part A seems problematic in several ways. It is not in the tradition of parliamentary democracies where the ministers are members of the parliament, the chosen non-elected ministers will not be politically accountable to the electorate, and it is extremely difficult to find ex-ante non-partisan (and competent) persons, acceptable to fiercely contestant parties, for the said ministerial positions, and then to assure non-partisan performance on a continued basis.

Part B of the CGB Act is intended to ensure that, once CGB is enacted, ruling parties cannot grab back the critical home and justice ministries and make other constitutional amendments that easily in future. In addition, Part C will not permit non-elected regimes to change the form of government away from parliamentary democracy and thereby assume sweeping powers. The two 60 per cent+ thresholds would make sure that any constitutional amendment is based on a referendum where significantly more than half of the electorate voice their view and a significant majority of the participating electorate is in favor of the proposed amendment. There is nothing magical about the number 60 except that it seems reasonable to use thresholds that are greater than 50 but are not too high such as to make constitutional changes practically impossible or irreversible.

Together Parts A, B and C of the proposed CGB Act provide a very clear and concise framework whereby the contesting political parties (or alliances) can credibly commit to stopping the cycle of governance malpractices that is destroying the moral fabric of the nation and holding back the attainment of its fullest advancement potential. This framework is not perfect - no framework is - but at the very least it could be the basis of a permanent or long-term solution to the fatal governance illness Bangladesh is suffocating from.

One last impediment to this solution is the lack of incentive for a ruling party to enact the CGB if it foresees winning the next electoral contest since in that case it can continue to use governance malpractices to its advantage at least until toward the end of the projected mandate.

This suggests that, failing a yet-to-be-seen overarching conviction to fix the governance problem, realistically the best prospect for enactment of a CGB-like act is a situation where the ruling party is not quite confident about winning the next contest and/or foresees turmoil that could once again derail Bangladesh from the trajectory of parliamentary democracy. Only time will tell how long the people of Bangladesh will have to suffer before that moment arrives.

The writer is a Professor of Practice in Finance at McGill University, Montreal, Canada. 

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