Monday, March 10, 2008

Strength or Humility? Time to Change Caretaking Approach

Strength or Humility? Time to Change Caretaking Approach
Contributed by Gopal Sengupta
Source: The Progressive Bangladesh
February 21, 2008

Bangladesh's caretaker government and its military mentors have indeed done some notable work. The first is bringing charges against certain powerful people, who used to be perceived as being above the law, though one cannot say that the ways of detaining them were adequately lawful.

Then, of course, they have had such vital institutions of the state as the Election Commission, Anti-Corruption Commission and the Public Service Commission reconstituted. Importantly still, they have completed, albeit on paper, the separation of the judiciary from the executive.

Paper vs. reality
Regrettably, the initiatives, however well-intentioned they may be, have thus far yielded hardly any positive results. One need not be a legal expert to understand that the judiciary is still very much under the executive's control. Also, the reconstituted Election Commission, which is ordained and expected to create a level playing field for credible and contested elections to the ninth Jatiya Sangsad, is perceived by many quarters to be pursuing an agenda of complicating the political process.

Finally, the less said about the government's anti-crime and anti-corruption drives, the better. With the High Court's recent judgement, it is now time for the powers that be to ponder the legality and constitutionality of many of the measures they have undertaken in respect to the prosecution of a whole class of individuals. Emergency or not, how can the government bring a case on charges stemming from crimes allegedly committed many years ago under the purview of rules put in place a mere year ago?

The High Court steps in valiantly
In a landmark judgment recently, the High Court in Bangladesh quashed all trial proceedings of an extortion case against Sheikh Hasina, a former Prime Minister. The High Court observed that the sections of the emergency laws curtailing the court jurisdiction to grant bail to the accused persons were ultra vires of the constitution.

The High Court has delivered what the general public would consider an obvious judgment. The Court has indeed upheld a simple legal point that no law covers any offence committed before its enactment. But equally important, the Court has hammered in a reality check and a lesson in humility to the arrogance of the current government.

The wide-ranging implications of the judgment are not hard to see. The accused could have been tried under the existing laws of the country without creating any controversy. We cannot but question the wisdom of the government’s legal advisers who clearly failed to see in advance the weaknesses and limitations of applying emergency laws that they themselves wrote, when the existing laws could have taken care of the corruption cases. The lesson to be learnt from it is that any short-sighted attempt to take a shortcut in a legal matter might backfire and undermine the whole edifice of the justice system.

Losing steam
So the unprecedented anti-graft crackdown by military-led caretaker government (CTG) is gradually losing impetus. Aside from legal shortsightedness, numerous difficulties, including frequent shift in priorities, have made the drive too complex.

Although the drive succeeded in creating an impression that no one is above the law, valid questions were raised about different issues including discrimination in targeting corruption suspects, preparing quality graft cases, and the role of the National Coordination Committee to Combat Corruption and Serious Crimes (NCC) in dealing with other serious crimes.

Taskforce sources said there were discussions among themselves about a trend of discrimination in targeting graft suspects since many influential persons widely known as corrupt still remain out of the dragnet, while others are allegedly targeted for political reasons. This has resulted in a decline in public faith in the ongoing anti-graft drives, and in a permeating sense of frustration among the taskforce personnel.

Moreover, NCC added a new dimension to the drive by bringing into its focus institutional graft, targeting around seven institutions in the first phase, while leaving widely known corrupt institutions and sectors like local government and rural development (LGRD), local government engineering department (LGED), agriculture, and education still untouched. Also The task force sources said that fearing an adverse reaction in the bureaucratic apparatus they could not even proceed to file many graft charges. There are other questions as well, notably those relating to the grant of bail to detained individuals. To what extent prosecution lawyers' appeals against bails granted to detained political figures amount to an upholding of the law is an issue that must now be broadly assessed within the corridors of the administration.

The arrogance of applying laws at gunpoint
It is not just surprising, but mind-boggling as well, knowing that the legal luminaries of the government, of the Anti-Corruption Commission, did not know what people around the country already knew. The recent High Court judgment has simply put paid to a case pursued in a shoddy, unthinking manner. The government must understand that taking a shortcut in legal matters can boomerang. If so, when the state of emergency is withdrawn, even the genuine offenders may well rush to higher courts and get themselves acquitted of the charges brought against them.

Moreover, the manner in which the interim government has employed the army-led joint forces in its anti-crime and anticorruption drives has induced a climate of fear in the business community, which, in turn, has resulted in a sharp decline in investment and business activities, and concomitant fall in export and loss of employment.

All along, the prices of essential commodities have spiralled out of the reach of even the middle-income people. Last but not least, amid all these, the interim government has failed to deliver on its primary mandate, i.e., help the Election Commission hold the stalled general elections within the 90-day constitutional timeframe. Ultimately, the 'good' work of the government and its military mentors seems to have landed the country in a larger economic and political mess than it was in before the incumbents took over the helm of the state.

Bring back humility
The qualities of the present caretaker government -- authority, fortitude, heroism -- sound like the qualities of an autocrat. At this time, Bangladesh needs a leader with not strength and arrogance, but the humility to admit that the country is on the wrong course. Institution after institution have failed Bangladesh -- the presidency, caretaker government and the judiciary. They all endorsed a war to rid Bangladesh of different things like corruption, while trying to keep the same spoils for themselves.

Many reform critics are no different, who are so hyped on their own sanctimony that they will obliterate distinctions, punishing their friends for apostasy and, by so doing, aiding their enemies. If that's going to be the case, then Bangladesh is in a war its critics will lose twice -- once because they couldn't stop it and again at the polls and in handing over power to another group after having caused further damage to institutions, accountability, and transparency.

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