‘Primary problem is not with constitution, but political culture’

Published: 01:53, Nov 29,2018


Dr Shahdeen Malik

Participation of political parties is a primary condition but participation by itself does not guarantee free and fair elections, Dr Shahdeen Malik, an advocate of the Supreme Court and constitution expert, tells M Moneruzzaman in an interview with New Age

New Age: What is the principal crisis of democracy in Bangladesh?
Shahdeen Malik: The crisis we are faced with today are on two levels. Firstly, we have not been able to understand and internalise democratic value and norm. Our thinking is still largely feudal. To give an example, if an elected member of the parliament dies, our first instinct is to think about his family members such as wife or son as his replacement. This is clearly a feudal notion. As if the member of the parliament was the jamindar and on the occasion of his death his heirs will replace him, and it happens frequently. So we have replaced so-called democratic principle with rules of kinship, family lineage to be more specific. I see manifestation of feudal thinking everywhere. We have been comfortably using professional title before our names such as advocate x, engineer y, journalist z. We try to identify a person with their professional title as was the case in feudal society. There are ample examples of such practice in our time.
The second, problem of democracy is that democracy presupposes separation of powers and limited government. Instead of ensuring the separation of powers, the independence of the judiciary is constantly undermined, now the independence of the Election Commission is interfered. More importantly, the executive is controlling citizens’ life to the extent that are private life is also controlled and under surveillance. For example, recently, we have been told that I cannot invite my friends for a diner and perhaps for some music on December 31st. State is intruding our lives in an unprecedented manner.

New Age: Do you think that the next general elections are going to be inclusive, with all political parties actively taking party? What are the prime conditions for making elections inclusive?
Shahdeen Malik: The major political parties have declared their intention to participate in the upcoming elections. We must note that the participation of the political parties is a primary condition, but the participation by itself does not guarantee a free and fair election. I am very hopeful about their participation, at the same time I am doubtful about a free and fair election. The international community by declining to send observer to monitor the next election has already indicated that they don’t have much faith in the system in place for administering the election. The fact that they have decided too far ahead of election time is something worth taking a note of, it indicates that the result of the election is perhaps already known and being present their as observer won’t have much impact. The election commission has been largely partisan; therefore, there will be participation, but hardly any chance of a free and fair election.

New Age: Do you think that there would be a violence-free environment in and around polling stations, enabling voters to exercise their right to franchise freely? What are the conditions to create a congenial political atmosphere in which people would feel free to vote for candidates of their choice?
Shahdeen Malik: I hope there will not be actual physical violence. However, pervasive intimidation is increasingly normalised in our society. Violence will take place in the form of fear and intimidation to prevent ‘unwarranted’ or ‘undesirable’ voters to come to the polling stations — voters who may cast vote against the ruling party will be intimidated, discouraged to cast their votes. However, this atmosphere of fear and intimidation can be prevented if the election commission has the courage and power to change or transfer the superintendents of police in several districts within next seven to ten days. Such a step will help the commission to gain trust of people and change the public perception around it. However, I am skeptic about the power, courage and commitment of the election commission. Today, I am rather doubtful about the prospect of an inclusive election in the sense that participation of political parties alone does not make the election participatory. At least sixty per cent of voters will have to be able to cast their votes and have their votes properly counted. I have my serious doubt about that.

New Age: Elections are, indeed, primary conditions for democracy. What, in our view, are the other factors that make democratic practice meaningful?
Shahdeen Malik: As I said in the beginning we are still struggling to understand the meaning of democracy. Our student communities, for example, have had no experience of participating in and running an elected association such as students’ union for nearly three decades. They seem to have accepted the fact that democratic practices are not a part of their life in universities and colleges. Same goes with most of the professional organisations where leadership are imposed from the top rather than freely chosen by the members of the associations. Hence, I cannot help but be overwhelmed by this nondemocratic culture that we seem to have acquired, accepted and internalised. To be even minimally democratic, we have to begin early, we have to ensure that the student association even sports club, business and labour organisation etc, must adopt and practice democratic principles, and then we can expect democracy at the state level. Unfortunately, we have had almost three decades of no democracy in our social life. In this context, we could have some level of democratic participation in the national election, but we are far from becoming a democratic society.

New Age: Bangladesh’s constitution allows ‘electoral autocracy’ in that it provides the scope for a single person to head the state’s executive as well as legislative branches, leaving scope to influence the judiciary. Don’t you think that just credible elections are not enough, under such constitutional regime, to move towards democratic governance?
Shahdeen Malik: A credible election is certainly not enough but a necessary first step. Almost all of our political leaders spent at least half of their talking time praising the respective party head. Each and every minister for example broadly and frequently claims that whatever step s/he was taking has been instructed by the leader of the party. Similar practices are evident in all other political parties, this culture of deference and subservience of the supreme leader cannot be changed by amending a few word of the constitution. The constitution assumes a democratic culture but the constitution cannot be effective in a largely feudal and nondemocratic culture. Therefore, to my mind the primary problem is not with the constitution, but the political culture, a culture that allows an individual to remain as the supreme leader of their respective political party for more than three decades.

New Age: What kind of constitutional reforms would you propose to democratize the state’s constitution and governance?
Shahdeen Malik: My focus would be to ensure the separation of powers. I would certainly give more authority and budget to elected local government to take away ‘the roles of members of the parliament in development’. I will focus on the independence of the judiciary by drastically changing the disciplinary codes for the judges of the subordinate courts and enacting a law for selection of the Supreme Court judges and creating independent secretariate for the judiciary. Democracy cannot be installed keeping the repressive laws intact. The Digital Security Act must go. Injustice is most acute in the criminal justice system. Our criminal justice system delivers injustice. Criminals are not convicted and political opponents are the victims here. Changes in the criminal justice system can be achieved easily in the sense that many other countries have successfully undertaken this reform in the last two to three decades. We can learn from their experience to ensure that the victim of crimes and at least have the chance to see the perpetrators and the criminals punish. This is central to establishing democracy.

New Age: Successive governments — elected, half-elected or unelected — have always been busy making all kinds of effort, legal and extralegal, to make people accountable to the state and the government. How could the state and the government be made accountable to people?
Shahdeen Malik: The main culprit of our downward slide is our tendency to elect member of the business elite as the member of the parliament. A rich business person who runs his own business is not accountable to anyone. S/he works for profit and exercises an unlimited power within his business empire. By electing such a person, you cannot one fine morning expect that big businessman suddenly consider exercising democratic principles and care about ethics of accountability in his public role. Developed democratic countries don’t elect business tycoon as political leader. Obviously there has been exception such as US president Donald Trump — the whole world as a result paying the price of the head. We have grown used to electing our little Trump as the member of the parliament. After electing little Trump as the member of the parliament it would be foolish on our part to expect them to be accountable. We have to reevaluate our tendency employing the logic of money when making such political decisions of national importance.

M Moneruzzaman is a staff correspondent at New Age.

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