In a democracy, the heads of the government – both presidents and prime ministers – are the subjects of the most media coverage and the targets of most of its criticism. In Bangladesh's case, while the former is more than true, the latter is non-existent. Such is the state of our press freedom. What makes this phenomenon more disheartening is that there is no law that says the media cannot criticise the PM. Still, we have enchained ourselves to self-censorship, perhaps subconsciously remembering what Idi Amin once said when asked about press freedom in his country, "There is freedom of speech, but I cannot guarantee freedom after speech."

The promptness and severity with which some social media critics of our PM have been jailed has created an atmosphere of intimidation. The existence of laws like the ICT, DSA, CSA, etc, the misuse of defamation and other laws, and the collective demonisation of independent media by the pulpits of power and their cacophonous resonance from a domesticated media have taught us better.

It is against this backdrop that we raise a question about a remark made by the prime minister, last Tuesday, about the BNP chief's treatment abroad. Our PM said, "…she is 80 years old, at this age death is imminent; and she is also sick, so why this hullabaloo? No amount of crying will help this situation…" (own translation from the original in Bangla).

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By this, did the PM mean that, as Khaleda Zia is 80 years old, we should stand back and see her wither away? Don't we believe that it is the Almighty who decides when a person's time comes to make the Eternal Journey? Is it not the practice in every country, culture and religion to extend all possible help to save a person's life? Whether a person will live beyond 80 or not is not our decision to make. Our duty is to try our best and do everything in our power to save the person's life. That's what civilisation is all about. One may have hundreds of reasons to despise their opponent, but such public comments can only further fuel hatred.

Our PM made another statement on Monday, in which she said, "Democracy must continue in Bangladesh at any cost. In no way should the undemocratic forces assume power."

We support her wholeheartedly on this score. It is a point of Bangladesh's pride that, however flawed it may be, we continue to practise democracy and have made significant economic progress while remaining within its broad framework. But is the PM's government and her party working to strengthen it? Did her continuous rule for the past 15 years – 20 years if we count her first term – enjoying unrivalled power and undisturbed tenure (no hartals or disruptions) – consolidate democracy? Did this unfettered rule, never before enjoyed by any other party or even military dictator, strengthen any of the institutions of democracy, such as the parliament, judiciary, media and statutory bodies, that ensure accountability and rights?

While the PM reiterated her commitment to democracy, her party's secretary general and roads and transport minister, Obaidul Quader, remarked in a public meeting on Tuesday, "Where is the sanction? Where is the visa policy? Secret negotiations have been completed so there is nothing to worry about." "Sanction" and "visa policy" point to the secret negotiations with the US. He further said, "The US needs Delhi. Delhi is there, we are there." This implies that the second party in the secret deal must be India. So, according to the secretary general of the ruling party, a secret deal has been worked out with the US and India so that the AL will have "nothing to worry about."

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This implies, based on the words of the ruling party secretary general, as Delhi supports it, AL will continue to be in power. What else can "nothing to worry about" mean? And what does this say about our sovereignty and dignity as a country and a people? About the independence of our government, since its continuance in power is apparently determined by our neighbour? What does this say about the relevance of our elections?

Where does all this leave us, the voters? In the 2014 election, 153 MPs were elected uncontested. For a house of 300 MPs, that meant that a majority was attained to form the next government without a single vote being cast. Then, in 2018, voting took place the night before. And this time around, the "result" of the election is being "negotiated" with external powers. Is that how democracy works these days in Bangladesh? Is that what the AL secretary general is referring to when he says "khela hobe (the game is on)"? It seems our election is all set to be an example of "match-fixing" rather than of "fair play."

Election season in a democracy is when power changes hands from the government to the people. Theoretically, it is an occasion when the people once again feel empowered. Tragically, this is not the case for Bangladesh.

If we analyse how the government is oppressing the opposition under a legal guise, it becomes evident that the "level playing field" does not exist for them. Whatever other records this government may have set, nothing compares to the use of court cases to victimise the opposition. According to sources at the BNP office, around 1.12 lakh cases have been filed implicating 39.78 lakh BNP leaders and activists since 2009. In addition, there are "unnamed accused" whose number exceeds those of the named. (The latter category is used by police to implicate anybody at whatever stage of an investigation, to extort bribes.) Even if we disregard 50 percent of these – taking into account possible exaggeration – nothing can explain this amount of lawsuits except political victimisation.

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According to a September 20 report by Prothom Alo, Habib un Nabi, joint secretary general of BNP, has 450 cases against him; Saiful Alam, past president of Jubo Dal, has 350 cases against him; Jahangir Hossain, leader of the youth wing of BNP, faces 317 cases; Sultan Salahuddin, president of Jubo Dal, has 315 cases against him; Amanullah Aman, adviser to the BNP chairperson, is facing 250 cases; and 180 cases have been made against Senior Joint Secretary General Ruhul Kabir Rizvi. Most senior members of BNP's highest decision-making body – the standing committee – have cases against them. There are many others who have more than 150 cases against each of them. Mirza Fakhrul Islam Alamgir, secretary general of BNP, has 98 cases filed against him. A senior female leader, Selina Rahman, who is more than 80 years old, has four cases against her, one of which is for arson – specifically for setting fire to a bus. Appearing in court for each case can easily take up the whole year. Most of these cases are 5-10 years old and have remained dormant for most of the ruling party's tenure. Now that the election is approaching, suddenly, these cases are acquiring a new life, with police becoming too eager to "serve the law."

We don't need any other statistic but the above example of cases against the biggest opposition to prove that all claims by the government and Awami League about holding a free and fair election is far from credible.

Our chief election commissioner (CEC) said on Wednesday that he is not worried about the "legitimacy" of the elections and is determined to hold "a lawful election." That is precisely what we are afraid of. Again, in 2014, as many as 153 MPs were "elected" uncontested. These so-called elections were legally "correct." But were they morally and ethically so? Was it an exercise in democracy? How do you think 4,80,21,983 voters out of a total of 9,19,65,167 felt when they could not cast their votes, for which they had waited five years?

Yes, we must have a "lawful election," but it must also be a "credible election" – credible to the voters and not simply to the winning party. By far, the most important aspect of an election is the "free and unfettered expression of the public will." Ensuring this is the most important task of the Election Commission, not only the formal compliance with the law. The CEC must be conscious of democratic, moral and ethical aspects of an election, not just the legal ones.

Mahfuz Anam is the editor and publisher of The Daily Star.

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The Election Commission and Awami League seem to have started taking preparations for the coming national election.

The Jatiya Party, the main opposition in parliament, is also making preparations to participate on its own, not part of the AL-led alliance.

The AL and the JP are currently finalising their election manifestos and the lists of lawmaker nominees.

AL chief Sheikh Hasina started campaigning on August 2 in Rangpur by seeking votes. She asked the AL lawmakers to stay in their constituencies, make door-to-door visits to the constituents and quell feuds within the party.

To set an example, she even stayed at her Gopalganj-3 constituency for two days in July and met voters.

Almost all members of the ruling 14-party alliance are also getting ready for polls slated for January next year.

AL Joint General Secretary Mahbubul Alam Hanif told The Daily Star that the AL is completely focused on the 12th national election.

"We are taking all-out preparations for the election. We are meeting people, highlighting our government's achievements, collecting information to find the fittest nominees, organising rallies across the country, taking steps to keep grassroots united by resolving rifts, making door-to-door visits to woo voters, and drafting our manifesto," he said.

Meanwhile, the EC has redrawn 10 constituencies, registered two new political parties, updated the voters' list, and made a primary list of 42,350 polling centres.

Amendments to an electoral law have also been made.

Election Commissioner Brig Gen (retd) Ahsan Habib Khan said, "We are making preparations to hold a free, fair, acceptable and participatory election in line with our roadmap announced in September last year."

Political parties are presumably making their own plans and policies for their preparations, he told The Daily Star yesterday.

Election Commissioner Anisur Rahman at a programme in Kishoreganj yesterday said the schedule for the polls would be announced in November.

"The participation of all parties in the election does not depend on us. Parties are to decide individually if they want to take part in the polls. But we will create a conducive atmosphere for elections," he said.

The current parliament expires on January 29. According to the constitution, the national election must be held anytime during the final 90 days of the parliament's tenure. The 90-day countdown starts on November 1.

EC'S PREPARATIONS

The EC has approved 66 local observers to monitor the polls and invited more organisations to observe the elections. It is also at the final stage of changing the policy for approving international observers and journalists.

The procurement of election materials like transparent ballot boxes, seals for the ballot boxes, stamp pads, indelible ink markers, official seals, and marking seals will be completed between this month and November, EC officials said.

THE AL CAMPAIGNING

The ruling party's manifesto will highlight the government achievements. It will organise concerts in every district town to publicise the achievements.

Teams are being formed to run social media campaigns highlighting the achievements and "misrule during the BNP-Jamaat alliance".

The promise of a "Smart Bangladesh" by 2041 will also be prominent in its manifesto.

The AL has conducted several surveys to find suitable candidates and another survey is going on. It wants to make sure no disgruntled AL leader runs against the party nominees. The AL plans to field independent candidates so that the election appears participatory even if the BNP shuns it.

AL's top leaders are in talks with like-minded political parties to bring them under its fold and with other parties to get them to take part in the polls and make the election look participatory.

It has also had preliminary talks with allies over the share of seats in parliament.

"After the PM returns from the US, she will start campaigning across the country," said an AL praesidium member.

Hasina will inaugurate a number of mega projects before November to impress the voters.

An AL insider said, "An election-time government with a small number of cabinet members will likely be formed in the first half of November."

THE JP GETTING READY

The JP is asking its probable nominees to get ready for the election, according to sources.

It is looking for the best candidates in areas where there are not many supporters of the party. It believes that without a good number of MPs in parliament, the party will become weak, said a JP leader.

"We want to make the party vibrant through holding local councils," JP Chairman GM Quader told this newspaper.

"We will try our best to field candidates in all 300 constituencies," he added.

President of AL ally Workers Party of Bangladesh Rashed Khan Menon yesterday said, "We are collecting names of probable candidates from the districts." He said they were in discussion with AL over seat-sharing but no final decision has been made.

Since the interim government under Prof Muhammad Yunus came to power, intellectuals have been writing and speaking about how the interim government can be legitimised under the current constitutional system of Bangladesh. Some have even argued that removing the non-party caretaker government (NPCG) from the constitution was unconstitutional as it affected democracy and the people's right to a fair election. Learned lawyers have even filed petitions to restore the NPCG system in the constitution. I would argue that restoring the removed provisions of the constitution would be futile, and over-reliance on the system of the past would lessen the chances of achieving the reform people desire.

To plan for a better future for Bangladesh, we must first acknowledge that the Bangladesh Constitution has failed to maintain a robust democratic system. Under the 1972 constitution, Bangladesh has continuously struggled with peaceful transitions of governmental power. The struggle did not end after the introduction of the NPCG system. In its 53 years of existence, the people of Bangladesh had to shed their blood and sacrifice valuable lives multiple times for changing political regimes. In a constitutional system, if the transition of power frequently causes loss of lives, the system must be flawed, if not a complete failure. However, it would be unfair to blame the constitution solely for Bangladesh's misfortunes. Our constitution is not a divine book containing ultimate wisdom, but an artifact weaved from political decisions and compromises. It has been amended by democratically elected parliamentarians and autocratic regimes alike, bending the constitution to meet their political agendas respectively. Sticking to a failed system or bringing back another is neither necessary nor wise.

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We recognise the constitution as having more democratic and legal legitimacy than ordinary legislation because we consider constituent power to be greater than legislative power. Constitutional supremacy does not stem from a provision of the constitution that declares itself to be supreme. Instead, its supremacy comes from the people's decision to treat it as such. The theory of constituent power that was presupposed by the makers of the constitution of the United States of America notes that "people's will [is] both anterior and superior to every instance of positive law, not excluding any constitutional text" (Richard S Kay, 2011). The same principle that gave the people of Bangladesh the power to adopt our previous constitutional structure allows us to create a new one. The people's willingness to breach the curfew order and take to the streets to overthrow the previous regime can be taken as people's will to reject the previous system. However, we do not have to rely on the implied will of the people. One way to know if the people want a new constitutional system is by holding a referendum. Thus, we can expand our visions of reform beyond the boundaries of the existing or past systems.

We must also acknowledge that justifying the interim government's legitimacy through the constitution in its current form is unnecessary. It is already settled that the constitution, in its current form, does not recognise an interim government and it is not the same as the NPGC. The NPGC system had a fixed tenure, and its primary mandate was to ensure a free and fair national election. The current interim government's primary mandate is not only to hold an election but also to bring significant reforms. The NPGC was designed to be headed by the most recently retired chief justice of Bangladesh unless she/he refused. The design of the interim government is quite different from the design of the NPCG. If the interim government had the same design as the NPGC system, the people may not have accepted it as openly as they have. Thus, even if the NPCG system is brought back into the constitution, it would not automatically give legitimacy to the interim government. It is also important to note that the interim government's legitimacy will derive from the legacy it leaves behind and its ability to reform Bangladesh and restore democracy, in spite of any justification it has in its favour.

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We must appreciate that the current time and circumstances have presented us with an opportunity not enjoyed by most generations. Time has presented us with the chance to reconstitute ourselves. The cost of lives is too great a price to ensure the proper transition of governmental power. It is not feasible or reasonable to ask the people of Bangladesh to pay this price every 10 years or so. An ideal constitutional system should outlive at least its framers' generation. If we fail to create a system that is peacefully carried on by future generations, we will have failed to "constitute" anything. The spirit of the constitution is more important than the text. As long as we can retain this spirit, we do not need to carry the mistakes of our ancestors forward.

Nafiz Ahmed teaches jurisprudence at North South University. He can be reached at: na538@cantab.ac.uk

Views expressed in this article are the author's own. 

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