The Reform Reality Check

A reform truly becomes a reform when it begins to reform something. This self-evident truth appears to have escaped most of the players today engaged in the task of reforming the nation.

All reformers -- from Dr Yunus to Ali Riaz and his Consensus Commission (CC), all the political leaders, particularly from the NCP and Jamaat-e-Islam, but also from the BNP -- are engaged in a form of shadow boxing over approving reforms and having them implemented.

But none of them appear to have spoken out about what it takes to operationalize reforms.

None of these players are blind or fools. They must all know that no reforms are likely to be implemented to a stage where they begin to reform something in the four months available to the Interim Government. Meaningful reforms can only be implemented during the tenure of an elected government likely to be in office for five years.

If we believed that only Yunus can be relied upon to implement reforms then he must re-set course, declare that he will exercise absolute power to rule Bangladesh for the next 5 years, empowered either by a public referendum or in alliance with the armed forces or possibly by both.

As it stands Yunus and the IG have committed themselves to convene national elections within February 2026 and to hand over power to an elected government.

Yunus and his government appear to have detached themselves from furthering the reform process but have committed themselves to enacting whatever reforms are presented before them by the CC and to implement these in any way advised by the CC.

For reasons best known to Dr Yunus himself, he has chosen to play no role or no publicly declared role in spelling out the reforms the IG intends to prioritize and which it will try to implement.

The Law Advisor, who should presumably be advising the Chief Advisor of the legal implications of initiating and implementing particular reforms, also appears to have kept his official views to himself.

The end result of this major initiative for carrying out reforms needed to construct a boishomo-free society will be to build up expectations -- in a nation which has from its birth been nurtured on frustrated expectations -- which do not lie within the power of the IG to fulfil.

In practice a shadow play is being enacted before us. Political postures are being assumed by particular political parties, backed by more incendiary threats of even frustrating or boycotting the elections.

All the concerned players know full well that such reforms can only be enacted on paper and will have little relevance to the conduct of an election which is committed to be held in the next four months.

In such circumstances the universal question on the lips of all Bangladeshis and indeed our foreign friends is whether the major parties want early elections to be held on schedule or whether elections will at all be held.

The concerns over the elections appear to originate in the ongoing dialectic concerning the reform agenda and its implementation. It is therefore important for Prof. Yunus to clearly spell out some of the ground realities related to the reform process. The implementation issues related to the reforms that have been laid out in the July Declaration can be located in three categories:

1. Reforms which can be declared by the IG through executive order. This applies to those reforms which have at least been consensually agreed to by all the parties who sat with the CC. It is not clear what is to be done with reforms in this area where only qualified agreement was reached.

2. Reforms which require legislative actions. Such reforms are usually enacted by an elected government. However the IG may choose to enact these reforms through ordinances which will then have to be ratified by an elected government. Such an initiative will publicly proclaim the reformist intentions of the IG and will place the political onus on the elected government to ratify, modify, or disown the ordinances bequeathed to them by the IG.

3. Those reforms which require constitutional change, as for example:

•  Introduction of a Second Chamber or Upper House into the legislative process.
• Election to the Jatiyo Sangshad to be held on the basis of proportional representation (PR) in contrast to the prevailing traditional system of direct elections for representatives in the 300 constituencies of Bangladesh.

These constitutional reforms can only be enacted by an elected parliament. It has now been proposed by the CC, with support from some political parties, that such reforms can also be enacted through a national referendum.

Implementing the Reforms

Reforms through executive orders: Initiating reforms through executives orders are not likely to be as easy a process as it may appear to the uninitiated. We have only to witness the fate of the IG’s executive order to bifurcate the NBR.

All executive order will need to be discussed with the bureaucracy who will have to both prepare and implement the reforms and with stakeholders who may be impacted by the reform.  The Law Ministry will also need to be consulted on the legal implications of the reform.

Following such a consultative process each reform proposal will have to be drafted in a form where it can be implemented by designated agencies of the government without being exposed to legal challenge or challenge by affected citizens.

It is not clear how many such executive orders can be prepared, approved by the IG, and operationalized within the next four months. 

This suggests that operationalizing of most of these executively enacted reforms will have to be carried forward by the next elected government who will, in most cases, need to go through the tortuous process indicated above and then take executive action for implementation of the reforms.

Constitutional reforms: Neither Yunus as Chief Advisor or the IG has any power to amend the constitution which remains within the exclusive domain of an elected government. Various exercises designed to circumvent the constitution have been publicly presented by a CC which was under pressure from some of the political parties to bypass the constraints imposed by the constitution.

The propositions presented by the CC include:

• Special orders enacted by the IG
• A referendum on the full reform agenda to be held prior to or concurrent with the elections.

The legislative route: Apart from the constitutional reforms, a number of reforms will need to be enacted through ordinances which will need to be ratified by an elected legislature. The IG has no authority to enact such laws.

The CC sought to bypass this constraint on the IG’s authority through empowering the IG to impose a finite (269 days) limit on the elected legislature within which the law will have to be enacted, otherwise the ordinance will automatically become law.

I am not qualified to comment on the wisdom of the CCs sleight of hand which has been guided by some friendly constitutional experts rather than Yunus or the IG. It may be advisable, since the credibility of Yunus and the IG are involved, for the CC to publicly spell out the names and legal credentials of the experts consulted by them, since the fate of a nation may hang on their advice.

Any move by an unelected IG to impose a mandate on an elected legislature that a law must be enacted within a time limit or it will be deemed as a law, may be regarded by freely elected MPs as a gross impertinence.

Whatever may be the merits of ‘expert’ advise which imposes constraints on elected MPs, as night follows day, any attempt to bypass the constitution will be exposed to legal challenge in our courts of law, not just by particular parties and MPs but by any citizen.

Such challenges will apply also to the provision of holding a referendum where voters will be asked to vote ‘yes’ or ‘no’ in the name of the July Declaration to an 82 point agenda of reform which includes a variety of amendments to the constitution.

Such a reforms process, will not just be exposed to judicial but also political challenge. The 300 members elected to the Jatiyo Sangshad, hopefully, with a high voter turnout, are unlikely to accept that their legislative authority will be constrained by a referendum which commands questionable legitimacy. Such a referendum is being presented to the electorate under manifestly unfair terms of reference where a highly complex, politically far reaching, set of issues are all expected to be answered by a largely uninformed electorate, on a ‘yes’ or ‘no’ basis.

Where Do We Go From Here?

Reaching out to the excluded: There is little debate among most Bangladeshis, politician, civil society or general public, that reforms are indeed needed to ensure that abuse of democracy and the degeneration of governance will not be perpetuated by future governments.

The IG's move to assemble capable indigenous talent through various Commissions/Task Forces, to spell out our inherited problems and suggest appropriate reforms, is to be commended. 

So is the move to bring together a selection of political parties in order to build a consensus around at least some if not all reforms. Such reforms need careful thought and much public debate before they are put in place.

Bangladesh’s  history is replete with ill-conceived and designed reforms which were never implemented either due to their non-consensual preparation, lack of sincerity and/or incompetence in their implementation.

However, the exclusion, for whatever reasons, of major political players representing possibly close to 40% of the electorate, from the consultation process has exposed the prospective elected government to both legal and political challenge over the reforms as well as the reform process.

Furthermore, the CC which was empowered by Yunus to build a consensus for reforms has excluded civil society from its final consultation process. Many of the parties involved in the consultation have never had any representative status in their history.

To spend long hours in consultation with them while bypassing the key players from civil society representing millions of stakeholders, remains somewhat dysfunctional to the mission of the IG. 

Furthermore, the significant under-representation of women, minorities and their specific concerns from the consultation process of the CC leave us with a sizeable dissatisfied constituency.

Finally, the exclusion of the IG and Yunus from the political dialogues to build consensus and the complete lack of direction or indication of prioritization in the advancement of particular reforms, raise questions over the actual parentage of the reforms.

Sustaining reforms: It was important for Yunus, both directly and through the CC, to spell out to the political parties and the nation the limited latitude available to an IG, in office for 18 months, to carry out reforms.

I know of few examples in contemporary history where major reforms could be carried out within such a narrow window of opportunity.

Substantive reforms are carried out not by revolution, which is a process, but by revolutionary regimes of various ideological persuasions, who intend to and actually retain the political capacity to remain in power for undefined tenures.

Other forms of seizure of power, mostly by military regimes or even by aspirant despots, which also expect to stay in power for sometime, occasionally carry out far reaching reforms, not always in the best interest of the people.

In both Pakistan and Bangladesh we have been witness to such a reform process, as also in many countries around the world whether it be General Pinochet in Chile or General Park Chung Hee in South Korea or President Suharto in Indonesia.

The more consensual and possibly more sustainable route to reform is usually traversed by an elected government which commands both legitimacy and a sufficient tenure in office to implement reforms.

What is common to all such reforms whether by an autocrat or democrat, is that they need to stay in office for a sufficient time to conceive, design, enact and most important, implement their reforms.

As I have observed at the outset, a reform can only qualify as a reform when it is implemented. However we need to remind ourselves that reforms even when they are being implemented, do not always end up in reforming what needs to be reformed.

If the next Jatiya Sangshad legislates an Upper House into existence, the worth of such a reform or our particular version of it, will not be determind by 100 noble citizens arriving at the Upper Chamber in new SUVs to engage in a talkfest of no consequence to the legislative process.

The proposed reform is intended to impose restraint and reflection on the hithertoo unencumbered legislative action of a ruling party.

In most functioning democratic parliaments such restraints on arbitrary actions of a government are traditionally exercised by a strong and responsible parliament. An upper house is no substitute for a weak opposition within a dysfunctional parliament. The effectiveness of an upper house in the legislative system will thus only be validated by the functioning of the Jatiyo Sangshad as it was intended to function under our constitution.

The virtues of an Upper House will itself establish its relevance over a period of time by proving its worth to the democratic system rather than serving as an instrument of political patronage available to an all powerful party leader.

Since Bangladeshis have never seen an Upper House in action we will have to reserve judgement on the efficacy of such a reform in practice.

Monitoring reforms: The above discussion should not be perceived as a recipe for inaction by the Yunus government. What they may have done is to spell out the reform options before the nation. They should thus treat the consultations with political parties as an exercise in political education.

They can use the remaining days in office to use the voice available to a government, particularly one led by a Nobel Laureate, to educate the public on what reforms are urgently needed and to encourage them to remain vocal in demanding that these reforms be incorporated in the manifestos of the parties contesting elections and eventually be implemented by the party elected to office.

To amplify and sustain the demand for reforms, dedicated and empowered civil society institutions should be encouraged to serve as watchdogs over the reform commitments of the elected government and to take them to task where it is called for.

The political opposition should in turn be encouraged to reach out to their electorate, party base and civil society to support them in the discharge of their parliamentary responsibilities for pushing the reform forward.

The legacy of the Yunus regime could have been that of empowered citizens standing behind responsible and proactive political parties collectively engaged in overseeing the implementation of necessary reforms.

In contrast, what we witness is a bewildered and inert civil society bearing witness to a gaggle of quarrelsome political parties, arguing over hypothetical issues, who appear to be endangering our move to resume our democratic journey.