‘I don’t think I am that stupid to take the idea of a national government seriously’

October 10, 2008

Dr Shahdeen Malik, Dean of Law at BRAC University and a legal and political analyst talks to Tahmina Shafique about the future of corruption drives, Hasina-Khaleda talks and the upcoming elections

New Age Photo

It’s been about a year since the anti-corruption drive kicked off in Bangladesh – till date the government has arrested scores of politicians -including two former premiers and dozens of ex-ministers and lawmakers. It was said that the aim was to clean up graft-ridden politics in Bangladesh. Following various turns in the recent events and release of several politicians, how do you see the future of this drive and the Anti-Corruption Commission itself (ACC)?

In short, the future is bleak, if we end up electing corrupt politicians again. However, if reasonably decent politicians can be elected or re-elected, the present anti corruption drive may not lose its momentum. Secondly, our expectation from the anti-corruption drive was probably unrealistic- prior to 2007 we had our main anti-corruption law (prevention of anti-corruption 1947) in the books for the past 60 years. But in the past 60 years, there has not even been 60 successful prosecutions of high profile corrupt persons.

Anti-corruption establishment – the bureau of past anti corruption drive, and present – hardly had sufficient or even reasonable expertise, skills or experience in nailing corrupt persons. The present anti-corruption establishment inherited a large numbers of officials from the past tenure.

The past bureau has been in one word, dysfunctional. The present commission does not have even a single full-time trained prosecutor or lawyer. It has very few investigators with expertise in anti-corruption investigations as such. Given this institutional background, it is not surprising that they have not succeeded tremendously. It is due to these reasons that I am not terribly disappointed. These institutional flaws can be corrected without much difficulty, but one has to recognise these weaknesses and take appropriate steps.

Do you feel that any steps are being taken for these institutional flaws to be corrected, especially after the $150m loan for a good-governance programme granted by ADB – a major portion of which is targeted to go towards the Anti-Corruption Commission?

I am not aware of any form of comprehensive actions or interventions that are being addressed as of yet.

There has been much anticipation over the two top leaders – Sheikh Hasina and Khaleda Zia’s meeting for the first time after almost a year, in the coming days. What are your views?

I do not expect much from this meeting, honestly. Though the meeting has hit the headlines constantly, one or two discussions among these top leaders will not resolve any of the major problems that the country is facing today. I do not think they have any magic lanterns to do so. Since my expectations are too few, I am honestly not much bothered about this meeting.

What are your views concerning the upcoming elections? What do you think this election will bring about?

Logically, the only aspect I can think of is that we would be coming to a formal understanding – meaning this is an umbrella to the legality or validity to the actions undertaken by the present government.

Clearly, there will be constitutional issues to the legality of the caretaker government being in place for a period of more than two years. It is for us to see if the two leaders will validate all the deeds of the present government in the next few weeks and that will probably give a clearer picture for the upcoming elections.

You mentioned the legality of the present government taking over for a period of more than two years. How will this be treated ahead of a ‘credible national election’?

This issue cannot be considered as void. Earlier I had fewer doubts concerning the constitutional validity and continuity of the present government, but increasingly I am becoming doubtful. I feel, some kind of indemnity will be required or at least this will be too important an issue, for the parliament not to consider.

With the elections set to take place after two years, how do you see the idea of a national government in Bangladesh?

I do not think I am that stupid to take that seriously.

It’s been almost a year since the separation of the judiciary. It was assumed that this will result into a well co-ordinated justice system for the country? How do you evaluate its performance?

The public perception, as I understand is that the judiciary is subservient to the government than it was in the recent past. Clearly, so far, I do not think there has been much of a positive outcome or impact of this separation seeking justice in the court of law. Institutional and infrastructural support necessary to the truly separate judiciary is yet to be provided. More disturbingly, there has not been any form of visible effort at enhancing the administrative and managerial capabilities of the judiciary to enable it to administer independently.

A number of dialogues and discussions are coming up for the political parties, how do you see the future of the political parties in Bangladesh?

The purpose of a parliament is to provide a platform for the political parties to oppose. In other words, by definition, a parliament is a place for dialogue between political parties. I do not see why these discussions and meetings need to take place elsewhere. The issue of these meetings have arisen, however, due to the fact that these political parties have not been engaged in the parliament. An alternate to this problem should be to engage them in meaningful dialogues in the parliament.

You have worked extensively in the field of juvenile justice and how do you see the state of the justice system for juvenile at present?

The state has clearly improved to a certain extent. Now if there is any news of arrest regarding children below 16, automatically it creates a stir among the relevant stakeholders. In many instances, judges of the High Court division have taken up their own initiatives.

Secondly, the average number of children detained in jail has gone down significantly – figures show a substantial fall. In major cities across the country at least, police has become aware of juvenile rights. In addition to this, the Department of Social Welfare has started to take appropriate steps – some probationary officers have been appointed. All of these indicate that the juvenile justice system is actually moving ahead. Having said that, there is a need for provisions in the Children Act 1947.

State responsibilities regarding protection and children in distress is hardly being implemented. The State has only taken into account immunization and provision of primary education, to some extent, as a major responsibility while there are many areas that need to be addressed. Children clearly remain marginalised from the standpoint of state responsibilities’ and this certainly calls for desperate change.

There have been various comments made concerning the legality of policies and establishment of commissions during the state of emergency. Is there truly a legal question to such steps taken by the interim government?

I do not really take into account of comments of legality made by Tom, Dick and Harry.

The right to information act was drafted in 2002 and has been under various criticism and debate. According to reports, the act is soon to be finalised and implemented, how do you evaluate the existing draft and also the result of finalisation?

The Right to Information Act has become a sexy topic, at the moment. But, in very short, the state does not possess the system, infrastructure, expertise or capacity to be able to pull of this act. There are bridges that need to be passed before such a system can actually be effective.


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