In Muslim nations that go to the ballot box, such as Indonesia, Malaysia and Bangladesh, extremist political parties get crushed by voters. Those extremists are not able to earn more than a few percent of the vote. Most people want good government, the electricity to work, the trains to run on time, low crime and so forth. The people are wise, and with a proper outlet to let that wisdom flow to government, superior outcomes prevail. Voters choose secular political parties over religious ones, and moderate parties over extremists.

Saudi Arabia and Iran are the two best examples of failed states which breed extremist views. Both use the state to advocate an intolerant religious monoculture that is the basis for their authority. To reject the state, dissenters also reject the monoculture by choosing extremism. Lately Australia is establishing the "National Security State" and expanding the "Shadow State". In addition the Australian conservative commenteriat are seeking to establish a monoculture. These place us closer to the conditions that make Saudi Arabia such a problem. Only the principles of Australian Republicanism can save us now.

Got Secularism?

Much attention has been focused on Muslims as the perpetrators of terrorism. This assumes that Muslims are a homogeneous group, dominated by violent fundamental beliefs. This is incorrect, and a lazy stereotype. It is only on the fringes of Islam that there is a conflict with modernism, but this is not unique to Islam, witness the Christian reaction to stem cell research in the United States . Democratic nations such as Indonesia, Bangladesh and Malaysia have overwhelmingly adopted secular governments when given the power to vote.

Indonesia contains the world's largest Muslim population in a nation-state. Nearly eighty percent of its 220 million population identify themselves as Muslim. In the 2004 Indonesian elections the Islamic party, Partai Persatuan Pembangunan (PPP), was only able to gain 8% of the vote in Parliament and 3.1% in the Presidential race. In both cases losing out in majorities to secular candidates and parties. The Islamic Partai Kebangkitan Bangsa (PKB) managed 10% of the parliamentary vote.

Bangladesh has a population of 144 million. Approximately eighty three percent of the population view themselves as Muslim, with Hindu being the next largest religion. In the 2001 elections , the Islamic political parties were not able to gain a majority, with the conservative Bangladesh Jatiyabadi Dal and social-democratic Bangladesh Awami League earning 87% of the vote combined.

Malaysia has a population of 23 million with approximately sixty three percent In the Dewan Rekyat (House of Representatives) election of 2004 the main secular party, Pertubuhan Kebangsaan Melayu Bersatu, collected 64% of the vote. The Islamic Party, Parti Islam se Malaysia, managed 15% and the democratic party, Parti Tindakan Demokratik, got 9%.

As the election results in Indonesia, Bangladesh and Malaysia show, the people are wise and choose secular government over religious government. The will of the people is translating to the form of government in these democracies. The major problem is many nations that mix religion and state, such as Saudi Arabia and Iran is that they are either monarchies, autocracies or non-functioning democracies where voters are given no choice other than the existing ruling party.

Salafism and Saudi Arabia

Salafism or Wahabism is an Islamic movement traces its origins with the theologian, Muhammad bin Abdul Wahhab in the 16thC. Salafism seeks to purify Islam by returning Muslims to the original principles of Islam. Salafism seeks to remove innovations in religious practice and idolatry (polytheism). Muhammad bin Saud established the House of Saud, which today rules over Saudi Arabia. Saud married bin Abdul's daughter, and combined his rule with Salafism to establish wider legitimacy for the Sauds. Salafism was not a widely popular religious movement in Islam until it was propagated by the House of Saud, especially in the latter half of the 20thC with Saudi Arabia's immense oil wealth.

The 1970s saw a different dynamic enter the Middle East, many of the secular regimes, such as Egypt, Syria and Iraq failed in their promise, and became single party states designed to maintain the power of the present leaders. The autocratic governments also stifled all dissent. Opposition was either forced out of the country, driven underground into silence, or into violent extremism. Iran took the third path and a Shia theocracy came to power through revolution. Iran used the wealth and power of the state to expand the influence of their religious doctrine through the Middle East.

Salafism is based on Sunni beliefs. The Shia and Sunni denomination's of Islam are the two largest and represent a sectarian split based on who the successor was to the Prophet Muhammad. In the 1980, Saudi Arabia used the wealth of the state to expand Salafist teachings. From the 911 Commission ;

In the 1980s, awash in sudden oil wealth, Saudi Arabia competed with Shia Iran to promote its Sunni fundamentalist interpretation of Islam, Wahhabism. The Saudi government, always conscious of its duties as the custodian of Islam's holiest places, joined with wealthy Arabs from the Kingdom and other states bordering the Persian Gulf in donating money to build mosques and religious schools that could preach and teach their interpretation of Islamic doctrine.

The 1980s saw the expansion of madrassa . These are Islamic schools, most of which teach a non-violent purist Islamic tradition. A significant number, however, act as recruiting agents for violent extremism. Many of the worst madrassa were in Pakistan where mujahideen where trained for the Afghan war against the Soviets.

It is obvious that the rise of violent extremism arises from several sources. These are;

• State sponsorship
• Governments which derive their legitimacy and authority from religion
• Non-democratic regimes that do not tolerate dissent

It should be noted that the first issue, state sponsorship of violent extremism is not limited to Saudi Arabia, Iran and Afghanistan. During the Afghan war the United States funded and trained many mujahideen's in Pakistan. This is a classic example of "Blowback" .

Violent Extremism and Saudi Arabia

Osama Bin Laden was a Saudi national until Saudi Arabia revoked his citizenship. He came from the wealthy and large bin Laden family which has also disowned him due to his involvement in Al Qaeda and terrorism. Al Qaeda came from the mujahideen operations in Soviet invaded Afghanistan. Bin Laden established the ideologically driven group to create conflict between Islam and the West. Al Qaeda used terrorism for this purpose.

Bin Laden set up terrorist training camps in Afghanistan where it was believed that in the mid-1990s, seventy percent of recruits in the camps were from Saudi Arabia. This may have been related to Bin Laden's offer of mujahideen to protect Saudi Arabia being rejected in 1991 and Bin Laden soon after issuing a self-styled fatwa condemning the House of Saud and demanding Muslims drive American forces out of Saudi Arabia. The high number of Saudi nationals being involved in Al Queda translated into the September 11th attacks with fifteen of the nineteen hijackers being Said Arabian.

The recent Brookings Institute Iraq Index publication has another interesting statistic. Of foreign insurgents killed in Iraq, Saudi Arabians account for sixty eight percent with ninety-four having been killed.

It is estimated that the Iraqi insurgents number approximately 20,000. Of these around 1,000 of them are foreign fighters. In comparison to other nations, Saudi Arabia is over-represented when it comes to violent extremism.

Secular Liberalism

The Saudi Arabian example shows the secular liberalism is not the problem, it is state supported religion and autocratic secularism that is the cause of disruption and disturbance in the world. Saudi Arabia is one of the more extreme samples. Disaffected Saudi's are unable to change the state through voting, their monarchy being totally opposed to any form of popular merit. The Saudi schools teach a non-tolerant form of Salafism, and that is exported by Saudi money to madrassa internationally.

Since the state and Salafism are entwined, those that reject the state must also reject the Saudi form of Sunnism, and often do so by embracing a more radical, extreme and violent interpretation of Salafism. This added to the problem of sixty percent of the Middle East being under the age of twenty-four leads to a massive problem that is having global repercussions.

Once again Indonesia is the great modern hope, through the people voting their will, Indonesia has established a secular democracy that is embracing secular liberal and liberal democratic traditions. It is important to note, that it was the wisdom of the people that led Indonesia to the position. In 1999 the Indonesia people overthrew the Suharto dictatorship through a popular uprising, and then voted in secular, rather than religious parties.

Indonesia wanted good government, and gave themselves the environment to avoid the problems that Saudi Arabia, Iran and other parts of the Middle East face. When Indonesia was wracked by terrorism, it was quickly squashed through civil trials that were conducted openly and publicly. Terrorism was quickly deemed criminal and not tolerated by the justice system. But rather than military trials which are done privately and in secret, the civil judicial system has popular legitimacy and the involvement of jurors. It is far more legitimate than any military tribunal.

The Anti-Reformation

Labor and Liberalism won in the 20thC. The major parties in Australia are social-democratic. Both left and right continue to expand the state and social services. Under the supposedly conservative Liberal government in Australia the percent of GDP collected by the government in tax has increased from twenty-six percent to nearly thirty-five. Liberalism also won. Multi-culturalism, which is a logical outcome of maximum liberty was accepted, as was economic liberty through economic rationalism.

After September 11th, the United States decided to pursue terrorism as a military problem. The United Kingdom and Australia were quick to follow. All three nations realigned their domestic focus to what appears to a permanent "National Security State". No longer are cities, or nations defined by their society, their culture, their economy or their liberty; they are now defined by how secure they are. Advocates of the National Security State go as far to claim that a city or nation that is insecure is a failed one.

Australia, the United States and the United Kingdom have expanded the private space of government by giving new powers to the "shadow state". A Republic comes from the Latin term publis . This means that government occupies the public space, not the private space of the despot, the tyrant or the autocrat. Western nations have used terrorism and the "National Security State" to collapse the public actions of government and hide them from public view.

In the United States, the Transport Security Agency has laws that the public must follow, but cannot read. Laws are now becoming secret . This makes them impossible to follow. The PATRIOT Act allows the FBI and other law enforcement agencies to act without civil oversight, or the knowledge of the suspect. The Act also enables the mixing of domestic and foreign intelligence; a result of the United States deciding on a military solution to terrorism.

Attacking Speech and Liberty

The United States has not acted to outlaw free speech, but the United Kingdom which has recently faced home-grown terrorism, now is. Foreigners that engage in hateful speech can be deported. From a BBC article ;

New grounds for deporting and excluding people from the UK - including fostering hatred or, advocating and justifying violence to further beliefs. The powers will cover statements already on record. Consultation on the plans will finish this month.

Implied in many of the measures is that multi-culturalism has failed, and that the "National Security State" must be a unitary nation-state with one culture, one central government; and one purpose - security. Australian commentators have lead the attack on multi-culturalism, seeing secular liberalism as the feeding and breeding ground for terrorism. This rabid rhetoric is used as an excuse to establish the unitary "National Security State", Devine writes ;

Kowtowing to the unreasonable demands of intolerant minorities trying to impose their will on the majority is not going to safeguard Australia from "fanatical religious hate, exclusion, death and terror", as Parker seems to think. Quite the opposite.

Concepts of tolerance, freedom and loving one's neighbour as oneself don't exist in a vacuum, any more than "ethics" exist without a moral framework.

Trying to erase the long-established culture of Australia, permanently rooted as it is in the Judeo-Christian tradition, and replacing it with vapid, secularist nothingness is not going to help. It simply creates a vacuum for radical Islam to rush in and fill.

This is the authoritarian anti-liberal nonsense at its absolute worst. Devine's advocacy for one culture and one nation fail, simply because her vision of what constitutes a viable society, culture and nation cannot be achieved without government intervention. Lack of liberty is an unnatural state for a society and requires high energy and cost by the government to enforce. This is why autocracies are always doomed to failure, the more liberties that are taken, the higher the cost to the society and the more energy that is dissipated in maintain authoritarianism.

In the United States, the devoutly Christian Senator, Rick Santorum, was on radio recently discussing his book . Santorum rails against the Libertarian wing of the American Republican party. Like Devine he claims the Judeo-Christian tradition is the only way the United States can remain a viable society and culture. This requires government policy to follow religious doctrine. Like Devine, Santorum fails it, their vision of society is not possible without government's monopoly on violence and coercion to prop it up and sustain it.

Conclusion

Terrorism has been a foreign policy issue for Australia, with Indonesia taking the hits for us. We are fortunate we have such a wise and effective nation as Indonesia as our neighbour. Given the current environment of hysteria from the government and media, I would not be surprised if we bungled the prosecution of a terrorist attack. Creating political outcomes where only the justice inherent in our civil system was necessary.

The more civil liberties that are removed, the harder the state attempts to enforce monoculturalism, the greater the expansion of government into the private space of the "shadow state"; all place us closer to components that make failed states such as Saudi Arabia and Iran such hotbeds for extremist ideology.

The answer to terrorism in Australia is the secular liberalism of Australian Republicanism. Maximum liberty, tempered by individual rights and bound by inclusive and responsive minimal government is the best means to defeat terrorism and the environment that breeds and amplifies it.

cam

One of the more interesting contitutional innovations of recent times is the Bangladeshi Non-party caretaker government. This is covered in chapter IIA of the Bangladesh Constitution.

Bangladesh is a parliamentary system with a largely ceremonial President who is appointed by the Parliament. The Executive is embedded is the Legislative, similar to the Australian Westminster style systems.

In Australia the caretaker convention is that the Government does not do anything odd, unusual, or out of the ordinary during an election period in relation to governance. In most of these convention instances they remain valid only as long as someone doesn't break them.

For instance the convention prior to 1975 in Australian Federal parliament was that the States would appoint a Senator of the same party as an outgoing one. This did not happen twice in the run up to the Dismissal and soon after a constitutional amendment came down forcing this behaviour.

Presumably, a Bangladeshi government did not honour the caretaker convention, and the Bangladeshis, unwilling to trust any party machine with the caretaker convention, took over the running of government themselves during this period.

The Non-party Caretaker Government is headed by a Chief Advisor who adopts the role of Prime Minister and advises the President as head of the Executive. The Chief Advisor and up to ten other non-party advisors comprise a citizens executive cabinet and are appointed by the President.

The Chief Advisor is the last retired Chief Justice. The other advisors cannot be members of parliament, cannot be running for election, cannot be members of a party and must be under seventy-two years of age. This mixes community specialists with a judicial specialist.

The constitution grants the Chief Advisor and Advisors the remuneration and status of the Prime Minister and Ministers respectively during this period.

Like the caretaker conventions in Australia which implies no policy decisions will be made by an interim government, the Bangladesh constitution entrenches this requirement and the Non-party Caretaker Government is excluded from making policy.

From the Constitution;

58B. Non-Party Care-taker Government

(1) There shall be a Non-Party Care-taker Government during the period from the date on which the Chief Adviser of such government enters upon office after Parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of Parliament.
(2) The Non-Party Care-taker Government shall be collectively responsible to the President.
(3) The executive power of the Republic shall, during the period mentioned in clause (1), be exercised, subject to the provisions of article 58D(1), in accordance with this Constitution, by or on the authority of the Chief Adviser and shall be exercised by him in accordance with the advice of the Non-Party Care-taker Government.
(4) The provisions of article 55(4), (5) and (6) shall (with the necessary adaptations) apply to similar matters during the period mentioned in clause (1).

58C. Composition of the Non-Party Care-taker Government, appointment of Advisers, etc.

(1) Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisors, all of whom shall be appointed by the President.
(2) The Chief Adviser and other Advisers shall be appointed within fifteen days after Parliament is dissolved or stands dissolved, and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his cabinet who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such.
(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.

(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.
(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.
(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.
(7) The President shall appoint Advisers from among the persons who are-
1. qualified for election as members of parliament;
2. not members of any political party or of any organisation associated with or affiliated to any political party;
3. not, and have agreed in writing not to be, candidates for the ensuing election of members of parliament;
4. not over seventy-two years of age.

(8) The Advisers shall be appointed by the President on the advice of the Chief Adviser.
(9) The Chief Adviser or an Adviser may resign his office by writing under his hand addressed to the President.
(10) The Chief Adviser or an Adviser shall cease to be Chief Adviser or Adviser if he is disqualified to be appointed as such under this article.
(11) The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister and an Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister.
(12) The Non-Party Care-taker Government shall stand dissolved on the date on which the prime Minister enters upon his office after the constitution of new parliament.

58D. Functions of Non-Party Care-taker Government

(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.
(2) The Non-Party Care-taker Government shall give to the Election Commission all possible aid and assistance that may be required for bolding the general election of members of parliament peacefully, fairly and impartially.

58E. Certain provisions of the Constitution to remain ineffective

Notwithstanding anything contained in articles 48(3), 141A(1) and 141C(1) of the Constitution, during the period the Non-Party Care-taker government is functioning, provisions in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter-signature shall be ineffective.

From ABC News ; "Bangladeshi President Iajuddin Ahmed has been sworn in as the head of the interim administration that will oversee national elections in January, in a ceremony broadcast live on television" . As we discussed last week , the Bangladeshi Constitution covers the appointment process for the Chief Adviser position in the care-taker government.

The constitutional requirement for the position of Chief Advisor is in Section 58C(3) of the Bangladeshi Constitution ;

(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:

Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.

(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:

Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.

(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.

(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.

For the President to take the Chief Advisor position it would require no judge, or no citizen of Bangladesh with suitable qualifications wanting to do it.

Drishtipat, an expat Bangladeshi site has comments on the issue as does Nazim Farhan Choudhury ;

So the President can be the head of the CTG. BUT and this is a big but, he can only do so if "provisions of clauses (3), (4) and (5) cannot be given effect to".

Clause (3) talks of all the Chief Justices. Clause (4) talks of all the Judges of the Appelate Court. Clause (5) talks of a consensus candidate.

So without asking the next in line (ie Mahmudul Amin Choudhury) and those after him, the President cannot jump to Clauses (5) or (6).

The horse has bolted, but I bet the Constitution writers are now wishing they could repeal 58C(6) and make the Chief Adviser position go right through Bangladesh's provincial and local courts for suitable candidates first.

Nazim has a comment on Drishtipat with the points in Iajuddin's acceptance(?) or self-appointment speech;

1. I am addressing you at a grave time.
2. You know a caretaker government is to be announced.
3. As per constitution, KM Hassan refused. Monirul Reza Choudhury is dead.
4. Appealate division's MA Aziz is unqualified as he is CEC.
5. Hamidul Haque refused if there is not consensus between all party.
6. According to Article 58 (5) I had discussions with all parties to find a compromise candidate. While I earnestly hoped that all party will be able to agree to a person. Unfortunately this has not happened.
7. Hence I have to take over as the Chief Caretaker.
8. Law and order has broken down over the last few days and therefore there was no alternative than for me to take over as CTG head.
9. Whatever needs to be done to protect our rigths must be done.
10 I hope everyone including all parties will support me.
11. I am seeking advice of all parties to help me nominate 10 advisers who will help in putting together the Army.
12. I hope there is be peace and within the stipulated time we can hold electons.
13. Allah Hafez and Bangladesh Zindabad.

It should also be noted that the Bangladeshi Constitution excludes the Caretaker Government [CTG] from making policy. From 58D(1);

(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.

The Bangladeshi President is a ceremonial role, the fear is that with the President becoming the Chief Adviser to the caretaker government, the President's role will go from ceremonial to controlling executive and legislative functions. Section 58D(1) is supposed to stop this, but given the President's willingness to place themselves in this position of greater power it does not bode well for Bangladesh.

This also acts as a warning for Constitution writers, never leave a clause in which can give one person control of more than one branch of government - ceremonial or not. I have my fingers crossed for the Bangladeshis; liberal democracy has managed to survive past violence and destructive politics there, hopefully this is nothing more than a bump.

cam

In an article titled The constitutional process, Dr Ahmed Ziauddin writes that the Bangladeshi President broke the constitutionally enforced sequence to appoint himself as Chief Advisor to the Caretaker Government. In essence he acted unconstitutionally and should resign.

From the article;

Here, the constitution leaves no choice for the president but to act exactly in this prescribed order. The use of the word "shall" limits the president's power and obliges him to act without fail.

Moreover, the use of plural to denote "retired Chief Justices" and "retired Judges" means that the drafters of the constitution assumed that there could be more than one retired chief justices and judges. This is reinforced by the use of the expression: "If no retired Chief Justice is available" and "If no retired Judge of the Appellate Division is available" in Article 58C (4) and Article 58C (5) respectively, which suggests that option 1 and 2 are only completed when there is not a single chief justice available or willing to act as chief advisor, so also for the retired judges of the Appellate Division.

This also is common sense interpretation. The drafters of the constitution could not have chosen a retired judge of the Appellate Division while still a retired chief justice was around and willing. Equally, where a retired Appellate Division judge was available, the constitution could not have opted for to search a chief advisor from amongst citizens of Bangladesh.

The idea was rather simple; first exhaust searching retired chief justices, then the retired Appellate Division judges, then from among the citizens of Bangladesh, and only then, if all efforts failed, the president would assume the responsibility.

and;

If sequences of these constitutional mandates are checked with time lines of facts and happenings on the ground, it will be found how the president jumped the queue.

On Friday evening, October 27, the president's office announced postponement of Saturday's (October 28) oath taking of Justice KM Hasan as chief advisor, as he was "indisposed," while immediately, reports appeared in the media quoting persons meeting Judge Hasan around the time, him being in good health, which was confirmed in Judge Hasan's own statement a day later, explaining his inability to accept the position of the chief advisor, where there was no reference of his reported indisposition. That was the first knock to the president's credibility.

In any event, when Judge Hasan declined, the president had no choice but to appoint the remaining retired chief justice Mr Mahmudul Amin Chowdhury. According to news reports, BNP then offered to the president different interpretation to Article 58 C (3) and (4) the constitution against appointing Judge Chowdhury suggesting, that search for retired chief justice stops at two retied chief justices.

Although this is a non-starter argument, because logically a retired Appellate Division judge could not get preference over a retired chief justice, but nonetheless, this was a serious question of interpretation of the constitution which never arose before.

In such a situation, the president had two options; he could have invited eminent legal minds of the country to share their views with him, or, most constitutionally, he should have followed Article 107 of the constitution.

107 is similar to the Governor-General as rights referee which has been discussed here and enables the Governor-General to turn legislation over to the High Court to be checked for constitutionality before it is passed into legislation. The Bangladeshi Constitution has this style of check and balance in their ceremonial President - Parliamentary system;

Article 107: Advisory jurisdiction of Supreme Court

If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.

So what we have here is a renegade President, acting unconstitutionally, and trying to do an end-run around the constitution and Bangladeshi liberal democracy. That is criminal.

Ziaddun warns;

The nation was left guessing, and the president assumed the position of the chief advisor, revealed to the nation only when he was invited to take oath as the chief advisor at the swearing in ceremony. This was an extremely non-transparent way to assume the position of a supposedly non-partisan, neutral caretaker administrator, supposed to ensure holding of a transparent general election.

On the contrary, for the last few days, the former prime minister and other alliance leaders have been telling opposition political parties and the nation that the president's decision will be final and all must abide by that, which suggests that this was a pre-scripted event, where BNP-Jamaat were aware of the president's decision to assume the chief advisor position, as testified by the fact that no name of any eminent citizen was even raised or discussed under option 5. In other words, all was fixed well before the process began.

This is bound to raise serious doubts about the president's honesty of purpose, and one doesn't have to be rocket scientist to guess how transparent and fair the upcoming election would be.

Not good. Bangladesh is facing a usurper of the constitution, backed by the legislative and formal executive in parliament through what appears to be a party-machine, and seemingly no means for the people to sue for the constitution to be followed by the usurper as the highest law of the land.

cam

Harun Ur Rashid ask's: Is Bangladesh's non-partisan caretaker government working? His answer is no and he offers six alterations of the constitution to fix the hole the President has run through the constitution before it becomes convention. Rashid comments that constitutions are "not set in stone and already it has undergone fourteen amendments. The last amendment was adopted in May 2004. Another amendment of the Constitution will not make the sky fall.".

Rashid doesn't blame the President despite the President being worthy of scorn and censure for violating the spirit of the care-taker government, but also willingly obfuscating the steps constitutionally required. In his speech the President claimed he was forced to due to emergency. This is no different to Thailand and Fiji where the usurpers claimed they had to suspend the constitution in order to save it.

Rashid's six alterations require:

• Defence needs to come under the authority of the care-taker government (not the President)
• President is ineligible to run the care-taker government (chief adviser)
• Retired justices ineligible to be chief adviser (separation of powers)
• Constitution requires criteria to appoint a citizen to chief adviser
• Article 58C(4), "no retired chief justice is available" requires clarity.
• Explicit enumeration of responsibilities of chief adviser in council and without council.

The Bangladesh President has declared a state of emergency. This is a formal one where troops go out on the streets, curfews are enforced and presumably the civil justice system takes a hiatus and executive judicial decisions take over. The President's unconstitutional assumption of the role as chief of the care-taker government was already an example of an executive declaring a state of emergency.

Unfortunately I cannot find a transcript of the Bangladeshi President's radio address. So I cannot see what it says. Damn language barrier. The situation has deteriorated enough that the United Nations has pulled out from providing election oversight.

Bangladesh is in trouble, it has political parties in the legislative that are unable to come to agreement or compromise, it has a president who has established two emergencies now and is willing to ignore the constitution to that end. And there is street violence and disorder. It is looking like political collapse.

Update

The Bangladeshi President, Iajuddin Ahmed, has stepped down as head of the caretaker government and a former head of the central bank is now chief caretaker.

Great article on separation of powers as relating to the circumstances in Bangladesh . Huda focuses on the judiciary in Bangladesh and how it isn't able to pursue or achieve its constitutional function.

Huda quotes Montesquieu:

Baron Montesquieu (1689-1755, living in England from 1729-31) stressed the importance of the independence of the judiciary in the following manner: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ... Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man or the same body whether of the nobles or the people, were to exercise those three powers that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes."

Throughout history, there has been exhibited a tension between the doctrine of separation of powers and the need for balanced government -- an arrangement depending more on checks and balances within the system than on a formalistic separation of powers.

Huda concludes:

The ground reality, in Bangladesh, is that the judiciary possesses neither the financial resource nor the power to extract the allegiance of the other organs of the State to the constitution and the implementation of its decision in so far as it relates to the separation of the judiciary from the executive.

As such, in spite of public declarations and commitments to judicial separation from the executive branch, political groups and the administration have maintained the status quo.

Thus the intentions of our constitution have not been carried through. Therefore, although the judiciary is in the process of separation of late, the civil society and the political class of Bangladesh should relentlessly pursue the issue until the constitutional dignity and effectiveness of the supreme judiciary is fully and credibly established.

Huda is arguing that the current constitutional problems in Bangladesh are related to the lack of separation of powers between executive and judicature.

That non-party caretaker government in Bangladesh which was usurped by the President, citing emergency, has now arrested fourteen (13?) political leaders, including nine former ministers.

The caretaker conventions are that the government not conduct any policy and hand over the Cabinet once elections are held. The caretaker government is only for the temporal period that the government in power has its legitimacy in question while the country goes to the ballot boxes. Once certainty of democratic legitimacy is returned with the election result, the government elected takes over from the caretaker government.

Nothing says rule of law and civil order like a state of emergency:

The state of emergency bans political activity and gives security forces sweeping powers to detain anyone without warrants.

It appears that the politicians arrested were from the two major parties, so it may be the President making a play on removing the parliament as a house for the legislative and executive. If that is the case the Non-party caretaker clause has been used to give a ceremonial president absolute powers. It should be noted that the President did not follow the constitution in order to appoint himself Chief Advisor of the caretaker government. He used a claim of a state of emergency to do so.

The Washington Post is carrying a letter to the editor from Sheikh Mohammed Belal, a minister at the embassy in Washington DC. It contains several falsehoods.

We have covered the Bangladeshi non-party caretaker government in detail as it is a constitutional innovation that has fallen prey to the unconstitutional behaviour of the Bangladeshi President, Iajuddin Ahmed.

The letter starts:

The Jan. 25 news story "Bangladesh Military Accused of Stalling on Elections" contained broad judgments that are a trifle unfair.

What really happened leading up to Jan. 11 was that the political turmoil had reached the point that it had brought civic life to a standstill. It had devastated the socioeconomic fabric of Bangladesh. Chaos was reigning. Conditions were ripe for the country to become a breeding ground of extremism and terrorism. The world could not afford an ungovernable entity of the size of Bangladesh (145 million people), with all the negative implications.

The Jan. 11 emergency proclamation pulled the country back from the brink of disaster. The declaration was within the framework of Bangladesh's constitution. Subsequent governmental actions have been on a constitutional track. The proclamation has had overwhelming support from the armed forces, a business community battered by continuous strikes and from Bangladeshi civil society.

That is a standard state of emergency claim, only an Aristotlean 'best man' or Cincinnatus could overcome the chaos by adopting emergency powers and saving the constitution by burning it.

It should be noted that the Chief Advisor in the caretaker government is supposed to be a judge. Not the president. Ahmed skipped judges in order to make himself the Chief Advisor and then justified it by claiming it was a state of emergency, forcing him to act in this manner. I think it is fair to say he acted unconstitutionally. Since then he has appointed a former banker into the role but a state of emergency still exists across Bangladesh.

The letter continues:

It is understood that the caretaker government that assumed office after Jan. 11 has a responsibility different from others before it. Unless it can successfully undertake reforms, some of which are structural, it will not be able to create the level playing field that is a prerequisite for holding a free, fair and credible election with the participation of candidates from all major political parties.

The whole point of caretaker governments is that they do not enact policy, they have no legitimacy because an election has been called, and the government that is formed after the election - with popular backing - is the only succesor government that has the popular will and legitimacy to enact policy.

The Bangladeshi constitution is very explicit about this. Belal is arguing that this caretaker government is not a caretaker but an 'emergency government' and has full governmental powers. The constitution contains in section 58(1):

(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.

So the caretaker government is acting unconstitutionally by implementing policy, and arguably this includes operating under a legal state of emergency. Certainly, several political leaders from the two major parties were rounded up under that emergency and imprisoned.

This whole process has not been good and has smacked of Ahmed being willing to ignore the constitution, placing doubts on his political honesty as a ceremonial president, as well as the political motives of the caretaker government.

The purpose of a the non-party caretaker government was that it would take politics out of elections and stop interfering in the electoral process by political parties willing to influence the outcome by tampering or coercion. Instead it has been a method for the President to insert himself into politics, though, he had to ignore the constitution to do so.

From the SMH :

as Muhammad Yunus, last year's Nobel Peace Prize winner and the founder of a microfinance empire known as the Grameen Bank, announced he was entering the political fray as the leader of a new party. "There is no way I can stay away from politics any longer - I am determined," he said.

Interesting, given the lack of care, dignity and respect for the constitution the caretaker government has conducted itself with during the self-professed emergency.