DHAKA TRIBUNE

Long Form

Monday, December 23, 2013

The curse of the two-thirds

In South Asia, 11 out of 35 elections delivered supermajority to a ruling party, resulting in serious political instability

Ali Riaz n
olitical parties participate in elections to win, and surely they aspire to win big. Any political party would hope that the election provides a mandate to implement its agenda. The larger the scale of the victory, the better it is for the winner. In the parliamentary system of governance, usually victory means securing an absolute majority of seats in the legislature. Occasionally plurality or relative majority (that is the number of seats for the party receiving the greatest number but less than half of the seats) may be enough in getting to power. In some cases parties may have to be satisfied with sharing power but prefer to gain an absolute majority which party leaders view as the vindication of their leadership. But do parties like to have a super majority that is a two-thirds majority - in the legislature? Is supermajority helpful for democracy? Is a two-thirds majority in a parliamentary system of government a blessing for the country or a curse? As it is now evident that, if the election scheduled on January 5, 2014 is held, the Awami League-led coalition will have more than two-thirds of seats in the 10th parliament of Bangladesh, these questions warrant closer attention. This will be the third consecutive parliament in Bangladesh where a party or a coalition will have the supermajority. It is worth exploring whether the experience of Bangladesh is different from that of other countries in South Asia. Between 1971 and 2011, four South Asian countries namely Bangladesh, India, Pakistan and Sri Lanka, have held 35 parliamentary elections. All of them, except Sri Lanka after 1978, follow the Westminster style parliamentary system which is based on the First Past The Post (FPTP) system. The FPTP system allows a candidate to win when she/he secures relatively more votes than her/his opponent in a single constituency. A party can thereby secure a majority of parliamentary seats without securing the majority of popular votes. Among these 35 elections, Bangladesh had nine elections, India had eleven, Pakistan had eight and Sri Lanka had seven elections. Of these, 11 elections had delivered a supermajority to a ruling party or a coalition. Save one exception, these countries have experienced tumultuous times under the supermajority, faced serious political instability, experienced erosion of civil liberties.

Syed Zakir Hossain

Rahman was elected president by the parliament. Despite some weaknesses, the constitution, framed by the Constituent Assembly (1972) dominated by the AL in the previous year, ensured fundamental rights to the citizens. But two amendments to the constitutions, the Second and the Fourth, essentially took away these rights. The Fourth Amendment made the judiciary subservient to the executive. The AL rule came to an end through a brutal coup on August 15, 1975 leading to coups and counter-coups until the end of the year. The 1979 election, which delivered 69% of seats to the then ruling Bangladesh Nationalist Party (BNP), established under the aegis of the military government led by Ziaur Rahman, was manipulated from the outset with an objective to legitimise the actions of the military rulers after the brutal coup of August 15, 1975. The Fifth Amendment changed the nature and course of the Bangladeshi state forever. The amendment also indemnified those who killed the founder President Sheikh Mujibur Rahman and his family, and the leaders of the liberation war. The 1988 election, held under another military ruler, was boycotted by major political parties namely the AL and the BNP, and delivered 83.67% of seats to the Jatiya Party (JP) led by then military ruler HM Ershad. The legitimacy of the election is questionable, to say the least. But the ruling party went ahead with another amendment of the constitution the Eighth Amendment making Islam the state religion. Despite popular opposition and a commitment by the opposition to repeal it, it has become a permanent feature of the Bangladeshi constitution. The epitome of the supermajority in parliament by a single party was achieved in February 1996 through a sham election boycotted by all parties and with a small voter turnout. The election held under the BNP regime led by Khaleda Zia constituted a parliament with 100% BNP members,

constitutional changes under pressure from the opposition, one can hardly discount the 2001 and 2008 election results as such. The 2001 elections, one of the fairest elections held in Bangladesh, delivered 70.67% seats to the BNP-led 4-party coalition which included the Islamists. The five-year rule of the BNP regime is marked by the rise of Islamist militancy, but most importantly its

court declared Indira Gandhis election null and void and unseated her from her parliamentary membership. The court also banned her from contesting any election for an additional six years. During the nineteen months of the emergency, elections for the parliament and state governments were postponed. The INC garnered the second supermajority in 1984 largely a sympathy vote following the assassination of

It is worth noting that parliaments with a supermajority held under civilian regimes have resorted to constitutional manipulation as much as the military rulers did

effort at constitutional manipulation through the Fourteenth Amendment which increased the retirement age of the chief justice to ensure that the CTG is headed by a BNP sympathiser. The instability that it engendered led to the deferral of elections for two years, and the installation of a military-backed CTG. The 2008 election, after a two year hiatus, with more than 85% turnout, delivered an unprecedented result of 81% of seats to the ALled coalition headed by Sheikh Hasina. Within three years, the parliament amended the constitutional proviso of holding elections under a non-partisan caretaker government. The experience of all parliaments with a supermajority has been the amendment of the constitution which has influenced the quality of governance and the electoral system. It is worth noting that parliaments with a supermajority held under civilian regimes have resorted to constitutional manipulation as much as the military rulers did. In the past four decades India experienced the rule of a supermajority twice, both by the Indian National Congress (INC). The 1971 election provided the Indira Gandhi-led INC 67.95% of seats in the parliament. This supermajority enabled the ruling party to pass the 24th Amendment to the constitution. The genesis of the amendment lay with the battle with the judiciary. The Supreme Court, in a verdict stated that parliament has no power to amend the parts of the constitution relating to fundamental rights. Declaring fundamental rights transcendental in nature, the court opined that parliament cannot abridge or take away any fundamental rights. Subsequently, the ruling party introduced and passed amendments to Article 368 and Article 13 enabling parliament to suspend fundamental rights. The amendments, made in 1971, were viewed by many as overreach by the incumbent. This amendment was instrumental in the declaration of the state of emergency on June 26, 1975, suspending civil liberties and elections. The declaration came soon after a

Indira Gandhi (October 31, 1984). The INC secured 75.8% of seats under the leadership of Rajiv Gandhi. While his tenure (1984-89) was marred by large scale corruption scandals, particularly the allegation that he received kickbacks from a Swedish arms company in the 1986 weapons buying deal, there were no extra-constitutional measures implemented to further his political power. The criticisms of Rajiv Gandhi, for ineffective leadership, should be tempered by the acknowledgement that he is the only leader in South Asia who has not abused his supermajority in the past four decades. Pakistans history of supermajority parliaments, in 1977 and 1997, ended with the demise of civilian government. The 1977 elections, the first since the country lost its eastern wing (as Bangladesh emerged as an independent country in 1971), was a mark of its step towards democracy. The incumbent Pakistan Peoples Party (PPP) led by Zulfiqur Ali Bhutto, who ruled the country from 1972 allegedly manipulated the elections to secure an absolute majority. The 77.5% of seats in the parliament provided credence to the allegation and helped the opposition to intensify the street agitations on the one hand while the government adopted a heavy-handed policy to curb the opposition. Capitalising on public agitation, the military intervened and Pakistan fell into a long spell of military rule. The military rule continued until the suspicious death of the then President Zia ul Huq in a plane crash on August 17, 1988. In the 1997 election, the Pakistan Muslim League (PML) under the leadership of Newaz Sharif emerged as the winner, one seat shy of the supermajority. But soon it managed to get the support to ensure a two-thirds majority. Subsequently the parliament adopted the Thirteenth Amendment of the constitution which stripped the president of the power to dismiss the government and made his power to appoint military service chiefs and provincial governors contingent on the advice of the prime minister. While many viewed these changes

as corrective measures for balancing power between the PM and the president it also made the PM virtually unaccountable. With the Fourteenth Amendment, called the anti-defection clause, elected members were prohibited from floor crossing or voting against party lines. Arguing that it will stop horse-trading and provide stability to the government, it also became impossible to dissent with the party, particularly the PM. The arbitrary power assumed by the PM through these changes was revealed when the Newaz Sharif government became engaged in a protracted dispute with the judiciary, culminating in the storming of the Supreme Court by ruling party loyalists in November 1997. The PM was also alleged to have engineered the dismissal of the chief justice and the resignation of President Farook Leghari in December 1997. All in all, Pakistani politics became embroiled in a battle between the legislature and the judiciary. As the PM attempted to remove the chief of the army, Pakistan experienced another coup in 1999. The election of 1977 in Sri Lanka dealt the United National Party (UNP) and its leader JR Jayewardene a resounding victory with 83.33% of parliamentary seats. The former ruling Sri Lanka Freedom Party (SLFP) secured only 4.76% of seats. The ruling party amended the 1972 constitution through the Second Amendment in 1977 which created the powerful executive presidency.

The election results, including the ones participated in by well-organised competing parties, show that a South Asian electorate has never voted a party or a coalition to secure two-thirds majority. That is, in a fair election no political party has secured 66% or above popular votes (in this account we have excluded two Bangladeshi elections 1988 and February 1996. In both instances, there were no viable alternatives for electorates to choose from. Notably voter turnout was low in these two elections). The only exception to this is the 1973 election. But that too was fraught with widespread rigging and electoral manipulation. In Bangladesh, ruling AL garnered 73% popular votes, in 2001 the BNP-led alliance secured 46.62% of popular votes, in 2008 the AL-led alliance received 57% of popular votes. In India, only 43.68% popular votes were bagged by the ruling INC 1971 election (percentage of their seats was 67.95); in 1984 the share of popular vote was 49.01% (75.8% seats). Pakistan Peoples Party had 60.1% of popular votes in 1977 (77.5% seats), and PMLs share of popular votes was 45.9% in 1997. In similar vein, with only 50.92% of popular votes, UNP in Sri Lanka secured 83.33% of seats. These results reflect a deep-seated problem with the FPTP system. The system has allowed and will continue to allow a party to claim for a supermajority when the electorate have not provided an express mandate.

Recurrence of such kind of results, particularly in such short interval, is bound to have long-lasting effects on the institutions, political psyche and political culture

Is a two-third majority in a parliamentary system of government a blessing for the country or a curse?

And during the periods under supermajority rule drastic constitutional changes have been made with significant consequences. Bangladeshs brush with the supermajority began with its first election in 1973. The Awami League (AL) led by Sheikh Mujibur Rahman secured 97.67% of seats in the parliament. This provided the party with the opportunity to change the constitution to the extent that the country ended up with a one-party system within less than two years, the parliament extended its own tenure and Sheikh Mujibur

had the shortest tenure in the history of the country. Yet, its single legislative action has remained a source of contention among the political parties to date. The Thirteenth Amendment, as many are aware, introduced the caretaker system during the elections but it was not done in consultation with the electorate. While one can exclude these three elections as anomalies, for the results of two elections were outcomes of the machinations of the military rulers to earn legitimacy and one was to make

Jayewardene assumed the presidency on February 4, 1978. Then a new constitution was framed which removed the FPTP system. But through subsequent amendments the tenure of the parliament was extended until 1989 (the Fourth Amendment in 1982), weakened the judiciary, and extended the immunity of the president (via Fourteenth Amendment in 1988). Overall a different political landscape and system of governance emerged out of the parliament that remained effective between 1977 and 1989. Overall, the supermajority in parliament has accorded enormous powers to the ruling parties and its leaders in South Asia in the past four decades which have been used to change constitutions and strengthen the executive power of the prime minister (or the president, in case of Sri Lanka). The only exception is India in 1984. One can argue that many of these elections were held fairly and these parties have been elected by popular votes. Therefore, these should be seen as expressions of the popular will. But close scrutiny of these results reveal otherwise.

One can draw a tentative conclusion from these experiences which will be akin to what Chris Addock, in his study of Guatemala, Colombia and Algeria, mentioned: The presence of [a] functioning electoral system does not automatically ensure the existence of true democracy or rule out the possibility of authoritarian structures or practices. The survey also shows that among the South Asian countries Bangladesh has experienced the phenomenon more than any other country in the past four decades. The discrepancy between the popular votes and the parliamentary seats allowing a party to operate with almost no checks has been detrimental to democracy, in Bangladesh and elsewhere. But recurrence of such kind of results, particularly in such short interval, is bound to have long-lasting effects on the institutions, political psyche and political culture. l Ali Riaz is Professor and Chair of the Department of Politics and Government at Illinois State University, USA.