In an article captioned "Light at the end of the tunnel?" which appeared in the September 12 issue of The Daily Star, I had suggested that, in case the politicians failed to resolve the caretaker controversy, Justice Hasan would spare the country a calamity by stepping aside and making himself unavailable for the post of CA. A former CTG advisor called me and said that my suggestion was not realistic and lacked objectivity. He said that Justice Mainul Reza Chowdhury, who was Chief Justice before Justice K. M. Hasan, has passed away and CEC Justice M.A. Aziz is the last retired judge. If Justice K.M. Hasan steps aside Justice M.A. Aziz would be the next Judge in line to become CA.

Justice Aziz, by his acts and words as CEC, has revealed his pronounced bias and demonstrated his total lack of administrative acumen in the preparation of the voters list for the forthcoming polls. Not to speak of the opposition political parties, no sane citizen could possibly accept him as next the CA, or his continuation as CEC. The former advisor argued that Justice Hasan is a decent gentleman, a man of conscience and of integrity. His past service to BNP, before he became a judge, should not be considered as a disqualification for his appointment as CA, as was observed by the former US senator Tom Daschle leader of Washington based National Democratic Institute (NDI) delegation during their recent visit.

I suppose, in realpolitik, public perceptions sometimes overshadow facts. Somehow, people consider Justice K.M. Hasan to be a BNP man, and suspect that his tenure as CA would be a de facto extension of BNP rule. They think that he will not play a neutral role and is least likely to create a level playing field for all the participating political parties in the forthcoming polls. However, a caucus comprising of Supreme Court veterans like Dr. Kamal Hossain, Barrister Amirul Islam, Barrister Rokon Uddin Mahmud, Barrister Zahir and other respected leaders of the bar could, perhaps, be able to clear him of this charge by unanimously vouching that his past links with BNP never clouded his role as a Judge, and that those links are unlikely to make him partisan and thus influence his actions as next CA. In case no such initiative is in the offing I believe that, unless he has an axe to grind, Justice Hasan would serve the nation better by stepping aside.

When the CTG provisions were incorporated in the constitution in 1996 the lawmakers thought, in line with the consensus the major political parties reached in 1990, that Supreme Court Judges would be the most acceptable people to run an interim administration for holding free and fair polls for orderly and peaceful transfer of power. But the impartiality of the 2001 CTG administration of Justice Latifur Rahman was questioned immediately after the election. The nation is now beset by a controversy involving Justice K.M. Hasan. It seems that, because of the CTG provisions, once revered Judges are losing the high esteem they used to command before.

It was former Chief Justice Mostafa Kamal who, possibly, first raised the fear of the adverse impact on the higher judiciary because of the CTG constitutional provisions. Since the insertion of the CTG provision in the constitution the judiciary has become more politicized than ever before. Inferior candidates, even with tarnished moral image, have got entry into the higher judiciary. Unwarranted controversy engulfed respected members of the Supreme Court. Separation of judiciary from the executive branch is sine qua non to uphold the rule of law, an indispensable prerequisite for establishing good governance in the country. However, the constitutional provision for appointing a chief advisor from among the former Supreme Court Judges is a harbinger of contamination of the judiciary by the executive branch through the political process. Therefore, to save the higher judiciary from its unintended impact, as well as the country from an impending disaster, it would be desirable to delete article 58C (3&4) of the constitution.

The deletion of article 58C (3&4) of the constitution would allow the president to appoint a CA "after consultation, as far as possible, with the major political parties." The Prime minister, and other BNP stalwarts, however, opined repeatedly that it would not be possible to zero in on any candidate for appointment as CA. One possible way out of this predicament is creation of a neutral electoral college for selection of CA candidates. The electoral college may be composed of 100 or so members nominated by political parties based on the percentage of votes they bagged nationwide in the previous general election. The electoral college for selection of CA for 2007 CTG would be composed of 46 representatives from BNP and its allies, 40 from the AL, 7 from JP (Ershad) as they received 46%, 40% and 7% votes in the 2001 election. The other smaller parties, which bagged more than half a percent votes, would also have their nominees.

These representatives should be drawn from non-partisan members of the civil society. To make their selection more participatory each political party should nominate two persons who are not members of their party, or its front organizations, for each position it is entitled to have in the electoral college. The government and the opposition would pick, from each others lists, those who would earn the voting rights finally.

Once the electoral college nominees are finalized they would follow a procedure similar to the one followed by the Cardinals in the selection of the Pope, by preparing a short list of three candidates from nominations made by at least 10 members of the group, for appointment as CA. They would forward the list of the three selected candidates to the president, who would then ask the PM, and the leader of the opposition in the parliament, to give him two choices, in order of preference, for CTG Chief. The president will appoint the one who is the most favoured common candidate.

However, in case the major political parties fail to reach an agreement on the procedure to select a CA there would be no option left for the president but to assume the functions of CA as provided in article 58C(6) of the constitution. Any deviation from the course chartered in the constitution would cause unnecessary sufferings to the people, and retard the nation's march on the path of democracy, freedom and economic emancipation.

Once a CA is appointed his place in history would be determined by his success in holding a credible election. Before Justice Latifur Rahman became CA in 2001 it was widely thought that he had AL leanings, but immediately after assuming office he ordered removal of 13 secretaries appointed by the AL government. Interestingly, Madam Khaleda Zia did not attend the function to show her disapproval of the shifting of the ceremony from morning to noon, and then to evening on that day. The tone of the 2001 CTG administration was set by the delay in oath taking, and Madam Zia and her party's absence on the occasion. During the next three months Justice Latifur Rahman focused all his efforts to make the election environment congenial for BNP. Possibly the apprehension that BNP might withdraw from the election process at any time influenced his every action all through.

The AL, before it left office in 2001, appointed mostly neutral, and even some BNP sympathizers, in top administrative positions. Justice Latifur Rahman, immediately after taking over, placed all those officials who were aggrieved during the AL regime in every key post, particularly election related ones. His government either revised, or kept in abeyance, every decision taken by the AL government during the last three months of its tenure. The CTG transferred all upazilla and district level officials from one corner of the country to another for severing any possible link these officials might have developed with local AL leaders. The present government has politicized administration on an unprecedented scale. The incoming CTG, by only following the blueprint of action Justice Latifur Rahman chalked out in 2001, will not succeed in making the administration clean and neutral for the 2007 election. They will have to take more rigorous actions. A CTG, trusted by BNP, if acts neutrally, will be well positioned to act more vigorously.

Once a CTG is in place it will act in full public view. Any partisan decision, or reluctance to make the administration neutral and create a level playing field for all participating parties, would be apparent. Therefore, the AL should withdraw from the electoral process and launch a movement only when it becomes apparent that the CTG is averse to creating a level playing field, and is hatching a plot to favour any particular party.

The AL had many commendable achievements, including increased economic wellbeing of the masses and unprecedented price stability, to its credit. But it lost miserably in 2001 election because of certain last moment decisions which tarnished its image, and its apathy in curbing the unwarranted activities of some of its activists like Hazari of Feni. The actions taken by the CTG for creating a level playing field compounded its predicaments.

Had AL left office in March 2001, as was announced by Sheikh Hasina in Medina, but refrained from doing so in the face of opposition of her senior cabinet colleagues, then, possibly, fortune would not have had smiled on the BNP. The then opposition leader Khaleda Zia played political chess better, and with determination. The report card of BNP's 5-years of governance is not one to be envied. However, it is still the party of choice of a vast number of people despite its failures to curb the price spiral, as well as the all pervasive corruption and toll collection, to meet the shortages of electricity, diesel oil, fertilizer, etc. and to protect Bangladesh citizens from BSF bullets in border areas.

Which party will win the next election depends on how well their leaders play the political chess game this time. Withdrawal from the contest, ab initio, by either party is not really an option. The PM is blowing hot and cold in her speeches across the country, and the leader of the opposition has made her position absolutely clear in the Paltan Maidan. The people are now anxiously waiting to see when they would rise above their narrow party interests and resolve controversies involving CA and EC in the best interest of the country.

The author is a former Sectary to the Government.