The Concept of Justice and Democracy*

Zillur R. Khan, Professor Emeritus University of Wisconsin and Adjunct Professor Rollins College, USA. Chair, RC 37, IPSA Prepared for Presentation at the AIBS, Dhaka, Bangladesh, March 15, 2011

John Rawls defines Justice as basic fairness in multidimensional interactions between humans and their institutions. The purpose of such varied interactions is to balance democracy with striving for security. (John Rawls, 2003:3-102.). Implicit in it seems to be a form of social contract inspired by the fairness principle contributing to societal stability. It helps to create a common ground on which political communities with the nation states being their highest expression can build an ideology of understanding and cooperation. But without a deep commitment of the leadership to justice as the basic principle of fairness in both policymaking and policy implementing, i.e., governance, the potentials for advancement would remain static. Ensuring human rights and the due process of law—two most important dimensions of justice—could transform a static state, which sometimes becomes regressive, into a dynamic state of just policies and good governance---two sustainable anchors of development. As Amartya Sen argues, “Development requires the removal of major sources of unfreedom: poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states” (Amartya Sen, Development as Freedom. New York: Alfred A. Knopf, 2000).

In that context the legal system, which for developing countries still carries the baggage of colonialism, must be reformed. Justice in and for Democracy needs a basic structure of society where “main political and social institutions of society fit together into one system of social cooperation, and the way they assign basic rights and duties and regulate the division of advantages that arises from social cooperation over time…”(John Rawls, Justice as Fairness: A Restatement. Ed. Erin Kelly. Harvard University Press: Cambridge, 3rd Printing, 2003). This, according to Rawls, is “background justice”, which is needed for a well ordered society where advantages of power and resources can be divided and distributed fairly. Upholding this fairness principle would involve limits on power, preventing excessive concentration and resulting misuse by individuals, groups, associations and institutions. An outcome based justice in terms of ensuring justice of different types, such as, substantive, procedural, distributive and compensatory, among others, while correcting injustice complement Rawls’ “transcendental” background justice, as Sen has argued (Sen, The Idea of Justice, Harvard, 2009). Here I submit that most of the factors connected with the Bengali struggle for freedom, mostly involving a growing demand for state rights stemming from their hopes and aspirations for a better life have defined their demand for justice as basic fairness. Thus Bengali movement for freedom in Pakistan culminating in the creation of a new nation played on two conceptual levels: the ideal of justice as basic fairness to strive for and operational reality of justice in addressing specific cases of injustice.

The right of dissent captures the basic freedoms providing the essence of Democracy, without which a democratic state cannot properly function. This core human value has different dimensions encompassing freedom of speech to press to assembly to religion enshrined in most of today’s constitutions. But in the name of security most states have infringed this basic human right, undermining the core principle of justice. Using this framework and a cross-cultural dimension I wish to explore the strategies and options for reforms of political, economic and social systems in Bangladesh. Unfortunately democratization without a deep leadership commitment to justice tends to break down at the altar of narrow political and group interests.

Perhaps the most important values sustaining democratic governance and institutions are universal rule of law and right of dissent manifested through tolerance, integrity, effectiveness and responsiveness in electing and selecting decision makers, which elude most third world nations, most recent case being Arab revolutions sweeping the Middle East, especially brought on by Arab leaders’ political suppression, intimidations, mal-governance and fraudulent elections. Similar incidents happened in a number of African and Asian nations over the last six decades, including Pakistan. The Pakistani military crackdown on the movement of the people of East Pakistan for justice was so bloody that the then American Consul General in East Pakistan, Archer Blood who saved me, termed it as “Selective Genocide” (Blood, 202: 215-117). It was a catalyst for the liberation war creating a new nation of Bangladesh.

Following liberation, like many developing nations with weak institutions---a legacy of colonial rule, the bureaucracy, both civil and military, gained strength due to inexperience of political leaders with the concept of justice, particularly its application for policymaking and governance. Trying to make up for weak governance with strong political power led to corruption of power and mismanagement of scarce resources, to the dismay of a liberated people with great expectations.

Justice: Underlying Democratic Values Here the underlying principle of justice as basic fairness could have at least reduced if not bridged the gap between public expectations and harsh realities. I believe through an institution building and reforming process involving educational, legal-judicial, socio-economic and politico-administrative entities, the values of tolerance of others with different views and beliefs together with the acknowledgement of their capability and contributions will go a long way in reducing that gap. In advancing these values along with the right of dissent a fledgling democracy like Bangladesh must make its HRC a high powered, non-partisan institution with legally guaranteed political non-interference and needed administrative support for its investigating, deliberating and reporting duties. As well implementing the constitutional provision of Ombudsman might help mitigate the alleged inhuman treatment some have allegedly received while in custody of police and military intelligence agencies. Both the caretaker and elected governments must consider whether or not these Commissions will be authorized to hold Hearings on grievances from aggrieved citizenry. The fact is without having Subpoena and Contempt powers, and requisite resources—material and personnel---these Commissions would be toothless.

Interlinked with the right of dissent is the right of opposition to voice its concerns at every level of policymaking process. In order to make a democracy really workable serious efforts must be undertaken by elected leaders to build stakes for opposition parties to meaningfully participate in parliament. It could involve, for example, apportioning time to opposition parties in parliamentary deliberations and committee assignments in proportion to their representation, preferably by combining the percentages of electoral votes and parliamentary seats. Also for a balanced approach to assuring the main opposition party a meaningful role in parliamentary deliberations an important institutional change could be considered whereby the Deputy Speaker of Parliament as well as Associate Chairs of Parliamentary Committees would be selected by the opposition. This strategy might prevent future deadlocks caused by intransigence of the majority party to give the opposition enough time to actively participate in parliamentary deliberations. More often than not the “Winner Takes All” (WTA) mentality has resulted in boycott of parliamentary deliberations by the opposition followed by street agitations and general strikes having adverse effects on national development. A change in the electoral system may be tried on a trial basis replacing WTA with proportional representation (PR) in which percentage of votes by different parties in the general election would reflect the number of parliamentary seats won by respective parties. This could serve the cause of both representational and electoral justice, which I’ll discuss later.

Social Contract, Justice and Power Concerted efforts by public and private sectors are needed to renewing the spirit of Social Contract, which I believe is an important dimension of justice. Such a renewal would contribute to a vital socio-economic-political balance by mixing human rights with accountability at every societal level. It would call upon institutional reformers to become transforming change agents, striving to be leaders and teachers at the same time, raising the consciousness of their followers to a higher level at which spontaneous mobilization of human and material resources could happen. The value of the great leap “from status to contract” must be inculcated through a reformed, progressive education system and a deep political commitment to changing the mindset of leaders at every level in every field from the self-centered transactional relationships to public interest based transforming ones between themselves and their constituents.

In this regard fundamental reforms of religious institutions are in order for reviving the spirit of Islam about an open quest for knowledge and peace. Buttressed by returning Bangladeshi Jihadists from Afghanistan, Iraq and Pakistan, some radicalized Mullahs and their pupils continue unabated to distort Islam in private or quami Madrassas to justify violence against secular minded Muslims, disadvantaged women and religious minorities in Bangladesh.

There is also an important question about justice and power. Given the political reality that institutionalization of power is an arduous, painful and long-drawn process, what new strategies or rethinking of existing ones must be applied to check human propensity to personalize and perpetuate power positions by any means undermining justice itself? Unrestrained power invariably impedes freedom and justice vital for multifaceted development. I believe transforming leadership and enduring institutionalization of power relationships can make a real difference in the struggle for justice and against poverty and unfreedoms.

Giving everyone his due - rights, authority, accountability and equal opportunity to get education to develop one’s innate ability - has been a core guideline of Justice from Plato to Gandhi to John Rawls to Amartya Sen. Rights with corresponding obligations as a matter of basic justice have been expanding since English and American Bills of Rights culminating in the civil and voting rights legislations of the sixties, which added “compensatory” as an important dimension of justice. This became the legal as well as moral basis of affirmative action programs in America and elsewhere. But it takes deep commitment of leaders - executive, legislative, judicial or any combination - to translate justice from legal acts to operational reality.

Justice and Leadership As always the difficult and complex work of applying justice for human development inevitably falls on the shoulders of leaders and followers at every level. Leadership, therefore, has been a special focus in the literature on political development in its various facets. Without the leaders’ capacity to balance security and freedom through justice in an institutional framework, transformation of their own consciousness along with their followers cannot happen. And without it fundamental changes could never take place and well-intentioned reforms would seldom have their desired results. Regardless of the type---moral, constitutional, legal, bureaucratic, charismatic or any combination, leaders become ineffective without their ability to transform vital goals into tangible programs of action. For that they need knowledge, relevant experience, an iron will to minimize “Groupthink” and control their “cocoon weaving mind guards” and a touch of wisdom to bring about tactical reforms and avoid political disasters. In the new information age of face books and twitters, leaders must not only bypass screening of negative feedbacks but also learn how to leverage the deluge of information classifying and clarifying with the specific purpose to engage and motivate citizens and functionaries for improving governance, and by a feedback loop policymaking itself.

Electoral Justice Indeed, electoral justice is the foundation of any democratic government. However, it needs a firm institutional framework to prevent electoral fraud and violence, which routinely claims lives in elections in most developing countries. The process of choosing leaders by free and fair elections has eluded most third world nations, most recent case being in Iran during June 2009 where questionable elections resulted in mass protests and government crackdown claiming a number of innocent lives, not to mention the troubled and questionable elections held in Afghanistan in July-August, 2009 under the security umbrella of US led ISAF, consisting chiefly of NATO countries.

An enforceable guideline for holding all elections must have a tested method to prepare an above board electoral roll, verify fiscal accountability of candidates, provide impartial monitoring of polling stations, and impose heavy fines and imprisonment for fraudulent voting. A non-partisan Election Commission, headed by a strong willed, politically neutral Chief Election Commissioner, with Subpoena and Contempt powers under the constitution to rule on disputed electoral outcome on a case by case basis, allowing judicial appeal as a last resort, can be more effective. An unquestionable, above-board election gives elected leaders the legitimacy to mobilize public support, even among segments of opposition parties, for a myriad of important policies. As well by upholding electoral justice leaders could then begin a transforming process in which free and fair elections become a routine political phenomenon in more developed and not-so-developed emerging nations.

Among the not-so-developed emerging nations Bangladesh offers a case in point. Representing the third largest nation in South Asia and seventh in the world, lawmakers in Bangladesh sought to ensure free and fair elections by incorporating an Amendment into the young nation’s Constitution mandating that all general elections be administered under a non-partisan Caretaker Government. Given the weakness of institutions in most emerging nations, a constitutionally empowered election commission may not be strong enough to withstand increasing pressure from an incumbent government to tilt the balance in its favor. Much as any ruling party would like to end the Caretaker Government innovation of Bangladesh by repealing its 13th Constitutional Amendment, it might be a prudent political move to continue for a few more general elections. In fact, two highly respected Chief Elections Commissioners of India have suggested replicating the non-partisan Caretaker Government experiment in emerging nations, particularly in state elections in India, if not at the federal level.

Representational Justice Closely connected with electoral justice is Representational Justice. Is it just to have representation in parliament that is grossly disproportionate to votes won by a political party in general elections? For instance, in spite of Bangladesh’s one of the two biggest political parties, Awami League (AL) winning more than 33% votes in 2001 election it received less than 20% seats in the Parliament and the situation was reversed in 2008. In spite of winning more than 30% popular votes, Bangladesh’s other biggest political party - Bangladesh Nationalist Party (BNP) - got less than 11% of parliamentary seats. The issue of representational justice, namely basic fairness in determining parliamentary seats on the basis of popular votes won by respective political parties has captured the attention of the British voters, who will vote on majority vs. plurality principle of electoral law in a referendum this year (2011). Depending on the outcome of that referendum interested parties in Bangladesh may get the opportunity to take a closer look at WTA and compare with the European PR system with a view to understanding the possible impact of each on representation in parliament.

More often than not the WTA mentality has been responsible for parliamentary dysfunction. A change in the electoral system may be tried on an experimental basis replacing WTA with PR in randomly selected constituencies in which percentage of votes by different parties in the general election would reflect the number of parliamentary seats won by them. Or at least a majority rather plurality voting rule could be tested in randomly chosen constituencies. In this a majority rather than plurality of votes through run-off elections, if needed, may prevent a situation where a candidate winning 15% to 20% of popular votes gets elected as MP, whereas in another constituency a candidate securing 35% to 45% fails to become a MP. Whether by a continuous public debate or by a constitutional convention, it is important to build a national consensus for resolving the issue of appropriate electoral system for a stable Democracy in not only Bangladesh but other emerging countries as well.

Also for representational justice there must be a process by which the elected can be held accountable between general elections. With its two thirds majority in Parliament could the ruling party seriously consider incorporating a constitutional amendment to utilize strategies of “Recall” to vote corrupt elected officials out of office in special elections? Again for representational justice could they consider by the same process to empower voters to propose and ratify important public policies through respectively “Initiative” and “Referendum” in special and/or general elections? This Swiss electoral innovation has been incorporated in a majority of American State Constitutions (37 out of 50) and a number of European countries with positive outcome.

Perhaps a future bicameral legislature in Bangladesh could significantly alleviate the felt problem of representation, particularly for women, in the highest policy making body. Representational justice demands much more than what the 45 nominated women parliamentarians could hope to accomplish. For example, in a future upper house the method of proportional representation could significantly give women, smaller political parties and occupational-professional groups a sure way to increase participation in the national-cum-sub-national policymaking processes, helping to check any excesses of the other house and to build policy consensus on national goals as well. To that end, Japan has effectively combined the two electoral methods, namely 300 single member districts and 180 multimember proportional representation constituencies in the lower house of its legislative body (Diet).

Justice and Development Both Representational Justice and Development as Freedom can be further ensured by devolution of authority to the grassroots. It would make the local government system more self reliant. Despite some expected downside of localization in the shape of increased clannishness and related nepotism-cum-corruption, serious decentralization - both political and economic - would reduce local government’s over - dependence on the higher bureaucracy, thereby helping the people at the grass-roots level to take initiative in defining and solving a myriad of local problems. The self-help and creativity thus engendered could become a major force of development, leading to greater socio-economic development in rural areas setting perhaps a new trend of reverse migration from urban to rural areas, significantly narrowing the urban-rural divide and the resulting socio-economic-political problems facing many of today’s emerging countries, including Bangladesh, China and India.

For sustainable human development strategic tolerance for survival, control and progress has been a positive influence throughout history. Lack of relative tolerance has led to the fall of empires, civilizations and nation states (Chua, 2009: 1-200; Ferguson, 2006: xlii-xlvi; Zakaria, 2008:10-18). Basically among emerging nations with Muslim majority or large minority Bangladesh has been and is a relatively tolerant nation, which some religious extremists have sought to change overtly by terrorism and covertly using certain militant parties as vehicles to spread a distorted interpretation of a great world religion---Islam.

To ensure justice, averting possible incidents of injustice, violent fanatics must be brought under control. An effective, sustainable way to do it will be through the restoration of the tolerant and knowledge based thrust of education, which shapes a nation (Plato, Republic). Particularly religious education in Bangladesh, as in many other emerging countries, cries out for significant curricular reform to strike a balance between theological and scientific focus in most religious schools called Madrassas in South Asia, particularly private or Quami ones chiefly supported by Wahhabi charities whose trainees or Talibs emerged as Pakistani, Afghani, Bangladeshi and other nationality based extremist Talibans. Despite Qudrat-i-Khuda Commission’s recommendations in the early seventies followed by 1996 and 2010 Education Reforms in Bangladesh, and the public commitment of political leaders to bring basic curricular change in Madrassas, no qualitative change has taken place. In fact distortions of some theological concepts have continued unabated spewing hatred against the “others”, often resulting in increased militancy against women, minorities and those perceived by them as secularists. This trend has unfortunately been sustained by double standards of some western democracies.

Conclusion Leaders must make concerted and determined efforts at alleviating endemic poverty having dehumanizing effects on peoples in three fourth of the world, denying them access to life saving and life enriching systems. This would require coordinated actions by industrialized, resource rich and developing countries to invest in human development---socially, economically and politically. Here again Rawls’ “background justice” should be the basis for creation, allocation and distribution of resources, ensuring the basic fairness of the process. In specially convened sessions of the world body followed by regional intergovernmental and non-governmental organizations leaders at different levels could come up with acceptable action plans and needed resources to implement them. In the hands of just a few visionary-cum-transforming leaders the old global framework of survival through Mutual Assured Destruction or MAD could be transformed into a global quality of life through Serve Apparent Needs Effectively or SANE, perhaps creating a fundamentally different world MAP (Mutual Assured Peace). These global confidence and trust building efforts would likely have a positive impact on leadership at regional, national and local levels. Yet the fact remains unless the two nuclear rivals - India and Pakistan - settle their long drawn out territorial disputes, Bangladesh and other SAARC countries would be deprived of peace dividends, if any.

As global leadership for dynamic human development would be an important precondition for global peace, so would the regional and national leadership for regional peace, which would require fundamental changes in the perception of long term mutual benefits over short term apprehensions of mutual threats. For this a new leadership must emerge - knowledgeable, experiential, and intellectually and morally inspiring - enabling different types of leaders to be involved in a continuous individual/group interactive intellectual and operational experience. Reinforcing the spirit of social contract, the dissemination of knowledge and experience on a bilateral and/or multilateral basis would have as its chief purpose to achieve a consensus on certain fundamental values. This could help create a sound framework for concerted, integrated decision making and implementing for societal advancement. Public-private policy forums and projects jointly sponsored by government and civil society groups would help clarify problems and issues being faced and how best to address them in order to achieve consensus for national development by bridging security and freedom with justice and greatly facilitating the process of implementation of just policies.

Injustice advertently or inadvertently done, like ingratitude, paraphrasing Shakespeare, can be stronger than a traitor’s arm vanquishing the spirit of an individual or a group or a society or a nation. Pursuing the principle of basic fairness in inter-personal and inter-group dealings Bangladesh could play a primordial role in facing challenges not only with poverty alleviation but also with other intra-regional issues and concerns. After all, Bangladesh did start the regional movement for cooperation in both fields among South Asian countries.

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