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When Corruption Is an Emergency: “Good Governance” Coups and Bangladesh

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When Corruption Is an Emergency: “Good Governance” Coups and Bangladesh Fordham International Law Journal Volume 35, Issue 3 2012 Article 4 When Corruption is an Emergency: “Good Governance” Coups and Bangladesh Nick Robinson∗ Nawreen Sattary ∗Jindal Global Law School yUniversity of Michigan Law School Copyright c 2012 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj WHEN CORRUPTION IS AN EMERGENCY: “GOOD GOVERNANCE” COUPS AND BANGLADESH Nick Robinson and Nawreen Sattar* INTRODUCTION 738 I. CORRUPTION AND EMERGENCY IN BANGLADESH 742 A. History of Emergencies, Corruption, and Anticorruption Efforts in Bangladesh 742 B. Prelude to Emergency: Failure of the Caretaker Regime Process 746 C. The Declaration of Emergency and the Anticorruption Agenda 748 D. The Drive Against Corruption 751 1. Nature of the Emergency Regime 751 2. The Anticorruption Agenda: Tool for Change 752 II. BLOCKED IN COURT 755 A. Showdown on Bail 757 B. The Tide Turns 762 III. RETURN TO DEMOCRACY AND THE EFFECT ON ANTICORRUPTION EFFORTS 763 IV. IN CONTEXT: PAKISTAN AND THAILAND 765 A. Pakistan 766 B. Thailand 771 V. RECOMMENDATIONS 775 CONCLUSION 779 * Nick Robinson and Nawreen Sattar are co-authors of this Article. Nick Robinson is an Assistant Professor at Jindal Global Law School and visiting fellow at the Centre for Policy Research, New Delhi. Nawreen Sattar is a J.D. Candidate at the University of Michigan Law School and has an M.A. and M. Phil. in Political Science from Yale University. The Authors would like to thank Ridwanul Hoque, Susan Rose-Ackerman, Pratap Bhanu Mehta, Ayesha Jalal, Maryam Khan, and Vikramaditya Khanna for their valuable comments on this Article. Sambhrama Ravi Malimath and Maitri Yadav, students at Jindal Global Law School, provided helpful research assistance. The Authors are grateful to several key actors in Bangladesh’s anticorruption drive who generously shared their time. The interviewees often remain anonymous in this Article. 737 738 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 35:737 INTRODUCTION In January 2007, President Iajuddin Ahmed declared a state of emergency in Bangladesh amidst violent street protests over feared vote-rigging in the run-up to planned elections. 1 A military-backed interim government ruled Bangladesh for most of the next two years on a platform aimed at cleaning up the country’s democratic institutions through an ambitious anticorruption program.2 The military takeover in Bangladesh capped a decade of “good governance” coups in South and Southeast Asia, where militaries justified their interventions on the basis of widespread frustration with incompetent and corrupt political leaders.3 Two other prominent examples were Pakistan and Thailand. General Pervez Musharraf came to power in Pakistan in 1999, after deposing Prime Minister Muhammad Nawaz Sharif, who led an unpopular government marred by graft and ineffective governance. 4 In 2006, the Thai military pushed President Thaksin Shinawatra into exile amidst street demonstrations over the President’s allegedly heavy-handed rule, vote-buying, and improper sale of his telecommunications company.5 In Bangladesh, Pakistan, and Thailand, the supposed corruption of democratically elected leaders was not only used as one of the primary justifications for the military-backed takeover, but also as an instrument for sustaining it. These military-backed governments claimed that corruption had to be 1. See President Declares State of Emergency, UNITED NEWS OF BANGL., Jan. 11, 2007, available at LEXIS. 2. See Somini Sengupta & Julfikar Ali Manik, Secular Party Wins Landslide Victory in Bangladesh, N.Y. TIMES, Dec. 30, 2008, http://www.nytimes.com/2008/12/31/ world/ asia/31bangladesh.html. 3. See infra Part IV.B (explaining the “good governance” coups in both Pakistan and Thailand and comparing each to the Bangladeshi experience). 4. See General Pervez Musharraf, Address to Pakistan (Oct. 17, 1999). An English translation is available at http://www.pakistani.org/pakistan/ constitution / post_ 12oct99/musharraf_address_17oct1999.html. See also Tim Weiner & Steve LeVine, Pakistan’s Ruler Pledges to Curb Corruption, N.Y. TIMES, Oct. 17, 1999, http://www.nytimes.com/1999/ 10/17/world/pakistan-s-ruler-pledges-to-curb- corruption.html. 5. See Tom Ginsburg, Constitutional Afterlife: The Continuing Impact of Thailand’s Postpolitical Constitution, 7 INT’L J. CONST. L. 83, 97–98 (2009); John Aglionby, Thai Military Revives Thaksin Corruption Inquiry, GUARDIAN (U.K.), Sept. 25, 2006, http://www.guardian.co.uk/world/ 2006/ sep/ 25/ thailand. 2012] “GOOD GOVERNANCE” COUPS AND BANGLADESH 739 eliminated before civilian democratic rule could successfully take root and flourish. 6 They revitalized anticorruption commissions and attempted to remake the civilian political landscape by using corruption charges to imprison, exile, or marginalize political leaders, frequently with the complicity of the judiciary and international community. Simultaneously, the military-backed governments passed laws and created other institutions that promoted “good governance” to lay the groundwork for more controlled and tempered political parties and politicians once civilian democratic rule returned.7 Curiously, little academic attention has focused on how charges of corruption have been used as a tool by the military to seize political power. For example, anticorruption commissions have been praised by some for producing “significant, sustained reductions of corruption”8 but criticized by others as “likely to fail” while undermining the “credibility of [politicians’] commitment to reform.” 9 Meanwhile, the repeated use of charges of corruption to target democratically elected leaders during military-backed takeovers has largely escaped scrutiny.10 Anticorruption campaigns form a central plank of the “good governance” efforts of international organizations’ development agendas.11 Like most “good governance” or “rule 6. See Clark Neher, Democratization in Thailand, 21 ASIAN AFF.: AM. REV. 195, 195 (1995). 7. See infra notes 163–64, 173–80 and accompanying text (describing the military- backed government’s efforts in Pakistan to establish a democracy free from corruption); infra notes 202–11 and accompanying text (discussing the military-backed government’s attempts in Thailand to revitalize democracy and remove corruption from civilian political institutions). 8. Michael Johnston, A Brief History of Anticorruption Agencies, in THE SELF- RESTRAINING STATE: POWER AND ACCOUNTABILITY IN NEW DEMOCRACIES 217 (Andreas Schedler et al. eds., 1999). 9. JOHN R. HEILBRUNN, WORLD BANK INST., ANTI-CORRUPTION COMMISSIONS: PANACEA OR REAL MEDICINE TO FIGHT CORRUPTION? 1 (2004), available at http://siteresources.worldbank.org / WBI/Resources/ wbi37234Heilbrunn.pdf. 10. See, e.g., USAID, ANTICORRUPTION AGENCIES (ACAS): OFFICE OF DEMOCRACY AND GOVERNANCE ANTICORRUPTION PROGRAM BRIEF 6 (2006) (stating that “[w]hile [anticorruption agencies] are not likely established with this as their stated purpose, once created, they are often manipulated by the ruling party to attack and eliminate members of the opposition or to punish members of their own party who are perceived as having stepped out of line,” but not commenting on the potential abuse by the military of anticorruption agencies). 11. See, e.g., Democracy & Governance, USAID, http://www.usaid.gov/our_work/ democracy_and_governance/technical_areas/anti-corruption/ (last visited Jan. 11, 740 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 35:737 of law” efforts, these campaigns are often portrayed as politically neutral. However, in practice, they are not. 12 Both national anticorruption advocates and the international community are severely constrained in pointing out corruption within the military or the military’s own potential political biases when it prosecutes civilian corruption. The military’s revered status as the protector of the country and the highest emblem of its sovereignty makes it difficult to either bring these charges or remind the public of the military’s past malfeasance. The result is a one-sided picture of corrupt and incompetent politicians versus a disciplined and incorruptible military. In turn, military- backed governments exploit this asymmetry. This is the anticorruption paradox: while widespread, unchecked corruption undermines the legitimacy of democratic institutions, anticorruption campaigns may also inadvertently threaten democratic institutions in countries with politically active militaries by weakening civilian leaders while leaving the military largely unscathed.13 As such, anticorruption efforts can help lay the groundwork for a “good governance” coup. Part I of this Article describes how anticorruption and “good governance” campaigns helped justify and perpetuate recent military rule in Bangladesh. After declaring a state of emergency in 2007 (the “Emergency”) and restoring calm, the military- backed government did not immediately move to hold elections. Instead, it proceeded, with the complicity of the international community, to place most of the country’s leading politicians in jail on corruption charges in a sweeping, and seemingly 2012) (“Corruption poses a serious development challenge. In the political realm, it can seriously undermine democracy and good governance. Corruption also undermines economic development.”); Governance & Anti-Corruption, WORLD BANK, http://web.worldbank.org/WBSITE/EXTERNAL/WBI/EXTWBIGOVANTCOR/ 0,,menuPK:1740542~pagePK:64168427~piPK:64168435~theSitePK:1740530,00.html (last visited
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