The caretaker conundrum
The caretaker government is expected to take over some time in October, as Article 72 (3) of the Constitution stipulates: "unless sooner dissolved by the President, Parliament shall stand dissolved on the expiration of five years from the date of its first meeting."
The current Parliament met in October 2001 and continues for a term of five years. Within 15 days after Parliament is dissolved, the Chief Adviser will be appointed.
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The introduction of the non-party caretaker government (CTG) to hold general elections in Bangladesh is unique.
The two major parties agreed to have this system on the suspicion that the government in power would not be able to hold elections peacefully, fairly, and impartially. It is a stigma on the political system of the country where there is a perception that the ruling government is unable to conduct fair and free elections.
It does not provide credit to the uprightness of politicians or of the government. It manifests one simple fact: that the politicians have no trust in each other. It palpably implies the absence of a healthy political system in the country.
The interim CTG is a non-party government and will be collectively responsible to the President. The CTG will remain strictly neutral in relation to political parties. This means the CTG will not be perceived to have a bias directly or indirectly, towards any political party. Their decisions, actions or omissions are to be scrupulously watched during its tenure, not only by political parties but by people at large including civil society.
Chief Adviser
During the CTG, the President is no more a titular head of the government, but exercises many key executive powers.
The deficiencies in the powers of the President (such as to act only on the advice of the Prime Minister) are removed during this time. Furthermore the defence portfolio is administered by the President, not by the Chief Adviser, in accordance with Article 61 of the Constitution.
The President appoints as the Chief Adviser he (or she) who among the Chief Justices of Bangladesh retired last. This appointment is automatic under the terms of the Constitution and does not depend on any condition. If the person is not in a position to hold the post, a series of options for appointing the Chief Adviser is provided.
It is interesting to note that under 58C (4), the current Chief Election Commissioner (a Justice of the Appellate Division of the Supreme Court) could be appointed as the Chief Adviser if he resigns, returns to the Appellate Division and retires this year, because Article 58C.4 provides that if no retired Chief Justice is available to hold the office of the Chief Adviser, the President shall appoint, as the Chief Adviser, the person who among the retired judges of the Appellate Division retired last.
Finally, when each process, as outlined in sub-clauses 4 and 5 of 58C for appointment of the Chief Adviser, is exhausted, and no one is available, the President "shall assume the functions of the Chief Adviser in addition to his own functions under this Constitution."
No wonder the office of the President has recently assumed much greater attention than in the past, because at the end of the day, the President not only exercises important executive powers during the CTG, but also could become the Chief Adviser under certain circumstances.
Other important features
The formation of the CTG was inserted in the Bangladesh Constitution in 1996 under the 13th Amendment Act in the form of new Articles 58B , 58C, 58D, and 58E in Part IV of the Constitution under the title "Executive."
Article 58B deals with the formation of the CTG, 58C articulates who can and cannot be the Chief Adviser and Advisers of the CTG, 58D discusses what the CTG can or cannot do, and 58D spells out the inapplicability of certain provisions of the Constitution for the CTG.
Let us examine some of the provisions just enunciated above to understand and appreciate their possible meanings as to the extent and limitations of the CTG's powers and functions.
Although the primary responsibility for the CTG is to facilitate the Election Commission all possible aid and assistance that may be required for holding the general election of members of parliament, it shall discharge its functions as an interim government and shall carry out the routine functions of such government and "except in the case of necessity for the discharge of such functions, it shall not make any policy decision."
Ordinarily, the CTG will not decide on policy issues. But it is argued that in the absence of any defined criteria, the CTG is empowered to make policy decisions.
To advance this line of argument, it is noted that the words, "routine," "in the case of necessity," and "policy," employed in the Article, are not defined. The constitutional provision is silent on the meaning of these terms.
What is routine, what is necessity, and what is policy are generally known and understood. But these expressions of words are related to circumstances on the ground that depend on a variety of factors and the CTG is the only organ of the state to give full meaning of the phrases used in the Constitution, besides the Supreme Court.
What is a policy decision?
Policy may mean laying down certain set of principles by the governments for running the administration. Policy can never remain static, it changes according to variable factors on the ground. It is elusive in character. Some experts have compared policy with the steering of the "ship" of the state and the captain of the ship has to change its course according to weather and conditions on the sea. Thomas Dye in his book on Understanding Policy (1978) provides an expansive meaning and defines policy as "whatever governments chose to do or not to do."
Since these phrases are to liable to various interpretations, the CTG will have to interpret these words in running the government.
Rules of interpretation
Many Constitutional experts take the view that the words of the Constitution may be interpreted in the following manner:
(a) All the Articles relating to the CTG must be read as a whole and its meaning is not determined merely upon particular words or phrases, which, if detached from the context, may depart from the substance of its intention
(b) The words are to be given their natural and ordinary meaning in the context they occur. However the words can be given extended meaning which, while not doing violence to the words used, are in conformity with the text and purpose of the words used.
(c) If the words in their natural and ordinary meaning are ambiguous or lead to an unreasonable meaning or result, the method of interpretation will be to ascertain what the constitution-makers really meant when they chose those words.
(d) An interpretation which would deprive CTG's functions as an interim government will be inadmissible.
Given the above rules of interpretation, it may be robustly argued that CTG is empowered to give interpretation in such manner of the provisions of the Constitution so as to be effective and strong, not weak or hesitant, in confronting the issues of the country.
Appointment of Advisers
The number of Advisers has been specified, not more than 10, to be appointed by the President. The Advisers shall be appointed by the President on the advice of the Chief Adviser.
Prior to appointment, Advisers, although they are qualified for election as MPs, must agree in writing not to be candidates for the ensuing election. They also should not belong to any political party or of any organization associated with or affiliated to any political party.
It is noted that there is no provision in the Constitution that Advisers will be appointed in consultation with the major parties. Legally speaking, it is the prerogative of the President, with the advice of the Chief Adviser, to appoint the Advisers in accordance with the guidelines of eligibility, laid down in the Constitution. The perception that exists in the minds of the general public that major political parties would submit a list of names of appointment of Advisers to the President for appointment is legally misconceived.
Only in case of non-availability of retired judge of the Appellate Division to hold the office of the Chief Adviser, the President shall appoint the Chief Adviser from among citizens of Bangladesh, "after consultation, as far as practicable, with the major political parties" (Article 58B.5). This is the only case where the President consults with the major political parties in relating to the appointment of the Chief Adviser.
Although there is no limitation beyond the minimum age of 25 for an MP, an Adviser cannot be appointed if the person is over 72 years of age. It is not understood the rationale why the age bar has been provided for appointment of Advisers, although they are eligible for election as candidates for MPs, given the longevity of many individuals over the age of 80s who act with competence and alertness as chairmen or presidents of organizations in the country.
Tenure of CTG
The duration of the CTG has not been set out as an exact period of time. The condition laid down is that the CTG shall stand dissolved on the date on which the "new Prime Minister enters upon his office after the constitution of [a new] Parliament." (58B.1).
If the new parliament is not constituted for whatever reasons or circumstances, the CTG will continue. Many political analysts think that given the existing unsettled issues among political parties relating to holding a free and fair election, the CTG may have a longer tenure than ordinarily assumed or expected.
In the light of the existing confrontational political situation with regard to reforms of the CTG and the demand of the resignation of the Chief Election Commissioner and two of his commissioners by the major opposition alliance of parties, one may argue that the length of the CTG tenure is indefinite because unless a new parliament is constituted and the Prime Minister enters his/her office, the CTG will have to continue to run the country.
Given the situation, it is very difficult to imagine, or predict or forecast how long the tenure of the CTG will be. Your guess is as good as mine.
Prince Otto von Bismarck once said: "Politics is the art of possible." I hope our political leaders may heed to his dictum.