Caretaker government reform redux

In the last article, we argued that the 14-Combined Opposition Parties Alliance's (COPA) demand for Chief Advisor to the CTG to be selected from a wider pool through dialogue and consensus seems to sincerely spare the higher judiciary from the controversy of politicisation. There was no attempt on our part to suggest in any way that the BNP government when it reformed the CTG in 1996 planned to politicise the higher judiciary for political gains.

While incorporating the CTG provisions in the constitution in 1996, the BNP government thought that former Supreme Court Justices would be the most acceptable choices to run an interim administration for holding free and fair polls for orderly transfer of power. The BNP lawmakers also foresaw the possibility that at some future point in time, former judges may become controversial and unacceptable to political parties at large. Therefore, the provision of appointing the Chief Adviser by the President after consultation with major political parties was also incorporated in the constitution. Thus the COPA's demand for forming the CTG from a wider pool is consistent with what BNP lawmakers also envisioned eleven years ago.

The controversy surrounding the appointment of the CTG chief has now surfaced with all its oddities, and the politicians must seize the moments and act like statesmen. However, there is one obstacle in the process: the constitutional provision of appointing a retiring Chief Justice or a retired Judge of the Appellate Division. Fortunately, this obstacle can be overcome by invoking article 58C (5) which states:

"If no retired Judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article."

There is a simple, yet most patriotic way out of the nested constitutional provisions. This requires the former Supreme Court judges to rise to the occasion. By their collective unwillingness to assume the position of Chief Advisor, they can save the country from another spell of political turmoil, thereby raising the country's image and their integrity on which people have always had great trust. There are many rationales for such a gesture on their part.

First, when political parties (and elected representatives) question the process surrounding the judges' integrity and neutrality in the discharge of duties as Chief Advisor, the provision of the constitution becomes outmoded and unworkable. The judges themselves, as saviour of their judicial traditions, should feel embarrassed and express their unwillingness to hold such a position.

Second, as honourable former members of higher judiciary, they should spare their beloved institution from becoming politicised by their refusal to be a part of CTG. Such a move to unite the people, rather than divide them, will certainly enhance the judiciary's image at home and abroad.

Last but not the least, separation of judiciary and executive is sine qua non to upholding the rule of law, an indispensable prerequisite to good governance in any country. The judges should realise that the very provision of appointment of Chief Advisor primarily from among the former Supreme Court judges at every election cycle is in fact a harbinger of unintended contamination of judiciary with the executive branch through the political process.

Once the judges as a group volunteer to withdraw their names from the CTG selection process, there may not be any need to amend the constitution prior to the 2007 election. The political parties can devise the fairest and most representative process with which to form an interim CTG. We believe, our proposed mechanism for formation of a Non Political Council (NPC) should be thoughtfully evaluated and debated along with other competing ideas that may come along. As requested by some readers, we worked out our model with an example in the table above.

The formation of NPC is necessary to produce a panel of three nominees for a position of Chief Advisor and 20 nominees for 10 advisory positions in the CTG. Their qualifications and eligibility requirements are being non-partisan, politically neutral, and with no criminal records. As proposed in the August 1 article, the NPC may be composed of 100 members to be nominated by political parties based on the percentage of votes received in the 2001 election.

Parties which received less than one percent popular votes are considered "noise makers" and will have no representation. However, this can be negotiated by the parties concerned. A hypothetical example of the formation of NPC is shown below. Based on the actual 2001 election results, number of members in the NPC may be slightly greater than, equal to or less than 100, depending on fractions.

Note that Column 4 in the Table is added in case one wishes to make the selection of NPC members somewhat more participatory. That is, each eligible party may nominate two candidates for each membership position in the NPC for review and consideration by other parties. For example, an opposition party, say B, which received 29.47 percent popular votes will submit a list of 58 eligible persons for acceptance by the ruling FPA of which 15 will be selected by the ruling FPA for party B's representation in the NPC. For acceptance of FPA's nominees, the same procedure would apply except that the opposition parties would act as a combined group. The final membership count is displayed in Column 5 which shows the same exact number as in Column 3 but some of the individuals in Column 5 now could be different than those in Column 3 because of a process of selection of 1 out of 2. In the process, no party can reject any other party's nominee except for proven disqualifications.

Once the NPC is formed, its members will elect a panel of three nominees for a position of Chief Advisor and 20 nominees for ten advisors to the CTG. This panel may consist of people from within and outside the NPC. The NPC will produce a panel either by consensus or by majority of two thirds.

Upon presentation of the panel to the President, he will consult the Prime Minister and the Parliament's opposition leader (POL) to give him two choices out of three from which he will appoint the one common to both as the CTG Chief. The Chief of CTG then will fill in the 10 positions of advisors by consulting the PM and the POL by a similar procedure adopted by the President to appoint the CTG Chief Advisor.

The authors are, respectively, Professor of Economics, Eastern Michigan University, and former Secretary to the Government of Bangladesh.