Non-party caretaker government: Is it working?
Many people think that they stand before the Sphinx at this moment. They desperately want an answer as to how the coming election can be held in a free, fair and credible manner, the very purpose for which the non-party caretaker government was conceived and incorporated in the Constitution.
Extraordinary turn of events
For all latest news, follow The Daily Star's Google News channel. Most people: (a) Never contemplated a situation in which the retired last chief justice could not take up the post of the chief adviser.
(b) Never anticipated that the president could not find a non-party citizen in the country eligible to assume the post of the chief adviser under Article 58C.5 of the Constitution ( while 14 non-party persons are easily found to constitute the council of advisers).
(c) Never imagined that the president would assume, concurrently, the post of the chief adviser, the last option under Article 58C(6).
(d) Never expected that four advisers, pricked by their conscience, would resign from the caretaker government for their (advisers') perceived failure in creating an environment for a free and fair election.
The chain of events is extraordinary and has made many people sit up to take a hard look at what they thought the caretaker government would achieve, and its current performance.
All these signs demonstrate that the objective of the caretaker government has run into deep trouble. It is partly because the provisions of the caretaker government were poorly conceived and drafted, and partly because of major disagreements among political parties on the interpretation of the Constitutional provisions relating to the caretaker government.
Why the caretaker government?
In parliamentary democracy, as in Britain, Australia, Canada and New Zealand, as soon as the date of election is announced and parliament is dissolved, the ruling government goes into caretaker mode, bereft of taking any policy decisions. If any policy decision is to be made it has to be in consultation with the opposition political parties.
This means that during the election period, the ruling government has no "teeth" and, therefore, cannot "bite." It runs routine day- to-day functions until the new government is constituted.
Bangladesh departed from this practice because major political parties did not trust each other to hold a free and fair election. They had no trust in the ruling political party to hold the election. They suspected that the ruling party would try to win the election by unethical means, depriving the opposition parties.
Rigging of elections is not unusual in developing countries in Africa, Latin America and Asia. Recently, the opposition party did not accept the outcome of the Mexican presidential election and they boycotted the swearing-in ceremony of the new president on the ground that the ruling party "stole" the election. Last year Uganda's election was allegedly rigged and the opposition started a movement against the result.
Against this background, in 1996, it was agreed by major parties to amend the Constitution (Thirteenth Amendment) to install a non-party caretaker government during the election period.
Many suggest that the provisions of the caretaker government were conceived and incorporated without looking into political ethos and culture prevailing in Bangladesh. The provisions were too idealistic and had little appreciation of the realities on the ground.
It is noted that the 1972 Bangladesh Constitution was also found to be so ideal that it was only suitable for a "Utopian" state, and the original text had no emergency provision even during the war. Within a span of two years, it had to go through three amendments.
Inconsistencies
Experience has shown that there are many inconsistencies in many of the provisions for the caretaker government and some of them deserve mention:
First, since the executive powers of the Republic rests on the chief adviser and his advisory council (Article 58B .3), it is desirable that the administration of the defense services should come within the purview of the caretaker government.
The current split in the administration of the defense services, among the president and other ministries, by the chief adviser together with the council of advisers is not only cumbersome but also raises an element of conflict between the two institutions, in the event of disagreement between the president and the advisers on any issue relating to the defense services.
The powers of the president in the caretaker government may be specifically enumerated, as the caretaker government is "collectively" responsible to the president. The word "collective" may be spelt out clearly as to its meaning.
Second, the president of Bangladesh is not elected on a bipartisan or consensus basis among political parties represented in the Parliament. The ruling party nominates the president, who is elected by members of Parliament, in accordance with the law (Article 48.1 of the Constitution).
It is entirely at the discretion of the majority party to propose the name of the president, either a non-party person or a member of the party.
Against this background, the provision of the eligibility of the president as a last resort to hold concurrently the post of the chief adviser of the non-party caretaker government (not simply caretaker government) arguably defeats the whole purpose because the adjective "non-party" qualifying the "caretaker government" may not have any meaning at all in certain circumstances.
Third, it has not been prudent to involve retired chief justices to be eligible for holding the post of the chief adviser, an executive position. It is counter to the spirit of the doctrine of separation of powers on which the Bangladesh Constitution was founded.
Fourth, there have not been any criteria enumerated in the provision for the president to appoint a citizen to hold the position of the chief adviser, if he failed to appoint any retired chief justice or judge of the Appellate Division of the Supreme Court.
Fifth, the phrase "no retired chief justice is available" employed in Article 58C (4) lacks clarity and is confusing. The phrase is open-ended and therefore has been interpreted differently. For example, does it refer to a pool of retired chief justices or only two retired chief justices (last retired and the next before the last) as mentioned in Article 58C (3), ruling out other retired chief justices?
Finally, the powers of the chief adviser have not been spelt out clearly in relation to what the chief adviser can do, or cannot do, without the advice of the advisers. The absence of such provision has led to confusion as what "collective responsibility" means under Article 58B(2) of the Constitution.
From the above discussions it appears that many of the provisions relating to the caretaker government need drastic changes, not only in concept but also in drafting, so that they work reasonably well.
Against this background, many in the civil society suggest that a committee of legal experts drawn from all political parties may be entrusted to come up with a new draft of constitutional provisions relating to the caretaker government so that confusion or anomalies do not occur in the future. This is for the interest of all political parties, and also for the people.
Supreme Court opinion
Article 106 of the Constitution provides that the president may refer to the Appellate Division of the Supreme Court for an opinion if a question of law, which is of public importance, arises.
The demand of many political parties to hold the general election after the 90-day time limit is purported to come within the ambit of this Article. It is desirable that the president acts on it to resolve the issue.
If there is a necessity to amend or adapt the Constitution to meet the exigencies, there is nothing in the Constitution that is not permissible. In 1990, after the fall of President Ershad, extra-constitutional steps were taken, and later legalized post-facto ( after the event), by amending the Constitution.
The Constitution is, in essence, the expression of the will of the people. It is for the people and not the people for the Constitution. The Constitution is not set in stone and already it has undergone fourteen amendments. The last amendment was adopted in May 2004. Another amendment of the Constitution will not make the sky fall.