Law Alter Views
Non-party, Neutral Caretaker Government
Powers of President and Chief Adviser
Sinha M A Sayeed
Surprisingly enough the 13th Amendment to the Constitution while making provisions for a balance of power between President and the Chief Adviser to the non-party, neutral caretaker government, in fact, deliberately or non, produced a kind of "diarchy", i.e., a dual administration. A careful study of the relevant articles, clauses and sub-clauses reveal such truth conspicuously.
Article 58C(11) states: "The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister, and an Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister". This is a confirmation to the proposition that the non-party, neutral CTG was modeled on the spirit of parliamentary system of government while Article 58B (2)(3) read with Article 58E, 61 produces a kind of loose diarchy with a constitutional, strong President as head of the state, and a constitutional, weak Chief Adviser as head of the CTG. If elaborated and analyzed in true perspective we find:
Article 58E reads: "Notwithstanding anything contained in Articles 48(3), 141A(1) and 141C(1) of the constitution, during the period the Non-party Caretaker Government is functioning, provision in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter signature shall be ineffective" while Article 58B(2) contains: The Non-party Caretaker Government shall be collectively responsible to the President.
It is an irony for the 13th Amendment to the Constitution that these clauses and sub-clauses, instead of ensuring a balance between President and Chief Adviser, have by enhancing the powers and the functions of the President, made the Chief Adviser and his Cabinet responsible to the newly emerged constitutionally strong President who, before the dissolution of the immediate past parliament was a constitutionally weak President under Parliamentary system of government. And, he shall again be the same from the date on which a new Prime Minister enters the office after elections to the immediate next Parliament.
Such constitutional rise and fall of the power and functions of President are in fact, wonderful, unique and unprecedented in the history of parliamentary democracy which started in 1688 in England.
Again Article 58B(3) reads: "The executive power of the Republic shall during the period mentioned in clause (1) be exercised, subject to the provisions of article 58D(1) in accordance with the constitution, by or an the authority of the Chief Adviser, in accordance with the advice of the Non-party Caretaker Government". On the other hand Article 58D(1) reads: The Non-party Caretaker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic: and, except in the case of necessity for the discharge of such functions it shall not make any policy decisions.”
Both theoretically and practically, it is not at all convincing that a constitutionally weak head of government, Chief Adviser, having a constitutionally strong head of state, President, over the head can smoothly exercise the executive powers of the government.
It is simply a paradoxical proposition.
Question further stands: who is the sole authority to determine “such necessity”? Because determination of such necessity by the Chief Adviser has a risk of being set aside by the President with a different interpretation that ultimately may lead to a deadlock in the administration.
About the routine functions of the Caretaker Government, Advocate Farooqui, in the case of Saleem Ullah v Bangladesh in 2000 (in 2000 Mr Saleem Ullah filed a writ petition challenging the 13th Amendment to the Constitution for introducing non-party, neutral CTG. The Supreme Court of Bangladesh decided in favour of the Amendment) argued: Events do not wait for decisions and least of all in foreign affairs, finance and war. This Article has been set into the Constitution to conceal the truth to divert the public mind from the things which matter. Of all the public responsibilities, that of controlling foreign affairs and of determining the issues of peace and war is at once the most delicate and the most important.” He further added: There is no scope for controlling the area of operation for the Caretaker Government. This is not a government for the limited purpose for a period of 90 days as the general conception goes on (The Daily Star).
Further attention must be given to Article 72(4) that says: If after a dissolution and before the holding of the next general election of Members of Parliament the President is satisfied that owing to the existence of a state of war in which the Republic is engaged it is necessary to recall Parliament, the President shall summon the Parliament, that has been dissolved, to meet.
Needless to say that this is very much interesting to note that under such circumstances there is no provision that Prime Minister will resume his/her office. There shall only be a Caretaker Government headed by the Chief Adviser. The past Prime Minister shall sit in the Parliament as a Member and not as a Prime Minister.
Reality again shows that if elections to Parliament are not possible because of war or an act of God in the form of natural calamities or something like that, then what shall be the consequences of the ninety days' timeframe for the CTG? Question again arises: if such situation crops up then how long non-party neutral CTG shall be confined to “routine functions” only?
Under the amended Article 61, the supreme command of the defence services shall vest in the President and the exercise thereof shall be regulated by law (and such law shall, during the period in which there is a non-party CTG under article 58B, be administered by the President). It is also found that President has been given, “an exclusive jurisdiction” to deal with the matters related to defence and it was seen how President Abdur Rahman Biswas in 1996 without having a consultation with the Chief Adviser Justice Habibur Rahman exclusively handled the military crisis in his own way by applying this very article during the functioning of the first non-party, neutral CTG after the 13th amendment came into being.
How does it sound that a head of the government in the name of “routine functions” has constitutionally been debarred from even knowing the causes of military crisis that could also have toppled his civilian government?
Therefore the recommendations are:
1) “Routine functions” as mentioned in Article 58D(1) shall be redefined by bringing about a balance in power and functions (in particular covering Articles 58E, 61) between President and Chief Adviser of non-party, neutral CTG.
2) Possibility of holding elections to parliament in case of or in the wake of war or external aggression does not apparently stand at all. Constitutional provision may be made to this effect that President's summoning of the dissolved Parliament pursuant to Article 72(4) shall also follow the replacement of non-party, neutral CTG by the party-run government with Prime Minister and his/her Council of Ministers who were in office immediately before the dissolution of the parliament. Provisions for formation of national government headed by the immediate past Prime Minister may also be considered.
Because in such situation a non-party, neutral CTG comprising all non-political and not so experienced persons in running a government cannot cope with the overall complexities and dimensions of a war in the context of national, regional and international policies, diplomacy and relations. It is only possible and desirable on the part of a political government.
And this can be done through a further amendment to the 13th amendment to the constitution. Now it is up to the members of parliament, present or future, as what to do, how to do and thus put things on the right track.
The writer is a Lecturer, Newcastle Law Academy, an Affiliated Institute of London University and Former International, Publications & Publicity Secretary, Central Working Committee of Jatiya Party.