It is ironic that political parties who brought in the caretaker government provisions in the constitution in 1996 to ensure free and fair general elections have rendered the system controversial over the years.
Till now, three national elections have been held under the caretaker government system. After each of those elections, the defeated party questioned the administration's role and rejected the results, while the winning party was full of praise for the way the election was conducted.
Observers at home and abroad, however, lauded the elections in 1996, 2001 and 2008, irrespective of which party won.
When Awami League won the first election under the caretaker government system in 1996, archrival BNP and allies rejected the results alleging "Pukur Churi" (massive rigging). AL, on the other hand, described the polls as free and fair and asked the opponents to respect people's verdict.
In 2001, BNP won the election under the second caretaker government. It praised Justice Latifur Rahman-led administration for doing a good job. But AL dismissed the results as an outcome of "Sthulo Karchupi" (crude rigging).
In the third election under caretaker government in 2008, AL won a landslide. The reactions of the parties were as usual.
The controversy surrounding the 13th amendment, which deals with the caretaker government system in the charter, stems mainly from the provision that requires the immediate past chief justice to be the chief adviser--the head of the caretaker government.
The row between the parties grew intense in 2006 when the then government of BNP-Jamaat raised the retirement age of the Supreme Court judges to ensure Justice KM Hasan take the helm of the next caretaker government.
The move pitched the country into a deep political turmoil and eventually delayed the elections by two years.
Riled, the then opposition parties led by AL waged a movement saying they would not accept KM Hasan as chief adviser since he was involved with BNP in the past.
KM Hasan, however, declined to be the chief adviser when the time came. Instead of exploring the other constitutional avenues to find a caretaker admin chief, the then president Iajuddin Ahmed appointed himself as chief adviser.
AL and allies refused to participate in the general polls slated for January 22, 2007. Ten days before the election day, Iajuddin imposed a state of emergency and appointed Fakhruddin Ahmed to replace him as chief adviser.
Fakhruddin-led government, which ruled the country for two years, held the ninth parliamentary election in December 2008.
Some of its activities during the two years laid a new layer on the controversy over the caretaker government system.
Questions arose whether the nation should do away with the system. Even a petition was filed challenging the legality of the caretaker provision.
Observers have long criticised the provision for appointing former chief justice as caretaker government head. They likened it to holding out carrots for the judges of the apex court.
They feared the provision may induce the judges to work in favour of a political government.
Besides, they noted, it leaves room for superseding of judges, as the party in power would want to ensure its favoured person become chief adviser of the next caretaker government.
HOW CG PROVISIONS CAME
In 1994, when BNP was in power, a by-election in Magura was rigged in favour of its candidate.
After that, AL and allies began campaigning for the caretaker government provision in the constitution. They argued that the general elections would not be free and fair unless under a non-partisan government.
Their movement gained momentum after the Mirpur by-election, another controversial election during the BNP rule (1991-1996).
Though the idea of the caretaker provision became increasingly popular, the then BNP government ignored the demand and held a farcical general election on February 15, 1996, which was boycotted by AL and other major political parties.
After the stage-managed election, a parliament session was convened, but that lasted only 11 days. In the face of a fierce movement by the opposition, the party had to introduce the caretaker government system in the constitution.
Five years before the caretaker system came into force, an interim government led by the then chief justice Shahabuddin Ahmed oversaw a national election after the fall of autocrat HM Ershad. Even after that election, which was widely appreciated at home and abroad, AL alleged that "Sukhkho Karchupi" (subtle rigging) had been employed to have BNP in power.
WHAT CONSTITUTION SAYS (Article 58C)
3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.
4) If no retired Chief Justice is available or willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.
5) 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.