<%-- Page Title--%> Law opinion <%-- End Page Title--%>

December 5, 2004

Rekindling an old debate

How effective a Caretaker Government can be?

Aminul Hoque & Kawser Ahmed

After we have lost parliamentary democracy in 1975, it took long 16 years and blood shedding struggle to regain it. In 1990, after removal of the then President H.M. Ershad, Chief Justice Md. Shahabuddin Ahmed was appointed as the president of the country to hold a free & fair election which he successfully conducted. Since then the elected government was supposed to hold the next general election.

But wide rigging in various parliamentary by-elections, especially in Magura, led to the demand of making an arrangement of holding general election under the authority of a non party caretaker government and after a long political confrontation article-58 of our constitution was amended by inserting various provisions for such a non party caretaker government in article 58(B, C, D, E). Article 58B(3) provides that all the executive power of the republic shall be exercised by the chief adviser in accordance with the advice of the non party caretaker government .

The combined effect of article 58D(1) &58D(2) is that the non party caretaker government is empowered to take all measures to assist the Election Commission in holding free, fair and peaceful election and in taking such measures, the caretaker government does not have the limitation relating to policy decision provided in article 58D(1). The provision of article 58d(2) is not in any way controlled by the provision of article 58D(1). So the caretaker government enjoys some unfettered powers to perform any function to ensure the environment for holding free & fair election.

As the non party caretaker government is not any elected body, they are only responsible to the president [article 58B(2)]. Article 58C provides that immediately retired chief justice of Bangladesh and in his unwillingness, any other retired Chief Justice or retired justice of the appellate division has to be appointed as the chief adviser of the caretaker government. Being the judges of the highest judiciary is always considered to be very prestigious and honorable portfolio. It should not be exaggerating to hold that after introducing the provision of caretaker government in this country, this office has got importance of a different dimension. Now every judge of the appellate division is a potential head of the government for a specific period.

The judges, being a human being, must have, in person, some political ideologies which do not seem to affect the due discharge of their duties. But after the 13th amendment, our politicians have seemingly become desperate to have like-minded person in the office of chief adviser. As a result, there have been a lot of incidents like more appointment of judges (who are alleged, by some quarters, to be ineligible and inefficient), non- confirmation of the appointment of those who are considered to be of different political beliefs and promotion of the judges belonging to similar ideology breaking the rules of seniority. As presumed by members of the civil society, the underlying objective for unstable practice in relation to appointment of judges is that politicians want to have a like-minded person as a chief adviser. If the aforesaid statement is true, such practice undoubtedly is very much opposed to the benevolent concept of non party caretaker government and harmful for the image of the supreme judiciary.

Though this kind of untoward incidents are not new in this country but after the inclusion of caretaker government provision, the politicians have become more uncompromising in this regard. In the previous regime of B.N.P nine persons were appointed without consultation with the then Chief Justice Shahabuddin Ahmed. But after he objected about two of those judges, the government cancelled their appointment.

Afterwards in 1999, two high court judges were promoted to appellate division superseding two other senior judges of HCD allegedly for their different political identities. This time also there was allegation that no consultation with Chief Justice was done. Consequently there was agitation and attempt of negotiation but all such attempts went in vain. After coming to power in 2001, BNP government appointed one of those superseded judges as chief justices again superseding two senior judges in the appellate division and their justification was that by this they have given due treatment to a person who was unduly deprived of his entitlement. We have all reason to believe that such practice of our politicians is leading to a situation when only identical political belief will be the only eligibility for appointment as a judge in the apex judiciary.

Bangladesh is not the only country where on various occasions judges in apex court have been appointed and promoted on political consideration. The trace of such practice can also be found in countries like UK, USA etc. But in those countries no compromise has yet been made in relation to the qualification and integrity of the proposed persons and no where it has been alleged, as much as is made in this country, that almost unqualified persons are appointed or quite eligible person has been denied of proper position. In the aforesaid countries, government may decide to appoint a party man as judge in higher judiciary for rewarding him for long term service to the party provided that he possesses all necessary qualifications and as soon as he is appointed, his relation with that party ends. The new judge is expected to be quite neutral while discharging his duty. In contrast, all the politicians in our country seem to be expecting that the judges, appointed or promoted during their tenure, will render their support to them on every occasion whatever it might be, even after their retirement while occupying another portfolio like chief adviser. Resultantly, it is alleged that to select a very loyal party man for such post, politicians are even ready to waive some crucial criteria like eligibility and integrity.

Bangladesh falls in that category of the countries where the constitution has been given supremacy over the legislature and the highest judiciary of the country has been entrusted with the duty of supervising and maintaining this supremacy. So from the very beginning, the office of the judges of Bangladesh Supreme Court became very crucial in establishing democracy in this country in its true sense. The preamble of the constitution of Bangladesh says: "it shall be a fundamental aim of the state to realize through the democratic process a socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social will be secured for all citizens." To ensure rule of law, fundamental rights, equality and justice in a society the most crucial role is played by the court of law.

Accordingly the supreme court of Bangladesh has been accorded the power to enforce certain fundamental rights, embodied in chapter-3 of the constitution which has been given direct enforceability through the said court. Indeed after reintroducing parliamentary democracy in 1991, our highest judiciary has done some commendable jobs in ensuring fundamental rights, public interest and, importantly, to put effective restrictions upon the arbitrary exercise of the executive power. Against all the deprivation, corruption, suppression of the government or any other, the judges of the highest judiciary remain as the last hope for the nation. But when it is vehemently alleged that ineligible & inefficient persons are appointed there, we are afraid that we are losing our last ray of hope. We have all reasons to apprehend that such person may not be able to act going beyond all kind of fear and favor.

In a developing country like Bangladesh, both peoples' participation and the existence of a strong judiciary are equally important. To ensure peoples' true participation in democracy, the concept of caretaker government has been introduced. But it is now evident that influence of politics is undermining the very concept of caretaker government and posed a severe threat to neutrality and efficiency of our apex judiciary vis-à-vis democracy. More to the point the politicians seem to be devoted not to separate judiciary from the executive. The caretaker government, which was made to strengthen democracy, has become a threat to it. If necessary, the provision of caretaker government should be amended. And obviously before everything, the judiciary should be made totally independent.

The authors have graduated from Department of Law, University of Dhaka.