Government: Need for re-assessment
are concerned with regard to the constitutional arrangement
that will guide the electoral process in Bangladesh in
the last quarter of next year. The issue of caretaker
government has assumed particular importance given the
serious misunderstanding and polarisation that exists
today between the leading political parties in this country.
7 (1) and 11 of our Constitution sets forth the ideal
situation which will guarantee effective participation
of the people in a free and fair democratic political
process. There is almost an inspirational element in the
idealistic nature of their wording.
have always been considered as important in Bangladesh.
The ordinary citizen, might sometimes be functionally
illiterate, but does not hesitate to examine various factors
related to the democratic process.
attach special significance to the various elements associated
with elections. In this, they are consistent with conscious
have always been crucial determinants in our history.
In 1954 and 1970, they not only served to identify unacceptable
factors in our national life, but also contributed towards
an entirely new approach in the political horizon. The
electoral arrangement, over time, has also served as a
means for legitimising informal usurpation of power. Various
coups have been followed by so-called multi-party elections
to bring about a representation of legitimacy. The administrative
machinery, on such occasions was shamelessly used to manufacture
the desired result.
1986, during the Fifth Parliament, a general consensus
had surfaced on the need for putting together a format
whereby free and fair elections might be ensured. The
eventual articulation of this concept had to wait however
for another ten years. The post-Magura scenario and the
February 1996 election laid bare the inabilities of the
political party and the Election Commission in being able
to ensure impartiality. The concept of the Caretaker Government
which had been derided as being suitable only in the minds
of innocent children and lunatics was born. The 13th Amendment
of the Constitution introduced the Non-party Caretaker
Government with a view to ensuring free and fair election
to the Parliament. Two elections have since been held
under the Caretaker principle in 1996 and 2001. The term
Non-Party was used to connote composition of Advisors
who are not connected or affiliated or associated with
a political party.
new arrangement also envisaged a scenario where the caretaker
government would not initiate new policies or legislation
or make commitment for new or large expenditures because
it lacked the people's mandate. It was also connoted that
conventionally, a caretaker government, despite having
legal power, would not only desist from exploiting its
position by implementing any controversial new policy,
but also refrain from new and ad hoc appointments, redefining
the character of the services and the duties of posts,
changing the status and rank of Officials or deploying
of Officials in a manner that might be construed as political
primary and critical function of this new arrangement
was to provide to the Election Commission "all possible
aid and assistance.. for holding the general election
of Members of Parliament peacefully, fairly and impartially".
In this regard, the Election Commission would be dependent
on the executive government for its conducting of the
innovation within the institutional electoral process
was seen as necessary because of the mistrust that existed
within the system. It was viewed that such a step would
be the best way to avoid situations whereby outgoing governments
(in the period between the end of term of an elected government
and elections) undertook steps and major policy decisions
that might result in future elections being in their favour.
in the system however surfaced quite soon. President Abdur
Rahman Biswas underlined the role of the Presidency and
his control over the Armed Forces through the sacking
of the Chief of Army Staff. This was done despite the
presence of a Chief Advisor and a Council of Advisors
belonging to a Caretaker Government. The evolving crisis
was fortunately contained through the patience and the
maturity of the Chief Advisor. The caretaker Government
went on to demonstrate that free and fair elections could
be held despite provocations, given full commitment of
those charged with the responsibility of doing so. International
observers and all Parties agreed that the election was
was also possible not only because of the neutrality of
the Caretaker Government but also due to the responsible
functioning of the Election Commission and its Returning
whole approach towards neutrality was however greatly
affected in 2001, with the undertaking of controversial
administrative decisions by the Caretaker Administration.
These were policy decisions and have been identified by
some analysts as being beyond their mandate.
then, debate has continued as to whether the Constitution
gives The Caretaker Government authority to overturn,
review or annul orders and decisions of an outgoing elected
government. Some jurists have claimed That the Caretaker
principle permits such overhaul, if they feel that this
will facilitate a fairer election. Others have pointed
out such a decision contains potential for subjectivity
which might in turn raise questions about objective neutrality.
election in 2001 also raised another significant issue-
the role of the armed forces representatives employed
on electoral duties. We have already seen Awami League
allegations that their associates and workers were targeted
as 'potential trouble makers' and consequently restrained
from active participation and campaign on behalf of their
feel that this affected election results. Election observers
also noted that in some cases representatives of the Armed
Forces having been 'empowered with police and magisterial
powers' also entered election centres. This generated
unnecessary controversy with civilian Returning Officials.
imbroglio has assumed further complications through the
recent extension of the age limit of the judges of the
is being interpreted by the Opposition as part of the
BNP agenda to ensure that a particular person heads the
next Caretaker Government. Such a measure is being perceived
not only as negative and predicated on presumptive neutrality
but also as a source of erosion of confidence.
general election is not very far away. We must accordingly
take necessary steps to ensure that the Caretaker process
does not suffer from unnecessary debate.
must also remember that the Chief Advisor has to enjoy
the confidence of both the Treasury Bench as well as the
principal Opposition Party in the Parliament.
believe in the interest of national unity and compromise,
the president should initiate a process where discussion
can take place with regard to all possible alternatives
as stated in the Constitution. This should be the first
step to overcome any possible deadlock.
consistent with the spirit of neutrality, the selection
of the Advisors should be made on the basis of lists provided
by different political parties to the Chief Advisor. These
lists should include the names of those persons who are
acknowledged as being genuinely neutral, not involved
in any manner with any lobby or interest group that might
benefit from the victory of any particular Party and not
expect to be appointed to any high Office during the term
of the next Parliament. In such a situation, they will
enjoy public confidence.
must also examine how to ensure that the President remains
above controversy. This is particularly necessary with
regard to the existing division of executive powers as
envisaged in Article 58 E.
is also still time to consider whether some of the laws
promulgated as Ordinances during the last Caretaker Government
needs to continue.
measures must be adopted to strengthen the Election Commission
has been done in South Africa and India. The primary task
of conducting election rests with them. The situation
becomes that much more sensitive given the fact that a
new Chief Election Commissioner will be appointed (on
the retirement of the incumbent) within a few months.
It is essential the person chosen is not identified with
any special interest group. The independence of the Commission
also needs to be strengthened by placing the services
of all Officials in the Election Commission Secretariat
directly under the Chief Election Commissioner. They must
understand that they will report to him and that he is
their administrative head, responsible for their future
promotion or disciplinary action. Similarly, the Election
Commission must enjoy budgetary independence.
believe that time is of the essence. We must all approach
this question without prejudice or pre-conceived notions.
The Government should also refrain from making provocative
statements that if necessary, through brute parliamentary
force, they will rescind the Caretaker system and force
the holding of the next election under the present Government's
supervision. That is no solution.
author is former Secretary and Ambassador .