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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 177
February 13, 2005

This week's issue:
Reviewing the views
Star Law history
Rights column
Law Opinion
Fact file
Law book review
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Reviewing the views


Caretaker Government: Need for re-assessment

Muhammad Zamir

Many 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.

Articles 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.

Elections 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.

Most attach special significance to the various elements associated with elections. In this, they are consistent with conscious democracy.

Elections 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.

In 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.

The 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 patronage.

The 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 election.

This 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.

Flaws 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 a success.

This 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 Officers.

The 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.

Since 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.

The 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 political party.

They 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.

This imbroglio has assumed further complications through the recent extension of the age limit of the judges of the Appellate Division.

This 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.

Our 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.

We 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.

I 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.

Similarly, 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.

We 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.

There is also still time to consider whether some of the laws promulgated as Ordinances during the last Caretaker Government needs to continue.

Lastly, measures must be adopted to strengthen the Election Commission

As 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.

I 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.

The author is former Secretary and Ambassador .



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