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Cover Story

Can the Caretaker Government Do its Job?

Aasha Mehreen Amin

Can the Chief Advisor prove his neutrality?

Things are happening very fast in Bangladesh; even the media is finding it hard to keep up. Even as we were reeling from the devastation of October 27 and 28 when the streets became burning battlefields, a controversial President, jumped acceptable constitutional options and made himself the Chief Advisor of the Caretaker Government. There was an initial hue and cry from the Opposition, from eminent members of the civil society, from dissidents of the immediate past government and from legal experts - regarding such arbitrary action, which was obviously in line with the four-party coalition's desires. But then, much to everyone's surprise a previously belligerent former Opposition, hell-bent on not accepting a BNP-chosen man as the head of the interim government, seemed to go on a new route altogether. They said that they would accept the President's chiefdom provided that he prove himself to be a neutral head of the Caretaker Government and provided he implemented the 11-point demands the oOpposition had drawn up. Among the demands were a reconstitution of the Election Commission, which meant the removal of the much-talked about triad - Chief Election Commissioners and his three colleagues, rectifying the voter list and depoliticising the administration and state machinery. This sudden show of realism from the Opposition was a great relief to the nation although its threat of new agitation after the November 3 ultimatum if these demands were not met, left a lingering unease.

The oath-taking of 10 advisors of the Caretaker Government went pretty smoothly although the fact that they were chosen from lists given by the major political parties gave the possibility of future political squabbling. Eyebrows were raised over the frail Chief Advisor's taking over five major ministries - defense, home, foreign, education and establishment (and more) and dealing the remaining ones to the other advisors. Even so, the general public was relieved that at least the Caretaker Government had finally been formed.

But whatever semblance of normalcy the appointment of the advisors - all of them highly respected in society - had brought, was soon to be disrupted, this time by the four-party coalition. BNP and Jamaat-e-Islami leaders cried foul as soon as it was known that two of the advisors (whom obviously they did not nominate) Sultana Kamal, an advocate and human rights activist and CM Shafi Sami, a former bureaucrat, had gone to Sheikh Hasina's house in Dhanmondi in a private vehicle. The allegation was that they had 'secretly' gone to the leader of the Opposition to conspire God knows what. Thus the neutrality of the advisors was to be held in question and they should be immediately removed. It was more than obvious that the four-party coalition leaders were coming up with any excuse, no matter how flimsy, to make the appointments of the advisors, controversial. The advisors later categorically stated that they had gone on an official visit at the instruction of the Chief Advisor, following a consensus decision among the advisors. It had been decided that these two advisors would go to Hasina to convince the 14-party combine not to go for any tough agitation programme upon the expiry of the November 3 ultimatum, as the Caretaker Government would be taking measures to reconstitute the Election Commission. The visit proved to be a major breakthrough as it served to mellow down the 14-party alliance and Hasina agreed not to go ahead with their November 3 agitation programme. A major crisis had been averted. The reason they did not take the flag-bearing official car was because they were going to attend a friend's daughter's wedding after that, which was a private visit. The BNP and Jamaat leaders also came up with another ploy to discredit Kamal by saying that she was involved with Jatiyo Oikkyo Mancho, a platform formed by Kamal Hossain and joined by Dr. Baddruddoza Chowdhury. Later it was found that the Sultana Kamal they were talking about was the wife of Gono Forum leader Mofijul Islam. The BNP and Jamaat did not detract their accusations and kept on demanding the two advisors' expulsion even though their allegations were unfounded.

The council of advisors has found it difficult to function effectively

Although the BNP and Jamaat have screamed themselves hoarse, the need for everything to be done as per the Constitution to make sure that a free and fair election does take place, their actions cast doubt about their sincerity. First they made sure that their man, the President, would become the Chief Advisor, disregarding the other constitutional provisions. Now despite a consensus among legal experts, ordinary citizens, the Liberal Democratic Party (LDP), the newly formed offshoot of BNP, and the 14-party alliance that the Election Commission has to be reconstituted, (which essentially means the stepping down of the Chief Election Commissioner (CEC) and his three colleagues, plus a corrected, authentic voter list), the four-party coalition has consistently expressed their opposition to such measures. How else is there going to be a free and fair election if the basic requirements of an independent, neutral Election Commission and real voter list are not assured?

The BNP-led coalition, in fact, has announced a movement of their own if the CEC is pressurised to step down, something they say is unconstitutional. The CEC, meanwhile has changed his mind about considering the request of the Caretaker Government to resign, which he expressed on November 2, going back to his old obdurate stance of refusing to resign, echoing the former ruling parties' contention. This, despite the urgings and pleadings from all quarters of society, political and non-political. The council of advisors has discussed three options - to request the CEC, on behalf of the Caretaker Government, to step down; to form a Supreme Judicial Council to look into the capability of the CEC to hold the post; and to initiate a fresh appointment of election commissioners.

The Awami League has alleged that the administration is still being remote-controlled by Hawa Bhaban

AL Secretary General Abdul Jalil's accusation that the President's office is still being run by remote control by Hawa Bhaban, meaning the four-party coalition, does not seem so outrageous considering the recent developments following the formation of the Caretaker Government. The workings of the Caretaker Government have been going far from smoothly. The advisors were not consulted or even informed about big decisions such as transfers, and changes in postings in the administration. The Chief Advisor has been taking all decisions with his former secretary, a BNP loyalist, close at hand. The advisors got to know about the decisions from television news. The advisors had proposed the formation of advisory committees to expedite the work of the Caretaker Government but even this went through unnecessary delay. Right after the Caretaker Government was formed a few transfer orders of some secretaries were given but they were either reverted back to their original posts or given better position. Later 33 SP-level officers and a few more secretaries were transferred although the 14-party alliance are far from being impressed, saying that these are merely eye-wash moves.

The only noteworthy moves the advisors have been able to make are asking relevant bodies to come up with documents to investigate the corruption in the power sector and suspending all new projects taken in the current fiscal year by the previous government that did not fulfil strict economic criteria.

There are, in fact, many allegations of corruption against the past government. The three-month period of the Caretaker Government would have been a good time to investigate the alleged corruption of former ministers, bureaucrats and beneficiaries of the previous government. But even this avenue of transparency has been blocked. Former law minister Moudud Ahmed moved against a High Court order to get the functions of some Anti Corruption Commission officials stayed up to January 21. The order stays the function of 33 anti-corruption officers who are deputy directors in charge of 33 sections of the ACC. So in effect the work of the whole institution would come to a halt as a result of the Appellate Division order. This would mean that in effect the ACC would not be able to function during almost the whole tenure of the Caretaker Government.

The most disturbing turn of events is the attitude of the EC, which seems to still be under the delusion that it is under the jurisdiction of the previous government. Its inflexible stance is quite mysterious. The EC did not take any measures to correct the errors in the voter list which has 9.13 crore voters. The unusual rise in the number of voters gave way to controversy. The EC is now saying that there is no time to make the corrections and the flawed list will be used in the upcoming elections.

CM Shafi Sami was one of the two advisors of the Caretaker Government who went to Sheikh Hasina to convince her to abandon a tough agitation programme

With the Chief Advisor in a noncommittal mood, the advisors left frustrated and virtually powerless and the Chief Election Commissioner's persistent intransigence, the hope for a fair election has been growing dimmer. Nobody in their right mind can condone the AL-led 14-party alliance's violent street agitation on October 27 and 28 ( joined in by the four-party coalition), which left 29 people dead. The possibility of another bloody showdown between the rival parties after the November 11 deadline is indeed a chilling thought. BNP and Jamaat, along with their student wings, have already expressed their vehemence about fighting the alliance with equal vigour, on the streets. Meanwhile, we the people of this nation are again left helpless, no matter how much we abhor such destructive politics, whatever party is engaged in it.

In so far as the 14-party alliance demands logical, legitimate reforms to ensure a free and fair election, the public is with them. It would truly be a sign of great political maturity and patriotism if the 14-party alliance exercises restraint and refrains from violent confrontations with their opponents. That will surely win the public over. As citizens of an independent country, we have the right to vote for anyone we think fit. We must be able to exercise this right without intimidation and without the nagging doubt that somehow our vote will be manipulated or falsified. For the country that is known as a democratic one, a fair election is the only alternative. We cannot accept any other option.

FAIR ELECTIONS

The Prerequisites

Kajalie Shehreen Islam

Electoral warfare this year begins long before the polls . . .

The concept of a neutral Caretaker Government (CG) originated in Bangladesh from a lack of general agreement among competing political parties regarding accepted means of changing government through the holding of free and fair elections. Since its inception in 1991, three national elections have been held under this system. This year, however, the CG itself, along with what is supposed to be an independent Election Commission (EC), have become the subject of great controversy. So much so, that questions are being raised as to whether elections will actually take place and, if so, whether they will be free and fair.

It possibly all began with who would head the next CG. Justice KM Hasan, the last retired Chief Justice after the immediate past government, the BNP-led four-party coalition, extended the age of retirement of Supreme Court judges, was the constitutional choice. But due to his past affiliation with the BNP and the somewhat underhand manner in which he was left as the first candidate for the post of Chief Advisor of the Caretaker Government, the then 14-party opposition headed by the main opposition Awami League (AL) refused to participate in the elections under a Chief Advisor who was also a BNP-appointed President . What they probably did not anticipate at that point was the ultimate assumption to the post of BNP-nominated President, Prof. Dr. Iajuddin Ahmed.

According to Article 58(C) of the Constitution of Bangladesh, candidates for the post of Chief Advisor are firstly, the last retired Chief Justice, or, if h/she is unavailable or unwilling, the second last (sub-article 3); secondly, the last retired judge of the Appellate Division or, if h/she is unwilling, the second last (sub-article 4); thirdly, a citizen of Bangladesh, appointed by the President upon consultation with the major political parties (sub-article 5); and, if none of the above is possible, the President him/herself will assume the position (sub-article 6).

“The President’s assumption of office was not strictly constitutional,” says Rokonuddin Mahmud, barrister and human rights activist. “The sub-articles 2 to 5 were not tried. The President could have assumed power only if he had tried these, including all former Chief Justices under the age of 72. Only then could he have come to this conclusion. It is absurd for a man to assume two positions.”

Eminent jurist Dr. Zahir agrees that sub-articles 3 and 4 were not exhausted. “But the President went for a discussion with the major political parties regarding sub-article 5,” he says. “The AL did not suggest any names. The President assumed power under sub-article 6 and the AL accepted it. This has averted a great disaster for the nation.”

The assumption of President Iajuddin Ahmed of the post of chief advisor of the CG was both legally and morally wrong, says political analyst Nazim Kamran Chowdhury. “He’s a party man and he has not followed the Constitution. There are so many steps laid out in the Constitution.” One has to see the spirit in which the law regarding the CG was framed, says Chowdhury. It was to be a totally non-party neutral body, with the emphasis in our politics historically on Chief Justices taking an independent position. "So we are looking at a pool of retired Chief Justices. Under the Constitution I don’t think it is limited to the last two retired Chief Justices. The President should have continued over the rest of the list of other Chief Justices if they were otherwise qualified.”

In the very first meeting with the Secretaries General of the BNP and AL the President proposed himself, says Chowdhury. Even before raising the issue of a neutral citizen. "He could have given them a list of names to select, he didn’t -- he went straight to himself. By this action he proved that he has not acted according to law.”

“Morally,” says Chowdhury, “the President knows that he is a party nominee and therefore not a non-party man. He has been associated with the BNP throughout his career, making his non-party status questionable. Also, he’s a very sick person, incapable of working for more than two or three hours a day. He is handled by doctors and minders so his exposure to current political compulsion is very limited. He should never have considered himself for two vital roles."

The formation of the CG in an extralegal manner, that is, the appointment of the advisors through lists given by the major political parties is also a cause for concern, says Chowdhury. "The moment political parties give a list the government is a party government. This CG in people’s eyes is not a non-party government but an all-party government, with representation from all political parties.”

However, the composition of the advisors of the CG is a good one, Chowdhury believes, comprising people with integrity, patriotism and good track records. "These qualities are reflected by the fact that within a very short time the advisors have been able to demonstrate their desire to create circumstances for a free and fair election,” says Chowdhury.

“But,” he continues, “I fear that the President and Chief Advisor, is still being controlled by his party and he is not giving the desired support to his own colleagues in carrying out their responsibilities. I don’t think the President is fully aware of the consequences of his actions or of the complications that these will lead to.” The Constitution says that the advisory council is collectively responsible to the President, says Chowdhury, so, as the Chief Advisor, he is bound to listen to the advice of his colleagues in the CG.

“Secondly, the Constitution says all actions taken by the Chief Advisor shall be done on the advice of the CG. But we see the Chief Advisor in matters of postings and transfers is acting arbitrarily on advice by bureaucrats put in place by the previous government while the advisory committee is being kept in total darkness. Unless in the next few days the President realises the situation, we are headed into a crisis that will take a direction that we do not know,” warns the political analyst.

Prof. Dr. Iajuddin Ahmed is a BNP-nominated President and it will be difficult for him to act as a non-partisan CG Chief Advisor, says Barrister Rokonuddin Mahmud. “Being a party nominee, he is handicapped to start with,” he says, “and the task before him is a Herculean one. He must prove his neutrality by meeting the demands made by the 14-party alliance. Otherwise people will find it difficult to believe in him,” says Mahmud.

“We will see how neutral a body the CG is,” says Dr. Zahir. “The grievances of the AL relating to an effective neutral administration should be addressed by the CG as far and as soon as possible. We do not want any further disruption of our economic activities.”

The first and foremost demand, however -- reconstitution of the Election Commission (EC) and removal of the Chief Election Commissioner (CEC) MA Aziz -- might very well be the point of deadlock. The BNP-led four-party alliance, perhaps avenging their loss of Justice KM Hasan as Chief Advisor, has decided to back the CEC -- who has himself refused to resign, even if asked by the CG -- on the basis that it is a constitutional post and that he is performing competently and neutrally. Most neutral citizens and legal experts, however, seem to agree with the demands for a reconstituted EC.

“Reconstitution of the EC will be the first test of the Chief Advisor,” says Barrister Rokonuddin Mahmud.

The three-month period of the Caretaker Government would have been a good time to investigate corruption during the last government's tenure

“The AL has asked the CEC to resign,” says Dr. Zahir. “If this is not done, a judicial inquiry should be made.”

“Any future election under the present EC will not be viable or credible,” says Nazim Kamran Chowdhury. “I understand that the position of the CEC is a constitutional one and that his removal has to be through a constitutional process. However, I do not think requesting the CEC to step aside for the greater interest of the nation would in any way be going against the Constitution. At the end of the day, the Constitution is for the country. If the security and stability of the country is at stake, the Constitution becomes secondary. We have seen this in the past in our country and are seeing it in the present in other countries,” says Chowdhury.

Many people, however, are cynical about whether this is in fact possible, whether the faulty voter list can be fixed in such a short time and whether a free and fair election will ultimately take place.

“Of course it can be fixed,” says Dr. Zahir. “If I were in charge, I would appoint 1,000 workers who would go house to house and everything could be fixed in two weeks. You just need to make the effort.”

Barrister Rokonuddin Mahmud agrees that the problem can be fixed. “You just have to have earnest,” he says.

The Awami League-led 14-party alliance asked for resignation of advisor Justice Fazlul Huq after his comments to the media demanding why the advisors have to prove their neutrality

According to Nazim Kamran Chowdhury, resolving the crisis is “fairly simple”. “First, the EC must be reconstituted,” he says, “so that in public view the reconstituted EC seems neutral and well-made. The new, reconstituted EC will tell the people what it can and cannot do in 90 days in the way of reforms, which I think would be more or less acceptable to most people. With regard to the voter list,” says Chowdhury, “a reconstituted EC can decide whether it is feasible or partially feasible given the time frame.”

“We must also keep in mind that the 90-day period is not sacrosanct,” points out Chowdhury. “The Constitution allows the EC a further 90 days if elections cannot be held in the first 90 days due to causes resulting from ‘an act of God’." Though an "act of God" is interpreted as a natural disaster, according to Chowdhury, the present circumstances may be stretched to be included in this version with the reconstituted EC referring it to the Supreme Court.

“The other main factor involved in carrying out a credible election,” says Chowdhury, “is putting neutral officials in the right places. I have the fullest of confidence that if the President allows the present council of advisors a free hand in carrying out this job, they can do it to the satisfaction of most people.”

Politicisation of the administration, lack of indepenence of the judiciary and media autonomy have all served to make things even more difficult, agree legal experts and political analysts.

“Bangladesh Television (BTV) is broadcasting even today as the mouthpiece of the former Prime Minister,” says Barrister Rokonuddin Mahmud. “Publicity is still pro-BNP. In order for things to improve, changes must be made. For one, lock, stock and barrel of BTV has to change. And because there is no independence of judiciary, any issues regarding the EC which will go to the Supreme Court will be affected, the petitioner will be handicapped.”

The Chief Election Commissioner has consistently refused to resign

“The President’s office must also be changed entirely,” says Mahmud, “because everyone in it was appointed by the former Prime Minister. The President must make his own selection.”

Changes have begun to take place, however, with some reshuffling taking place in the administration and police and the portrait of former Prime Minister Begum Khaleda Zia finally being taken off the walls.

But, regarding the primary demands of reconstitution of the EC and removal of the CEC, the advisors to the CG in their turn are having a difficult time dealing with a CEC who will not budge, major political parties who never see eye to eye and even legal experts who disagree due to their alignment with the parties. The options before the advisors then, in the event that the CEC does actually not resign, are the formation of a Supreme Judicial Council for removal of the CEC, or else the appointment of new election commissioners to balance out the EC.

“The next few days will say whether the Caretaker Government’s advisory council will be able to fix things,” says Nazim Kamran Chowdhury. “The President is a man of frail health, divorced from day to day running of the affairs of the State. I don’t know if and when he will realise the situation. If he does, we can come out of this; if he doesn’t, we will sink deeper into the quagmire.”

But, while the last three elections under the respective Caretaker Governments took place with more or less political consensus and public support, why have this year’s elections raised such a storm of controversy?

“There is too much at stake politically,” says Nazim Kamran Chowdhury. “In the last five years, we have seen politics disappear and in its place we have seen a plunder of national wealth by a combination of so-called politicians or people in power and bureaucrats. These people cannot afford to lose an election. In previous years and elections,” says Chowdhury, “a loss would have meant losing the right to govern. A loss under the present circumstances would lead to a loss of ill-gained wealth and much more. So, for the people in the immediate past government and for people associated with them, the stakes are too high and they will ensure, or at least try to ensure, that all measures are taken to improve their chances of winning the next elections.”

More than being about governing, politics, especially in our country, always comes down to that one word -- “power”. Be it the opposition who will do everything to go to power, or the ruling party who just can’t let go, being -- and staying -- in power means more of everything, from financial gain to other personal advantages and benefits. This year, even before our parties’ post-electoral syndrome of rejecting the victory of whoever wins the polls, we have come to a point where the taking place of the elections themselves, especially free and fair ones, has become iffy. Again, thanks to the perpetual warfare of our political parties. While they wage out their never-ending battle, the people watch, wait and wonder about how they will cast their ballots, and as and when they do, will it have any impact on their lives .

Towards a Fair Election

Reconstitution of the Election Commission, including removal of the Chief Election Commissioner
Updating of the faulty voter list
Changes in the administration, putting in place neutral officials, as well as changes in the President's own office
Autonomy of media
Autonomy of the President and Chief Advisor