Non Party Caretaker Government Under the Constitution of Bangladesh

Scope and object of the Research Paper

Through the hard working on Caretaker Government in Bangladesh, I found that sometimes to help the people in legal matter and sometimes misuse of this provision. I have discussed the nature, history, laws, good side bad sides, and also given recommendations about the preventive detention.

This report is prepared as requirement of the LL.M  program of the department of Law, Northern UniversityBangladesh.

On the basis of the analysis and interpretation of the findings some policy measures also been suggested. The information is invaluable for future strategic decision n the work place. The result of the study has higher implications for other company.

Methodology

1. Historical Study
2. Analytical Study
3. Empirical Study

Availability of Materials

Law enforcement and intelligence agencies often have solid, actionable intelligence about a terrorist threat, but the information is not of the sort sufficient to secure a conviction under existing laws. In those circumstances, what should be our response.

I have collected information from various books, newspaper such as constitutional laws Bangladesh, Constitution Constitutional and politics. I have also collected information from the writers of Md. Abdul Halim, Nazim Ahmed, Shamim Ahmed and various writers books and articles.

 Introduction:

One of the more interesting constitutional innovations of recent times is the Bangladeshi Non-party caretaker government. This is covered in chapter IIA of the Bangladesh Constitution.[1]

      A Unique feature of the Constitution of Bangladesh is the provision of holding general elections under a neutral, non-party Caretaker Government. But after 15 years of the introduction of this innovative system and holding three general elections since 1991, the system is still not perfect. There is still controversy over the procedures of appointing the Chief Adviser of the Chief Adviser of the caretaker government, the powers and function of the President and the Chief Advisor during the caretaker administration. Question has also been raised how far this system would remain effective in a political culture of mistrust, intolerance and power-hunger among political parties.[2]

The caretaker government of Bangladesh is a form of government system in which the country is ruled by a selected government for an interim period during transition from one government to another, after the completion tenure of the former. As the outgoing government hands over their power, the caretaker government comes into place. The main objective of the caretaker government is to create an environment in which an election can be held in a free and fair manner without any political influence of the outgoing government. The head of the Caretaker government is called the Chief Adviser and is selected by the President, and the Chief Adviser selects the other advisers. The administration is generally distributed between the advisers. The Chief Adviser and the other advisers are committed for their activities to the President.

The Chief Advisor is the last retired Chief Justice. The other advisors cannot be members of parliament, cannot be running for election, cannot be members of a party and must be under seventy-two years of age. This mixes community specialists with a judicial specialist. The constitution grants the Chief Advisor and Advisors the remuneration and status of the Prime Minister and Ministers respectively during this period.[3]

Historical Study:

Bangladesh is a parliamentary system with a largely ceremonial President who is appointed by the Parliament. The Executive is embedded is the Legislative, similar to the Australian Westminster style systems.

In Australia the caretaker convention is that the Government dies not do anything odd, unusual, or out of the ordinary during an election period in relation to government In most of these convention instances they remain valid only as long as someone diesn’t break them.

For instance the convention prior to 1975 in Australian parliament was  that the States would appoint a Senator of the same party as an outgoing one. This did not happen twice in the run up to the dismissal and soon after a constitutional amendment came down forcing this behavior.

Presumably, a Bangladeshi government did not honor the caretaker convention, and the Bangladeshis, unwilling to trust any party machine with the caretaker convention, took over the running of government themselves during period.

The Non-party Caretaker Government is headed by a Chief Advisor who  adopts the role of prime Minister and advises the President as head of the Executive. The Chief Advisor and up to ten other non-party advisors comprise a citizens executive cabinet and are appointed by the president.

The Chief Advisor is the last retired Chief Justice. The other advisors cannot be members of parliament, cannot be running for election, cannot be members of a party and must be under seventy-two years of age This mixes community specialists with a judicial specialist.

The constitution grants the Chief Advisor and Advisors the remuneration and status of the Prime Minister conventions in Australia which implies no policy decisions will be made by in interim government, The Bangladesh constitution entrenches this requirement and the Non-party Caretaker Government is excluded from making policy.

History of Bangladesh’s Non-party Caretaker Government:

The Caretaker Government Act was passed by the 6^th Parliament as the 13^th amendment to the Constitution on May 25, 1996. It came about as a result of a two-year opposition movement led by the Awami League, Which began in earnest after the ‘rigged’ by election in Magura un March 1994 and peaked following the farcical general elections conducted under the BNP government in February 1996. Apart from being a solution that was the demand of the political parties, especially the ones in opposition, the caretaker system also enjoyed high public acceptability from its very inception. Whatever faith the electorate had on a political government’s desire or ability to hold free and fair elections had been shattered by the events of February 1996 and the opposition’s assertion that a fair election was only possible under a non-party caretaker government fount high resonance among the public.

History of World’s Non-party Caretaker Government:

The democracy of Ancient Greece was a nonpartisan, direct democracy where eligible citizens voted on laws themselves rather than electing representatives.

Historians have frequently interpreted Federalist No. 10 to imply that the Founding Fathers of the United States intended the government to by nonpartisan. James Madison defined a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, to the permanent and aggregate interests of the community.” As political parties had interests which were adverse to the rights of citizens and to the general welfare of the nation, several Founding Fathers preferred a nonpartisan form of government.

The administration of George Washington and the first few sessions of the US Congress were nonpartisan. Factions within the early US government coalesced into the Federalist and Democratic-Republican parties. The Era of Good Feeling, When the Federalist party collapsed, leaving the Democratic-Republican party as the sole political faction, was the United States, only experience with a single-party system.

The Non-Partisan League was an influential socialist political movement in the United States, especially in the Upper Midwest, particularly during the 1910s and 1920s. It also contributed much to the ideology of the former Progressive Party of Canada. It went into decline and merged with Democratic Party in 1956. The Progressive party of Canada and the United Farmers movement (Which formed governments in the provinces of Alberta, Manitoba and Ontario) also acted on a similar philosophy.

Nature of Caretaker Government

In the parlance of institutional government, a caretaker government is one which normally takes care of state administration for an interim period until the regular new government is formed. In established parliamentary system, there is a convention of transformation of the out going government into a caretaker government for the time being before the holding of general election. Such temporary government exists only to perform day to day administrative jobs, and is not supposed to deal with policy initiating functions which may influence the election results. During the period the caretaker government maintains a neutral status for ensuring free and fair general elections. In the parliamentary framework, after the dissolution of one ministry, the practice of establishing a caretaker government for organizing general polls has been observed in almost all democratic countries.

 Classification of Caretaker Government

The concept of “Caretaker Government” as it has been and is being used in politics and constitutions of various countries may be used in three senses

1.    Presumed caretaker government

2.    Caretaker Government in special sense

            3. Caretaker Government in proper sense or Non-party caretaker                    Government.

 Presumed caretaker government

When parliament stands dissolved because the government has been defeated in the floor and it has advised for its dissolution or because of any other reason, the existing government continues in office till the new government is formed after election. This existing government after the dissolution of parliament and before its reconstitution transforms automatically into a caretaker government for pre-election interim period during which it does not initiate any important policies or commitments of a board and sweeping nature invariably, the prime minister in office at the time of the dissolution of the legislature or the termination of its constitutional life carries on the administrations of the country as head of the caretaker government

To be noted that this transformed nature of the sitting government during the election period is not universally recognized as caretaker government  as such and it cannot be said to be Caretaker government  in true sense of the term, for this government taking care of the administration itself contents in the election while it is in power but as it does not initiate any important policies or make a commitment of board and sweeping nature and it holds office just to take care of the day to day administration, only in this sense it may be presumed to be a kind of   caretaker government. This type of caretaker government is automatic and natural in countries where constitutionalism in practiced.[4]

Caretaker government in true sense

In true sense the term caretaker government means an interim government which is non-party government and abstains itself from contesting the election and fair election. for example ,the provisions for caretaker government as provided by the 13^th  amendment of the constitution of Bangladesh ensures a caretaker government  in true sense ,for none of the government of  the government has the right to contest general election caretaker government of Pakistan of 1993 and of 1997 were  caretaker government  in proper sense. the interim government to conduct election in south Africa in 1994 was also a caretaker government in true sense .The interim government of justice shsbuddin ahmed which was formed after the fall of military dictator Ershad regime in 1990 in Bangladesh was not from constitutional point of view, any caretaker government because there was no provision for caretaker government as such in the constitution of Bangladesh. Under the provisions of the constitution justice shabuddin Ahmed was appointed as the vice-president and when Ershad resigned shabuddin Ahmed acted as the acting president and until he came out of his office he acted as the acting president. But if we examine his government from factual, political and philosophical point view, we find that his government was essentially though not constitutionally though not constitutionally a caretaker government in true sense. Because all of his government was non-political persons are none of them took part in the election.[5]

 Caretaker government in special sense

In some cases to a particular special situation a caretaker government is formed on basis of national consensus. Again, in some written constitutions specific provisions are kept for caretaker government to conduct general election.

For, example in Britain in 1945 the cabinet formed by Churchill following  the second world war has been termed by sir Ivor Jennings  as    caretaker government.1 as this government was formed particularly for conducting post-war election in Britain and this 16 member cabinet was particular by conservative party, national liberation party and also some non-party members . The government was different from a presumed caretaker government as have mentioned above. Sir Ivor Jennings categorically says that it should explain that it is not British to appoint a caretaker government for duration of general election. It was done 1945 because the war time collection had broken up. The electors had to decide where they wanted a conservative government or labor government, and means while the king’s service had to be carry on. This was quite exceptional.

 The government which advice the dissolution remains in office throughout the election and continues to do so after the election, unless it is defeated

 Again, article 48(5) of the Pakistan constitution specifically provides for “caretaker government”.

It stipulates that-

“Were the president dissolves the national assembly, he shall, in his discretion

(a)       appoint a date not later than 90 days from the date of the  dissolution, for holding of a general election to the assembly  ; and

(b)      Appoint a ‘caretaker government”. But three is no provision for appointing a non-party caretaker government; neither is there any mandatory provision that the caretaker government will not take part in the election. As a result, the provision for “caretaker government” as provided in the Pakistan constitution cannot be said to be a Caretaker government in true sense of the term[6].

Non-party Caretaker Government under the Constitution of Bangladesh

 Non-party Caretaker Government

According to article 58B of the Constitution of the People’s Republic of Bangladesh

(1)There shall be a Non-party Caretaker government during the period from the date on which the Chief Adviser of such government enters upon office after is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of parliament.

(2) The non-Party Caretaker government shall be collectively responsible to the president.

(3) The executive power of the Republic shall, during the period mentioned in clause (1), be exercised, subject to the provisions of article 58D(1), in accordance with this Constitution, by or on the authority of the Chief Adviser and shall be exercised by him in accordance with the advice of the Non-party Caretaker government.

(4) the provisions of article 55(4), (5), (6) shall 9with the necessary adoptions) apply to similar matters during the period mentioned in clause (1).[7]

Composition of Non party Caretaker Government   

The Constitution now empowers the president to appoint a ten-member NCG, with a CA as its head, within fifteen days of the dissolution of the parliament. Unlike normal circumstances when the President enjoys some discretion in the appointment of the PM, his choice in the selection of the CA, who enjoys the status, privileges and remuneration of a PM, is strictly restricted.[8]

Under Article 58C (1) The Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Adviser, all of whom shall be appointed by the President.

      (2) The Chief Adviser and other Adviser shall be appointed within fifteen days after Parliament is dissolved or stands dissolved, and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which Chief Adviser is appointed, the Prime Minister and his cabinet   who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such.[9]

      (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:

      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 justice of Bangladesh retired next before the last retired Chief justice.

      (4) If no retired Chief 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 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.

(6) Notwithstanding anything contained in this chapter, if the provisions of clauses (3)(4) (5) can not be given effect to, the president shall assume the functions of the Chief Adviser of the Non-party Caretaker government in addition to his own functions under this Constitution.

Until now, no retired chief justice has refused to accept the position of the CA; as a result, the President has not any problem in appointing the CA. However, had the retired CJs refused to become the CA in 1996, the President would have a chance of assuming the responsibility of the CA The two Judges of AD who retired immeditely before the passage of the constitution Bill in 1996-Justice Ruhul Islam and Justice A. T. M. Masud- were more than 72 years old; hence, both were ineligible to become the CA. The other retired judges of the AD were older than Justice Islam and Justice Masud, does not eligible for appointment as CA.[10]

 (7) The president shall appoint Advisers from among the persons who are-

(a)    qualified for election as members of parliaments;

(b)    Not members of any political party or any organization associated with or affiliated to any political party.

(c)    not, and have agreed in writing not to be, candidates for ensuring election of members of parliament;

(d)   Not over seventy-two years of age.

(8) The Adviser s shall be appointed by the President on the advice of the Chief adviser

(9) The Chief Adviser or an Adviser may resign his office by writing under his hand to the President.

(10) The Chief Adviser or an Adviser shall cease to be Chief Adviser or Adviser if he is disqualified to be appointed as such under article.

(11) The Chief Adviser shall have the status, and shall be entitled to the  remuneration and privileges, of a prime minister, and an Adviser shall have the status, and shall be entitled to the remuneration and privilege of a minister.

(12) The Non-party Caretaker government shall stand dissolved on the date on which the Prime Minister enters upon his office after the constitution of new parliament.

According to article 58D (1)  The Non-party Caretaker government     shall discharge its functions as an interim government and shall carry on the routine functions of such government  with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions it shall not make any policy decision.

(2) The non-party Care-taker Government shall give to the Election Commission all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially.[11]

The System of Caretaker Government in Bangladesh

A caretaker government was first introduced in 1990 when three party alliances jointly made a demand for it. It was constitutionalized in 1996 by the Parliament. A Caretaker government is headed by a Chief Adviser who enjoys the same power as the regular prime minister of the country except defence matters. The Advisors function as Ministers. Since 1996, the Caretaker government has held the elections of 1996, 2001 and 2008.

 Electoral History in Bangladesh

The demand for neutral caretaker government largely originated from a lack of trust in the Political government under which the election was held. To understand the background of this demand, one has to at least briefly look at the political history of Bangladesh After Bangladesh gained its independence in 1971, the first Parliamentary elections were held on 7th March 1973.These were by and large considered free and fair elections, Although there were some alleged cases of rigging, ballot snatching and ballot box stuffing in some constituencies. It’s generally believed that the practice of rigging was started when General Zia-ur-Rehman held a referendum in 1977.A voter turn out of 88.5% was recorded and the affirmative votes in favour of the incumbent General were recorded as98.88 % of the total votes cast. He held two more elections and it is alleged that he used civil and military intelligence agencies as well as the civil administration to rig the Elections. General Hussein Muhammad Irshad followed General Zia’s footsteps and held a referendum on 21^st March,1985. Amore realistic-looking voter turnout of 72.2% and affirmative votes of 84.1% were announced. General Irshad went on to hold three elections. The first Parliamentary elections were held by him on 7th May, 1986. The next two elections were Presidential and Parliamentary one. Those elections, held on 15th October 1986 and 3rd March,1988 respectively were boycotted by all the opposition political parties of Bangladesh including two main parties i.e. Awami League and BNP, leaving only his own Jatio Party in the arena. On December 6, 1990, people’s uprising got rid of the military Government of General Irshad and a caretaker government agreed-upon by all political parties headed by the sitting Chief Justice was installed to conduct a free and fair election. As a result, the BNP Government led by Begum Khalida Zia came into power on 20th March1991. The BNP government held the general election on 15th February1996 which was widely boycotted by other political parties as they did not expect a fair election under BNP. Only 21 % voter turn-out was registered which was the lowest in the history of the country.[12]

 The 13^th Amendment of the Constitution

This Amendment was passed with 268-0 votes on 26^th march, 1996 and it became law on 28^th march. The amendment added a new chapter (chapter iiA: Non-party Caretaker government) in part 4 of the constitution with 5 new Articles (58A, 58B, 58D, and 58E).It also amendment Articles 61, 99,147,152 and the third Schedule of the constitution.[13]  

Background of the 13^th Amendment

On the way to restoration of liberal democracy from the bondage of military autocracy the historic 5^th Parliamentary Election was a milestone which was held the President justice Shahabuddin Ahmed in 1991. An unprecedented degree of enthusiasm was shown by all quarters. The election was nationally and internationally recognized as free and fair Winning majority seats in parliament the BNP formed government. But from the beginning of the BNP government the opposition parties in the parliament began to create pressure on the government so that it includes provision for caretaker government in the constitution. in 1993 first jamat-i-Islam and the AL and JP submitted their respective Bills concerning caretaker government. Every Bill contained the same object-“to make general elections free and fair and to make the whole process of election free from the government influence provision for caretaker government should be introduce in the constitution”. But this demand of the opposition parties was treated by the government as unconstitutional and illegal. The Magura by-election was the turning point for the movement of caretaker government. It was this Magura by-election in which the government party BNP took resort to an unprecedented malpractice and reigning. This election manipulation of BNP government, as reported by most important dailies, defeated even the Ershads election manipulation in 1998 and it has earned a title of “Election Magura” in the election politics of Bangladesh. Before this Magura incident all the opposition parties made walkout from parliament in protest of a statement made by the information Minister Nazmull Huda concerning Hebron Killing issue of Israel.And the made commitment that they would not return to parliament if the information Minister did not expunge his statement. To this boycotting of parliament Magura election malpractices provided an extra strength and now the opposition parties got their direct way of demanding that they not to go back to parliament till a “caretaker government” Bill was introduced in the house. The government did not pay a heed to this demand. On 28^th December, 1994 about 147 MPs resigned in protest. When the government proceeded to hold by-election in 142 vacant seats the political impasses took more outrageous condition leading to continuous county-wide strike. On 24^th November, 1995 the government dissolved the 5^th parliament and the 6^th parliamentary election was scheduled on 15^th February, 1996. But since the government by opposition, all the opposition parties boycotted. The ruling parties BNP proceed to contest the election with sudden hand-picked parties as the military dictator Ershad did. The announcement of the result of the election added fuel to the fire-like opposition movement. All the opposition parties launched their country-wide non-cooperation movement and demanded the fall of the government as well as the dissolution of 6^th parliament. The whole politico-economic condition of the country was leading to a complete civil war; lastly finding no other the way out BNP government introduced the caretaker government Bill (the 13^th Amendment of the constitution) on 21^st March at the first session of the 6^th parliament. The bill was passed on 26^th March. Then the 6^th parliament after 7 days of its life was dissolved on 30^th March and Justice Habibur Rahman was appointed as the Chief Advisor of the caretaker government as envisaged in the 13^th amendment of the constitution.[14]

 Constitutional Amendment: Caretaker Government

As painstaking debates on reform of future interim caretaker government currently dominate the politics, a question of jurisprudence came up if an amicable solution could be possible without amending the Constitution. .

      Opposition political leadership is pressing for an acceptable personality to assume the office of chief advisor of nonparty caretaker government but has not yet shown the way it could be done.

However, they do not like to see the immediate-past Chief Justice as Chief Advisor as they discovered his “loyalty to BNP politics” before joining the bench.

      They complain that the extension of retirement age of the Supreme Court judges from 65 to 67 was made with a political purpose – an allegation already denied by ruling-party leaders.

      The 13^th amendment of the Constitution passed by parliament on March 26,1996 provides several options for selecting a person as Chief Advisor.

The first option is stipulated in Clause 3 of Article 58C that says: “the President shall appoint as Chief Advisor the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Advisor under this Article”.

      As per this provision immediate-past Chief Justice KM Hassan is the claimant for the office of Chief Advisor. All are aware of this constitutional compulsion. But if the Constitution is not changed, what could be the way to skip this provision?

      Eminent lawyer Dr. Kamal Hossain says problems related to choosing an acceptable person for Chief Advisor could be resolved without amending the Constitution. He said if all political parties could sit together and scrutinize previous lapses in the system, a solution could be found out through honest endeavour.

      Barrister Amirul Islam referred to Clause 5 of Article 58C that states: “If no retired judges of the Appellate Division are available or willing to hold the office of Chief Advisor, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Advisor from among citizens of Bangladesh who are qualified to be appointed as Advisor under this article.”

      Barrister Rokonuddin Mahmud suggested that incumbent President should also resign with the resignation of the Prime Minister with the dissolution of parliament. He argues that since the incumbent President was elected on BNP nomination, he cannot remain neutral during the period of caretaker administration.

      Some opposition politicians suggest that the ‘immediate retired” Chief Justice should feel “embarrassed” in taking over charge and thus make way for choosing an acceptable person for Chief Advisor.

      A vital question here is: would there be a panacea if the immediate past Chief Justice felt “embarrassed”? Will it be able to allow the President to go for consultation with the major political parties to find an acceptable person?

The provision of Clause 3 of Article 58C clearly states if such (immediate and retired) Chief Justice “is not available or is not willing to hold the office of Chief Advisor, the person would be who among the retired Chief ;12,- of Bangladesh retired immediate before the last retired Chief Justice”.

At present, eight retired Chief Justices are alive. Of them, Justice Shahabuddin Ahmed, Justice Habibur Rahman and Justice Latifur Rahman have already served as Chief Advisors.

      Justice ATM Afzal, Justice Mostafa Kamal and Justice Mahmudul Amin Chowdhury are also among the retired Chief Justices. If Justice KM Hassan is unwilling to get the job, Justice Mahmudul Amih Chowdhury stands next as per the Constitution.

      The constitutional provision does not stop here. Clause 4 of the same article says if no retired Chief Justices were available or willing to hold the office of Chief Advisor, the President should appoint as Chief Advisor the person who among the retired Judges of the Appellate Division retired last.

“Provided that if such retired Judge is not available or is not willing to hold the office of Chief Advisor, the President shall appoint as Chief Advisor the person who among the retired Judges of the Appellate Division retired next before the last such retired judges.”

      And again, Clause 5 says that the President would consult the major opposition parties “if no retired Judge of Appellate Division is available or willing to hold the office of Chief Advisor”.

      The question of President’s consultation would come only after trying as many as six options under the 13th amendment that predominantly confines the office of Chief Advisor to the Judges of the highest judiciary.

      Until and unless there be a new amendment to the 13th amendment, it appears to be next to impossible to choose a person within or outside the judiciary.

      Prime Minister Khaleda Zia has turned down the opposition’s demand for reform of the caretaker government system. She also rejected the plea for the President’s resignation. Rather the Prime Minister and her cabinet colleagues started accusing the opposition of trying to undo the caretaker system.[15]

Evaluation of Non-party caretaker government in Bangladesh

In the constitutional development of Bangladesh the 13^th Amendment of the constitution may be a positive step for some reason.

Firstly, the fundamental basis of formation of government in democracy is election. If this election is not free and fair, the formation of government cannot be said to fulfill the norms of democracy; and in this case the most celebrated maxim of democracy ‘all power belongs to the people’ becomes  a mere farce . More the election process will be free and fair; more the people will see their voting right, in other words, right to elect representatives meaningful. The most important positive merit of the 13^th amendment is that it has paved the way for making the general elections free and fair, particularly free from government influence.

Secondly, it has been a common trend in the politics of almost all developing countries that during the election period the party in power makes the worst abuse of public purse and properties to get the victory in their favour. This manipulation in the election process virtually creates an insurmountable stumbling block to the development of some important democratic institutions like the Election Commission, voting right, press, media and political party etc. Science the 13^th Amendment provides interim separate caretaker government and no party government can continue in power during the general election, there remains no scope of manipulation of public purse and properties by the party in power.

Thirdly, coming to power every government from now on will have to think that once parliament is dissolved or its terms is ended, it will automatically find itself out of the power and then the public will have the fullest opportunity and atmosphere  to exercise their right to elect representatives and of the government. On the other hand, no government will be in a position to think for manipulating in the election process. There is therefore, possibility that the government will now be more responsive than in the past.[16]

Chief Advisor since 1991           

• Justice Shahabuddin Ahmed – Election of 1991
• Justice Muhammad Habibur Rahman – Election of 1996
• Justice Latifur Rahman – Eleciton of 2001
• Justice Fazlul Haque – resigned
• Profssor Iajuddin Ahmad – was compelled to resign
• Dr. Fakhruddin Ahmad – Election of 2008

Challenges of Caretaker Government 

The Bangladesh practice of a caretaker government is the result of deep distrust of the outgoing elected government. It is an admission of failure, on the part of the elected governments, to conduct the elections fairly and honestly. Unlike other countries that have practiced the parliamentary system successfully, in Bangladesh the outgoing government manipulates the levers of power to rig the election in order to ensure its own victory. The history of Bangladesh is unfortunately replete with these examples.

Thus the seed of conflict within the government was sown when the relevant law virtually split the powers of the government. The chief adviser exercised great restraint and averted a crisis. His skill and acumen were crucial in maintaining peace and tranquility in the country. Given the history of Bangladesh where most elections in the past were rigged, the introduction of the caretaker system is indeed a positive development. If the system is implemented honestly the people’s expectation of free and fair election can be fulfilled.

The Crisis faced on Ninth Parliamentary Election

The ninth parliamentary election, though fixed for January 22, 2007, was troubled from the beginning. Even before the elections dates were announced, the opposition parties were complaining of foul play in the election process. The controversy centered on the appointment of Chief Advisor of the Caretaker Government.

As per Constitution, Justice KM Hasan, the last retired Chief Justice of the Supreme Court was to be the Chief Advisor of the caretaker government. But, opposition parties objected to Hasan’s candidature primarily due to his proximity with Bangladesh Nationalist Party (BNP)—the Khaleda Zia government had increased the retirement age of Chief Justice from 65 to 67 by amending the Constitution in 2004 to allow Hasan to head the caretaker regime in the even of an election. Hasan quietly withdrew himself and became incommunicado. The opposition parties suggested few other names but with BNP refusing to accept any of the names, it was left to the Army to move in and occupy the political space. When the Khaleda Zia government completed its term in the midst of chaos and violence, President. Iajuddin Ahmed quickly stepped into the void and declared himself as the Chief Advisor overlooking all other options available in the Constitution. As per the Constitution, the President can become the Chief Adviser of a Non-Partisan Caretaker Government in addition to carrying out his own functions only when he has tried all other alternatives available besides the situation has to be exceptional. The Opposition welcomed the move with caution and hoped that Iajuddin would hold free and fair election. The trouble began soon after Iajuddin-led Caretaker Government took charge; Awami League went on a protest mode following the government’s refusal to rectify some of the partisan measures of the previous BNP government. The Opposition also accused the President of pursuing policies of the BNP government, instead of acting neutrally. The situation further deteriorated on the issue of the removal of Chief Election Commissioner who was accused of favouring BNP. The Opposition was really miffed when the election dates were announced and they intensified their protests, demanding immediate postponement of the elections. On January 7, the 18- party Opposition alliance led by Awami League (AL) decided to boycott the elections. This isolated BNP and undermined the legitimacy of the ninth parliamentary election. Large scale violence erupted across the country, forcing President Iajuddin to impose emergency on January 11 and resign from the post of Chief Advisor of the Caretaker government. Thus, a new chapter was added to Bangladesh’s tumultuous history on 1/11, as the event is popularly referred to. On January 12, 2007, Dr. Fakruddin Ahmed, renowned economist and former Bangladesh Bank Governor, was appointed as the Chief Advisor of the military-backed caretaker government. Although people were not overjoyed by the move, it brought a sense of relief from the continuing violence.[17]

Constitutional Validity of Dr. Fakhruddin Ahmad’s Care-taker Government

Dr. Fakhruddin Ahmed’s government is the country’s second caretaker government

since October 2006. This government enjoys the mandate of the Bangladesh Army. The main objective of the government as declared by Fakhuddin Ahmed (on January 11, 2008) is to hold free, fair and credible election.[18]

The Constitutional validity of the government, however, is questionable. As per

Bangladesh’s Constitution, “a Caretaker Government should have been constituted within 15 days of the dissolution of the Jatiya Sangsad and should be in a position to hand over powers to a duly constituted popular government within 90 days after the dissolution of the previous parliament.”. Hence, already, this government has completed the stipulated time limit that qualifies itself to be a caretaker government. However, observers of Bangladesh’s politics suggest that since the main objective of this government is to hold election, therefore, it can be called a caretaker government. This is one of the distinctive features of this government. Unlike previous such caretaker regimes, the present government’s administrative and development initiatives also show a determination to prevent the country from slipping another round of chaos and violence and to hold a credible and fair election.

 Need for Reforms in Caretaker Government

In the first place, the law as it exists opens up the possibility of manipulation by the ruling side to place a chief adviser in the post favourable to it. Since the chief adviser and the council chosen by him can influence the elections by using the administration, the ruling party can start a calculated manoeuvre to ensure that the person known to be a member or sympathizer of the ruling party is appointed to this post.[19]

Secondly, the present law leaves the selection of the advisers entirely to the chief adviser. The principle of neutrality should be a governing factor in the selection. Besides, both the ruling party and the main opposition party should have the scope to suggest such neutral persons. During the interim government after the fall of Ershad, Justice Shahabuddin used these lists provided by the different political parties. If the advisers are chosen from amongst persons listed by the major parties, the council will enjoy their confidence and there would not be complaints of partiality.[20]

Thirdly, members of the advisory council including the chief adviser have to give written undertaking to the effect that they would neither seek election in the forthcoming election nor accept any office of profit under the government that will be elected. While one may consider this redundant as this is a basic requirement of the caretaker concept, the law as it is drafted does not clearly state the point. Quite clearly, the advisers must not expect to be appointed to any high office in the next five years during the term of the Parliament.[21]

Fourthly, article 58 E of the present law confers extraordinary powers to the president. In a parliamentary system this is contrary to the underlying principle. Our jurists and political parties must consider the issue in order to prevent division of the executive powers of the government. The president must remain above all controversies.

Fifthly, if the government manipulates the administration to influence the election to its advantage, the caretaker government has to take such steps as are necessary to neutralize these measures. The issue should be reopened and fresh consultation should take place to determine whether those laws promulgated as ordinances serve the best interests of the country. As pointed out earlier, the primary task of conducting election rests with the election commission. It would be the duty of the caretaker government to ensure that the election commission is able to function without fear or favour and without interference from any quarter.

Sixthly, the Election Commission must have full control over its budget and staff resources. Budgetary independence is an indispensable condition for its freedom of action. As regards staff, once the services of an official is placed at the disposal of the Election Commission, he or she should be completely under the Commission. The Commission should also regulate the transfer and promotion of the officials. Above all, the members of Election Commission must be appointed with the concurrence of the Opposition.

Recommendations

According to article 141A(c) of the Bangladesh Constitution provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-constitution, unless before that expiration of the meets after its re-constitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament”

Also According to article 141C (3) of the Bangladesh constitution every order made under this article shall, as soon as may be, be laid before Parliament.

So, in the first session of the running parliament the question arose about the last caretaker government, emergency, and all activities of the caretaker government. The very last caretaker government passed 122 Ordinances during almost two years. Some of the ordinances automatically became lapse for time limitation. For rest of the ordinance, the new government must take immediate decision. Though the last caretaker government violated the Constitution but in order to the continuation of government it is necessary to give validity of that government. But all 122 Ordinances may not become valid, but the whole activities of the caretaker government can not be declared invalid. If it is declared invalid in total then the last national election and new parliament both shall become illegal. So, it solely depends on the present parliament that how far they shall approve the activities of the caretaker government. There are two procedures to valid those Ordinances. (1) by amendment of constitution all become valid and latter by examine it may be modified, reconstructed, or rejected. (2) or each of the ordinances may be examined separately and laid before parliament for approval or rejection.

If the present parliament gives the validity of this caretaker government and in this regard if the court reluctant to interfere, only then the last caretaker government shall achieve it validity.

The present Awami League Government is already thinks to return to the Original Constitution of 1972 where there will be no scope for caretaker government. If that happens than the last ruling party will conduct the election for framing a new government as their successor. By doing this, the question of free and fair election will be in jeopardy. We don’t want to question our electoral system again and again therefore removing the caretaker government is not a fruitful decision rather to remove the scope for misusing the power would be fruitful one on the present context of Bangladesh.

Public spaces

The businessman:

The person acceptable to all parties be appointed as Caretaker Government so that the election can be free and fair says 42 years old Abdul Halim. When I offer him to opinion about Caretaker Government system Bangladesh he tell me at first concentrate/ change the mind of all political patties and also says that the appointed as Caretaker Government as consult with political parties.

The female student

Reforms of Caretaker Government system in Bangladesh for the free and fair election says 19 years old student Meher- Un- Nisa. She says that the appointment of caretaker government in Bangladesh existing system changed she also argue that appointment must be unique system as political party can not change it.

The bus driver

When I tell about appointment of caretaker government system in Bangladesh the bus driver says the caretaker government in Bangladesh .He does not support the existing system of appointment of caretaker government.

The male student

The government needs to be more objective and more specific in their effort to appointment of caretaker government says 21 year old Faihan. The existing system of appointment of caretaker government in Bangladesh is that previous government appoint that person as caretaker government who will act in favour him. So it is impossible election was a free and fair .He also argue that the person appoint a caretaker government he will full non-political person. Mr Fahin does not support the existing caretaker government system in Bangladesh.

 The service worker

I think they should not prolong their period in power and work and to allow democratic politics to re-start says 37 year old Mohammad shiriful Azam. The main work of the caretaker government is that to administration of the fair and free election. He does not support the appointed caretaker government system in the political basis.

So after discussion of different professional person existing appointment of caretaker government in Bangladesh does not support. All professional person says the change of caretaker government system. Every person has one claim that at first change attitude of all political party.

Concluding Remarks

In the parlance of institutional Government, a caretaker Government is one which normally takes care of state administration for an interim period until the regular new Government is formed. In established parliamentary system there is a convention of transformation of the outgoing Government into a Caretaker Government for the time being before the holding of general election. Such temporary government exists only to perform day to day administrative jobs, and is not supposed to deal with policy initiating functions which may influence the election results. During the period the caretaker government maintains neutral status for ensuring free and fair general elections. In the parliamentary framework, after the dissolution of one ministry, the practice of establishing caretaker government for organizing general polls has been observed in all democratic countries.[22]

In mature democracies, an elected government continues as the caretaker government during elections without anybody suspecting any wrongdoing at the hand of the caretaker government. In such democracies, election management bodies have sufficient independence and powers to ensure free and fair election without any fear of interference by the government. In such cases, it does not matter who is running the caretaker government as the established norms and institutions guard against any possibility of interference by the government or for that matter anyone. India is one good example of such democracies where Election Commission becomes a virtual caretaker government during the election time and no neutral caretaker government is inducted for the election. In some democratizing countries, like Bangladesh and Pakistan, integrity of the election process is generally a question. There is a deficit of trust between the ruling and opposition parties. Ruling party is generally suspected of manipulating the election results to its own advantage. Election management bodies are not strong or assertive enough to ensure the integrity of elections. In such countries, a neutral care-taker government is considered essential to ensure free and fair election. The problem, however, arise when Head of the state is also perceived to be partisan and potentially someone who can manipulate the election process to the advantage of his or her favorite party. In such cases, constitutional provisions, if any, about the neutral caretaker governments appointed in the discretion of the President fail to inspire confidence in the electoral process and the crisis therefore continues. Pakistan is a typical case in point. Some countries, like Bangladesh, have come up with constitutional innovation by taking the appointment of a caretaker government out of the discretionary jurisdiction of President and by providing detailed guidelines on the composition and powers of the caretaker government. But, as the basic problem of weak democratic culture and lack of trust persists, even such comprehensive constitutional provisions also fail to ensure integrity of election and acceptance of the result by all parties. The current crisis in Bangladesh where opposition is demanding further electoral reforms despite a comprehensive constitutional provision of a neutral caretaker government illustrates this problem. Although Bangladesh model of a caretaker government is worth consideration by countries like Pakistan, it fails to provide sufficient safeguards against electoral manipulation by a strong and partisan head of the state determined to favour a particular party.

References

Books

1. Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, BCC Foundation, Dhaka, 3^rd Ed. 2008.
2. Nizam Ahmed, Non-party Caretaker Government in Bangladesh, The University Press Limited, Dhaka: , 1^st Ed, 2004.
3. Shamim Ahmed, The Making of Caretaker Government and Present Crisis,  News Network, Dhaka, 1^st Ed. 2005).

 Statute

       The Constitution of the People’s Republic of Bangladesh.

Websites

1. [http://www.southsearepublic.org/article/589/read/bangladeshs_nonparty_caretaker_government, last visited on  March 15, 2010  ].
2. [www.caretaker government.com, last visited on March 15, 2010 ].
3. A Year of Caretaker Government in Bangladesh, [http://www.observerindia.com/cms/export/orfonline/modules/analysis/attachments/Bangladesh_Annual_Review_1202130305567.pdf, last visited on March 15, 2010].
4. Mr. Shah AMS Kibria, ‘Reform of the Caretaker Government’, [http://www.sams-kibria.org/publications/caretaker_govt.pdf, last visited on March 15, 2010].