Care Taker Government in Bangladesh Chapter 1 INTRODUCTION 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.1 A unique feature of the Constitution of the People’s Republic of Bangladesh is the provision of holding general election 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 Advisor of the Caretaker Government, the powers and functions of the President and Chief Advisor during the Caretaker administration. 2 Questions have also been raised how far this system would remain effective in a political culture of mistrust, intolerance and power-hunger among political parties. 1.1 Nature 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 is Special sense, 3. Caretaker Government in proper sense or Non-Party Caretaker Government. 1.1.1
Presumed Caretaker Government
When the parliament stand dissolved or 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 framed after election. This 1
1
2
http://www.marxist.com/bangladesh-crisis-caretaker-government170107.htm Shamin Ahmed, The Making of Caretaker Government and Present Crisis, (Dhaka:News
2005), p.7.
NNetwork,
transformation is recognized in all democratic countries. In Britain, Canada, and New Zealand it is conventional practice and in countries with written constitutions it is specifically mentioned that when parliament is dissolved the sitting government continues in the office till its successor has entered upon office.3 1.1.2 Caretaker Government in Special Sense In some cases to particular special cases to a particular special situation a caretaker government is framed on the 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 framed by Churchill following the
Second World War has been termed by Sir Ivor Jenning as caretaker government. 4 Because this government was formed particularly for conducting post-war election in Britain and this 16 member cabinet was participated by Conservative parties, national Liberation Party and also some other non party members. This government was different from a presumed caretaker government. 1.1.3 Caretaker Government in True Sense In true sense the term 'caretaker government' means an interim government which is nonparty government and abstains itself from contesting the election and is appointed particularly for conducting a free and fair election.5 For example, the provision for 'caretaker government' as provided by the 13th Amendment of the Constitution of Bangladesh ensures a caretaker government in true sense, for none of the government has the right to contest general election, Caretaker government of Pakistan of 1993 and of 1997 were caretaker governments 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 Sahabuddin 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 Sahabuddin Ahmed was appointed was the VicePresident and when Ershad resigned Sahabuddin 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 3
Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, ( Dhaka: BCC Foundation, 1998), p. 392.
4 5
Ibid, p.393. Ibid, p.394.
was essentially though not constitutionally a caretaker government in true sense. Because all of his government was non-political persons and none of them took part in the election. The collapse of the Ershad regime marked the beginning of a new pattern of democratic politics in the Country. The interim government of Shahabuddin Ahmed held elections to the fifth parliament in February 1991 which in effect provide a means for transition from authoritarianism to democracy in the country. But elections held before 1991 were mostly intended to serve purposes unrelated to the strengthening of democratic rule such as legitimizing the autocratic regime and finding new means to strengthen it, dissipating the opposition, maintaining the status quo and confusing the electorate.6 Several factors have helped the holding of credible parliamentary elections in recent years; perhaps the most important being the evolution of a unique mechanism to oversee the process of elections. Under the existing constitutional arrangement, a non-party caretaker government (herein after mentioned as NCG headed by a former chief justice, called chief adviser (hereinafter termed as CA, and composed of then adviser, assumes the responsibility for administering the country during the interim between the dissolution of parliament and the commencement of the next one. Neither the CA, nor any of his advisers, can be a member of any political party. Nor can they contest the elections. The NCG stands dissolved in the date on which a new prime minister enters Office after the constitution of a new parliament. The NCG is mostly intended to make election impartial and acceptable to the electorate. The ruling parties in the past used intimidation and force to influence the outcome of election to such an extant that the people had apparently lost faith in election. The opposition parties also felt vulnerable in the face of the use of force by the ruling parties to win election and sought to adopt a mechanism that would not disadvantage any contestant in the polls. Elections under NCG have thus emerged as a natural alternative. Perhaps, more importantly, the 13th amendment to the Constitution providing for the introduction of NCG has been challenged in the court. A high Court Division HCD bench of the Supreme Court SC observed in June 2003 that the amendment had gone against the basic structure of the Constitution. The bench observed, the democratic structure of the government is the basic principle upheld in the Constitution But the caretaker government is to be run by non -elected person’s .hence it goes against the spirit of the Constitution 7 the HCD. However, did not give its finals verdict, it referred the matter to the Chief justice for the constitution of 6
Enayetur Rahim, Electoral Polities in Bangladesh: 1975-88, Rafiuddin Ahmed ed., (New Delhi: South Asia publisher, 1990) p.95.
7
The Daily Star (22 July, 2003), p.6.
a full bench of the HCD to ascertain whether the 13 th amendment had actually amended the Constitution.8 Chapter 2 13TH AMENDMENT: INTRODUCTION OF NON PARTY CARETAKER GOVERNMENT UNDER THE CONSTITUTION OF BANGLADESH 2.1 The Caretaker Government in Bangladesh 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 administration is generally distributed between the advisors. The Chief Adviser and the other advisers are committed for their activities to the President. The Concept of Caretaker Government as it has been and is being used in politics and constitutions of various countries, may be used in tree senses: Presumed Caretaker Government: Caretaker Government is Special sense: and Caretaker Government in Proper sense or Non-Party Caretaker Government. The Constitution now empowers the President to appoint a ten-member NCG, with a chief advisor 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 Prime Minister, his choice in the selection of the CA, who enjoys the status, privileges and remuneration of a PM, is strictly restricted. 9 The Composition, function and powers of Caretaker Government is states in Part IV of Chapter IIA of The Constitution of the People’s Republic of Bangladesh.10 8
A three member HCD bench, in its judgment delivered on 4 August 2004, observed that the 13th amendment to the Constitution did not amend any 'protected' article; hence the decision not to hold nay referendum on the amendment was not unconstitutional. The bench also observed that the amendment was not inconsistent with the basic structure of the Constitution; rather it helped institutionalize and strengthen democracy. The court rejected the contention at the petitioners counsel that the constitutional amendment would negatively influence the judiciary. Fore details, see the daily Bangladesh Observer, (Dhaka) 5 August 2004), p. 7.
9
Nizam Ahmed, Non-party Caretaker Government in Bangladesh, (Dhaka: The University
Pu
Publisher, 2004) p.46. 10
The Constitution of The People’s Republic of Bangladesh ( As modified up to 31st May, 2000).
2.2 Need for Introducing Caretaker Government One of the popular demands during the anti-Ershad movement was for free and fair elections under a neutral caretaker Government. This was spelt out in the joint declaration of 19 November 1990 of the three alliances. This was a sequel to the farcical elections the Ershad Government had held. The elections held by them were fraught with misdeeds, from capturing the poling booths to media coup and vote dacoity. There was unprecedented violence at the pools in 1986, but the Election Commission gave out that the elections were held peacefully. Gen. Ershad’s party won only through declaration in the electronic media. The elections were held under martial law when there was no freedom of the media. The elections were held under martial law when there was no freedom of the media. In the Third World Countries, elections are plagued with malpractices. But what happened in the Bangladesh was blatant. This started with the referendum of ‘Yes-No’ votes on 30 May 1977.11 Gen. Ershad followed the track of the Gen. Zia in the referendum of ‘Yes-No’ votes of March’85, general election of ’86,’88 and the presidential election of ’86. The general elections of ’86 were a tragedy. The presidential election was held with procured contenders patronized by him. The Election Commission simply used to carry out the orders of Chief Executive.12 Gen. Ershad had to concede to stepping down to make way for free and fair election under neutral Caretaker Government. The elections, held in February 1991, were acclaimed worldwide as an example of free and fair elections. The Election Commissioner became a symbol on neutrality. The reason for this was the Government had no stake in the elections and did not reduce Election Commission sub-officer of the President’s Secretariat 2.3 Introduction of 13th Amendment of the Constitution The dissolution of the fifth parliament did not bring an end to the opposition's street agitation program. Nor did the government find the task of holding elections to the sixth parliament an easy one. As soon as the government decided to hold elections to the sixth parliament, arguing that it was needed to ensure continuity in constitutional rule and to enable it to enact a bill for NCG, the opposition declared that it would resist the elections at any cost. None of the main opposition parties took part in the sixth polls held on 15 February 1996. The scale of violence reached its height during the sixth polls. Elections could not be held in ten constituencies because of violence; while in another constituency, elections had to be 11
Shamim Ahmed, ibid, p.12.
12
Ibid.
postponed because of the death of one candidate. The rate of voter turnout was also extremely low. The BNP won a landslide victory. But in the context of the opposition boycott, elections to the sixth parliament caused a serious legitimacy crisis for the BNP government headed by Khaleda Zia. The opposition considered the sixth parliament as illegitimate and demanded its immediate dissolution. Widespread political crises compounded the crises in economic management. The government thus decided to move in the sixth parliament a constitutional amendment bill providing for the holding of parliamentary elections under the NCG in the future. The bill on NCG was moved by the then law minister Barrister Zamiruddin Sirkar on 21 March 1996. The House passed it at dawn on 26 March; while the President assented to the bill on 28 March. Details of the bill will be discussed in the next chapter. The enactment of the bill for NCG, however, did not lead to the suspension of violent activities; to the contrary, the opposition further intensified its street agitation programme, demanding that the Khaleda Zia government resign immediately and hand over power to the NCG. The anti-government activities got a major boost when government officials seriously objected to the legitimacy of the government and pledged their support to the opposition movement. Secretaries of different ministries met the President, expressing their inability to carry out the orders of what they called the "illegitimate" government. 13 They also set a deadline for the government to resign, failing which they threatened to defy its (government) order. Different civil society organizations and NGOs also extended support to the opposition parties. What actually hastened the fall of the second Khaleda Zia government was the withdrawal of support to it by the civil servants. A large number of officials at different levels of government openly expressed solidarity with the opposition movement for the fall of the government. Many officials also, joined the janatar mancha (people's podium) erected by BAL leaders and supporters under the leadership of the Dhaka City BAL President and Mayor of Dhaka - Mohammad Hanif. The mancha provided a rallying point for several days for those who were engaged in anti-government agitation. When Khaleda Zia found it impossible to run the government, she resigned on 30 March 1996.14 The following day a non-party caretaker government with the last retired Chief Justice Habibur Rahman as its head was formed. On the way to restoration of liberal democracy from the bondage of military autocracy the historic 5th Parliamentary election was a milestone which was held under the acting president 13 14
Nizam Ahmed, ibid, p.33. Ibid, p.34.
Justice Sahabuddin 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. Bu from the beginning of the BNP government the opposition parties in the parliament began to create pressure on the government so that it include 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 election free and fair and to make the whole process of election free from the government influence provision for caretaker government should be introduced 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 rigging. This election manipulation of BNP government, as reported by most important dailies, defeated even the Ershad's election manipulation in 1988 and it has got 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 information Miniser Hazmul Huda 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 would not 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 28th December, 1994 about 147 MPS resigned in protest. When the government proceeded to hold by election in 142 vacant seats the political impasse took more outrageous condition leading to continuous country wide strike. On 24th November, 1995 the government dissolved the 5th parliament and the 6th Parliamentary election was scheduled on 15th February, 1996. But since the government did not pay any heed to the demand of caretaker government by the opposition, all the opposition parties boycotted election. The ruling party BNP proceeded to contest the election with sudden hand picked parties as the military director 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 noncooperation movement and demanded the fall of the government as well as the dissolution of 6th 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 13th Amendment of the Constitution) on 21st March at the first session of the 6th parliament. The Bill was passed on 26th march. Then the 6th parliament after 7 days of its life was dissolved in 30th March and justice Habibur Rahman was appointed as the Chief Adviser of the Caretaker Government as envisaged in the 13th Amendment of the Constitution. This Amendment was passed with 268-0 votes in 26th March, 1996 and it became law on 28th March. The Amendment Added a new Chapter (Chapter IIA: Non-Party Caretaker Government) in Part IV of the Constitution with 5 new Articles (58A, 58B, 58D and 58E). It also amendment Article 61, 99,123,147,152 and the 3 rd shedule of the Constitution of Bangladesh. 2.4 Constitutional Provision regarding Non-Party Caretaker Government Chapter IIA, Article 58B to 58E of the Constitution deals with the provisions of Non-Party Caretaker Government.15 58B. 1. there shall be a Non- Party Care-taker Government during the period from the date on which the Chief Adviser of Such government enters upon office after Parliament 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 Care-taker 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 and shall be exercised by him in accordance with the advice of the Non- Party Care- Taker Government. 4. The provisions of article 55, 5 and 6 shall (with the necessary adaptations) apply to similar matter during the period mentioned in clause . 58C. 1. The Non-party Caretaker Government shall consist of the chief Adviser at its head and not more than ten other Advisers, all of whom shall be appointed by the President. 2. The Chief Adviser and others shall be appointed within fifteen days after parliament is dissolved, and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which the 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. 15
The Constitution of The People’s Republic of Bangladesh (modified up to 31st May, 2000).
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 under this article: Provided that if such retired Chief Justice is not available or is nor willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice. 4. If no retired Chief Justice 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 Judge 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, and 5 cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care- taker Government in addition to his own functions under this Constitution. 7. The President shall appoint Advisers from Among the persons who area. Qualified for election as members of Parliament. b. Not members of any political party or of any organization associated with affiliated to any political party; c. Not, and have agreed in writing not to be, candidates for the ensuring election of members of Parliament; d. Not over seventy- two years of age. 8. The Advisers 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 addressed 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 this 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 privileges, of a Minister. 12. The Non- Party Care-taker Government shall stand dissolved on the date which the Prime Minister enters upon his office after the constitution of new Parliament. 58D. 1. The Non- Party Care-taker 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 service 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. 58E. Notwithstanding anything contained in articles 48 (3), 141A 1 and 141C(1) of the Constitution, during the period the Non- Party Care-taker Government is functioning, provisions in the Constitution requiring the President to act on the advice of the prime Minister or upon his prior counter- signature shall be ineffective. 2.5 To What Extent the Last Caretaker Government is Valid Basically, the system of caretaker government established on the basis of lack of faith among the political parties. In many countries of the world caretaker government system exist. But the format of caretaker government in Bangladesh is different. In other states the last ruling government works as the caretaker government till the transfer of power to the next elected government. At that the last ruling government only does the routine work, and assists the election commission to conduct an election. But the caretaker government system of Bangladesh little bit different from other, and that is non party caretaker government. The last ruling government handover power to a neutral person according to article 58 of the constitution of Bangladesh, who appoints ten more advisers and these eleven advisers, shall administer the government, for three months. In between these three months this caretaker government shall assist the election commission to their best to hold a free fair and credible election. In this three months time they will control the law and order situation, re-organize the election commission, re-organize the administrative body, modify the law relating to election, create awareness among the people about their voting rights and lastly, they will conduct a free, fair and credible election and handover the power to the elected government. According to the constitution this is the system of non party caretaker government.
0According to this procedure, in 2006 a non party caretaker government was formed by the Dr. Prof. Iazuddin Ahmed. But due to extreme revolt against that caretaker government by the political parties, he was bound to resign from the post of chief advisor of caretaker government and declared state emergency, On 11 January 2007. (Popularly known as 1/11). On 12 January 2007 Faqruddin Ahmed had taken oath as the chief advisor of new caretaker government and he run his caretaker government till January 2009. 2.6 Some Specific violation of the Constitution during the proposed election of 2007 1. According to Art. 123(3) of the Bangladesh constitution “a general election of members of parliament shall beheld within ninety days after parliament is dissolve, weather by reason of the expiration of its term or otherwise than by reason of such expiration.” So, the duration of the caretaker government will be three months. But the duration of the last caretaker government was almost two years. So according to this context the last caretaker government had lost their validity. 2. According to Art. 141(c)16 “shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament. So the duration of the emergency period shall not more then one hundred twenty days. But the duration of the emergency period in Bangladesh was almost two years. So from this point of view the emergency period was also violative with the Constitution. 3. According to Art. 58D “The Non- Party Care-taker 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 service of the Republic; and except in the case of necessity for the discharge of such functions it shall not make any policy decision” and (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 So, the caretaker government as per the Constitution can not take any policy making decision. But they have taken many policy making decision, among these decision some were declared illegal by High court division, such as – Muslim marriage and divorce ordinance (amendment-2008) relating to appointment of Kazi was declared illegal by the High Court Division. Contempt of courts ordinance-2008 was also declared invalid. In this writ petition the court said, “During the period of caretaker government the president is incompetent to declare any unnecessary ordinance except those which are related to election. According to
16
Constitution of the People’s Republic of Bangladesh.
the constitution caretaker government can not take any policy making decision. Thus, this ordinance is inconsistent with the constitution and thus, declared invalid. Chapter 3 APPROVAL OF CARETAKER GOVERNMENT AROUND THE WORLD 3.1 Attitude of Experts towards Non Party Caretaker Government It is important that both the policy makers and opinion makers in our country seriously study the Bangladesh experiment to draw necessary lessons for reinforcing our election process under a neutral caretaker government set up.17 Kuldip Nayar a noted Indian journalist and member of the Rajya Sabha ,upper house of the Indian parliament ,suggests that the NCG system may also work in India as the existing methods of holding elections have serious defects, to quote Nayar. Elections in India are increasingly reduced to the outcome of the pressure that a ruling party and its cohorts, including criminals and money bags, can exert on the voters. The Election Commission can lessen the use of official pressure but cannot eliminate it. Even the code of ethics remains unimplemented. The party in power has an advantage. It posts officers of its own choice as collectors and superintendents of police to districts and it has been found in the past elections that they tried to influence the voters in favor of the party in power ....None in the government differentiates between official and party work .Such malpractices are dangerous for a democratic polity .The attitude of the will to do the right and proper thing ....They can be countered only if non-party public men oversee the polls.18 Dr.M.S.Gill, a former Chief Election Commissioner of India, being convinced of the ability and efficiency of the caretaker government in holding free and fair elections in Bangladesh, forcefully advocated a similar type of arrangement for India.19 A former Chief justice of the Delhi High Court, Mr. Rajindar Sachar, also argued for a caretaker government to oversee the holding of parliamentary elections in India .He observed that their was no need for constitutional amendment to allow a caretaker government composed of people who were not parliament members to run the interim administration. The Supreme Court has held that article 75 permits ministers, including the 17
18
19
Fakhruddin Ahmed, The Caretakers: A First Hand Account of the Interim Government of Bangladesh 1990-91, (Dhaka: UPL, 1998), pp..91-2. Kuldip Nayar, Caretaker Government in India, (Dhaka: Courier, 1996) p.26. Giasuddin Molla, Democratic institution Building Process in Bangladesh; South Asian experience of a new Model of� caretaker Government' in a Parliamentary Framework, (Dhaka: Regional Studies, 2002) p. 107.
prime minister, to continue for six month without being a member of either house. The president can therefore, without any breach of law or convention, constitute a council of ministers from other than legislators for a short period only for conducting the general elections.20 The opposition politicians in Sri Lanka have also debated the issue of the suitability of the Bangladesh model in the Sri Lanka context ,especially in view of the tendency of the party in the government to misuse its power and influence to keep its in power even at the cost of debasing democracy and democratic norms .In fact, in May 2001,four opposition political parties in parliament worked out the modalities to bring amendments to the constitution needed to set up a caretaker government during elections and to establish an effective Media Commission to control the state media.21 However, neither India nor Sri Lanka has yet introduced the caretaker system Nor it is everyone who has observed the electoral process in Bangladesh hospitable to the idea of NCG ,s transplantation outside of its country of origin The head of a 12 member Commonwealth Observer Group monitoring the 1996elections when asked if he felt that the idea of caretaker government was something unique and other countries might emulate the Bangladesh example remarked I am not sure May be for Bangladesh ,it is necessary.22 3.2 Approval of Caretaker Government around the World 3.2.1 Caretaker Government in Australia In Australia, following the dismissal of the Whitlam, labor government by the governorGeneral in 1975. Liberal leader- Malcolm Fraser- who did not have a majority in the (dissolved) House of Representatives (lower house) was allowed to run a caretaker government until a general election was held. One recent example of a (non-regular) Caretaker government holding state power between the dissolution of parliament and the election of a new one is Fiji. After the overthrow of the government in May 2000 of the Indian- origin PM Mahendra Choudhry, the military appointed a caretaker government, with Laisenea Qarase as PM. ALthough the high court declared the caretaker government set up by the military illegal, it nevertheless survived. The caretaker government held elections to
20
. Fajindar Sachar, Let's Have Elections Under a Caretaker Government, The Times of India, (7 April, 1997), p.11.
21
Prasad Gunewardene, “Opposition Parties Agree to Caretakers Government", The Times of India, ( 25 June, 1996), p.11.
22
The Daily star (7 June, 1996), p.6.
the parliament in August 2001 in which Qarase's party won a majority of Seats Qarase, the head of the caretaker government, as latter appointed PM. 3.2.2 Caretaker Government in Britain, Canada, New Zealand In Britain, Canada, New Zealand it is a Conventional practice and in countries with written constitutions it is specifically mentioned that when parliament is dissolved the sitting government continues in office till its successor has entered upon office. To be noted that this transformed nature of the sitting government during the election period is not universally recognized as caretaker government in true sense of the term for this government taking care of the administration itself contests in the election while it is in power. But as it does not initiate any important policies or make a commitment of broad 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 that it is a caretaker government. This type of caretaker government is automatic and natural in countries where constitutionalism is practiced. In some cases to a particular special situation a caretaker government is formed on the 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. 23Because this government was formed particularly for conducting post war election Britain and this 16 member cabinet was participated by Conservative Party, National Liberation party and also some non- Party members. This government was different from a presumed caretaker government as I have mentioned just now. Sir Ivor Jennings categorically says that 'it should be explained that it is not British practice to appoint a caretaker government' for the duration of general election. It was done in 1945 because the wartime coalition had broken up. The electors had to decide whether they wanted a conservative Government or a Labor Government, and meanwhile the kings’ service had to be carried on. This was quite exceptional. The government the election and continues to do so after the election to do so after the election unless it is defeated'24 Chapter 4 ARGUMENTS OVER CARE TAKER GOVERNMENT SYSTEM
23
[http://www.direct.gov.uk/en/Governmentcitizensandrights/UKgovernment/Centralgovernment andthemonarchy/DG_073444, last visited 26 September, 2009] 24
Ibid.
an
Firstly, though the chief adviser of the caretaker government has been the status of a prime minister from legal point of view he has been made subservient to the president and he has not been given the full power as a prime minister in ordinary situation can exercise according to article 58e of the Constitution of Bangladesh. the president is not bound to act in accordance with the advice of the chief adviser again article 58b [2]stipulates that the non party caretaker government shall be collectively responsible to the president thus president retains the power to cancel any decision of the caretaker government and even the caretaker government itself since the chief adviser along with all advisers of the caretaker government is non political and non months to conduct a general election no power expectation will work within him he should have been for the sake of independent
exercise of his function given
the same constitutional power as the prime minister does have. Secondly, while the caretaker government is in power the unfettered power over the defense has been vested upon the president during ordinary situations though the supreme command of the defense is vested to the president he exercises this function only in accordance with the advice of the prime minister but the 13th amendment is silent about this matter thus the most powerful way to act in an arbitrary manner is retained with the president. Thirdly, this interim caretaker government will be in power for 3months only. They will not have any policy formulating functions and they will be in power without any prior experience of governing the country. So it is likely that this government may create obstacle in the smooth functioning and developments of policies initiated by the previous government. This is of course the most strong argument against the concept of separate caretaker government that very few instances can be found where after every 5years or after every dissolution of parliament a separate politically inexpert government sits in power
for
conducting a general election but the fact of the Bangladesh politics as far as it concerns its election politics is that a free and fair election has been a far cry in the history of Bangladesh since its independence and the interim government of justice Sahabuddin Ahmed after the fall of Ershad regime has made a historic success in holding a free and fair election and this success had turned the concept of caretaker government into a political reality which has, through the 13th Amendment, been a constitutional reality. If we analyze the Amendment from true viewpoint of constitutionalism we will be bound to say that 13th Amendment is against the principle of institutionalization of democracy. Because as a result of this Amendment a wrong conception will always work in the minds of the people and young learners that the government in power cannot be above the corruption and manipulation of election process; secondly, the Election commission as a constitutional
institution of democracy for controlling, conducting and superintending the whole election process is inherently weak and cannot be made in a position to be institutionalized; thirdly, the whole governing process particularly the bureaucracy will get a swing on a regular interval which may hamper the smooth functioning of the administration. For institutionalization of democracy not separate interim caretaker government but an independent Election Commission is essential Chapter 5 JUDGMETN OVER CARETAKER GOVERNMENT SYSTEM 5.1 Supreme Court declared Caretaker Government system illegal The Supreme Court in Bangladesh has repealed the 13th Amendment to the constitution and because of this verdict given today the caretaker government system, once a consensus choice of all major political parties, now stands abolished. The apex court however has said that the next two general elections,10th and 11th, could be held under the existing caretaker government system.The full bench of the Appellate Division, headed by Chief Justice ABM Khairul Haque, pronounced the verdict on an appeal for annulling a High Court ruling.Earlier, in a ruling the High Court declared the 13th amendment valid. The Tuesday’s ruling, however, says that parliament in the meantime can bring necessary amendments excluding the provisions of making the former chief justices of Bangladesh or the judges of the Appellate Division as the head of the non-party caretaker government. The bench heard the petition from March 1 to April 6 and during this time it heard the opinion of eminent jurists like Dr. Kamal Hossain, T H Khan, Rafique-ul Haque, M Zahir, Mahmudul Islam, Amir-Ul Islam, Roklanuddin Mahmud and Ajmalul Hossain as amici curiae.Except Barrister Ajmalul Hossain, other jurists strongly supported the caretaker government system. 5.2 Bangladesh's apex court declares non-party caretaker government system illegal Bangladesh's apex court Tuesday declared illegal the constitutional provision for the nonparty caretaker government system in the country. The South Asian country's Supreme Court (SC) has repealed the 13th amendment in constitution but said the next 10th and 11th parliamentary elections may be held under the system to avoid any chaos.The apex court, however, observed that parliament, meanwhile, is at liberty to amend the law under which the chief justice or any other judges of the Appellate Division of SC are not involved in the nonparty government system in the next two elections.The six-member bench of the Appellate Division, headed by Chief Justice ABM Khairul Haque, delivered the judgment, upon a
petition against a High Court (HC) judgment that rejected an appeal challenging the 13th amendment to the constitution. The bench, which heard the petition from March 1 to April 6, also heard the views of eight senior lawyers as "amici curiae" ( friends of court).In 2004, the HC declared the caretaker government system legal and observed that the change did not distort the basic structure of the charter following the writ petition as public interest litigation filed in January, 2000. Thereafter, the petitioners, who said that the caretaker government system goes against the republican character of the state, moved their plea to the Appellate Division of the SC against the HC order. The caretaker government system was first introduced in 1990 when three political alliances jointly made a demand for it after military strongman HM Ershad was deposed. The system was institutionalized through the 13th amendment in 1996 by the then Bangladesh Nationalist Party (BNP) government under pressure from the then main opposition Bangladesh Awami League (AL), now ruling party. Since 1996, the caretaker government has held the elections in 1996, 2001 and 2008. But huge questions were raised about the system's fate after the last caretaker government, formed in January 2007 during emergency rule followed by political crisis, ruled the country for nearly two years.The last caretaker government had, therefore, exceeded its mandated term, which according to the constitution allows it to stay only for 90 days.Bangladeshi Prime Minister Sheikh Hasina, who formed government after a landslide victory in 9th parliamentary elections in 2008, has recently proposed as AL president a special parliamentary committee on charter review to put a timeframe on the non-party caretaker government.She also suggested if the caretaker government fails to hold elections in three months' period, the previous elected government would do the job. But the country's main opposition party BNP led by two time former PM Khaleda Zia says the AL government is hatching conspiracy to cancel the caretaker system to hold parliament election under its regime."Parliamentary election without caretaker government will not be allowed to be held in the country and people will not accept it, " BNP said.An appellate division of the Supreme Court here Tuesday declared illegal a constitutional amendment that introduced the system of elections under caretaker governments in Bangladesh, but said the next two polls “might be” held under the provision to avoid chaos. The supreme Court bench said the 13th amendment that introduced the existing system of caretaker governments in 1996 was “ultra vires” or beyond the powers” of constitution.
“The constitutional (13 th Amendment Act, 1996) Act is prospectively declared void and ultra vires to the constitution,” read verdict of the six-member apex court division headed by chief justice A B M Khairul Haque against a 2004 High Court judgement. But, the verdict reached by majority of the six-member apex court bench, said the next tenth and eleventh parliamentary elections set to held in 2013 and 2018” might be” held under the existing caretaker government system to evade chaotic situations. Appellate Division verdict said the majority of the judges reached the decision in accepting the appeal filed by a now dead Supreme Court lawyer. The High Court in a 2004 verdict rejected a writ by a Supreme Court lawyer who sought scrapping of the 13th amendment, which said the country’s immediate past chief justice would preferably be had of the caretaker gohe provision prescribed installation of the non-party and non-elected caretaker government for 90 days to oversee general elections at the end of the tenure of an elected government. The appellate division judgement allowed the next general elections to be held under the existing system following the “age old principles” that suggest some otherwise unlawful things can be lawful because of necessity, “safety of the people is the Supreme Law” and “safety of the state is the Supreme Law”. “Parliament, however, in the meantime, is at liberty to bring necessary amendments excluding the provisions of making former chief justices or other former apex court judges as head of the caretaker government,” the judgment said. The verdict came after 10 days of hearing when it heard opinions of eight leading jurists as “amici curiae” or “friends of the court” with a majority of them suggesting that the provision of appointing former chief justices exposed the Supreme Court to a difficult situation in keeping the higher judiciary beyond political controversies. The Jatiya Sangsad had amended the constitution the caretaker government system in the country in 1996 after a protracted campaign by the then main opposition Awami League of incumbent Prime Minister Sheikh Hasina Awami League at that time feared that elections under the then ruling Bangladesh Nationalist Party could be rigged under vernment. 27 [http://www. Judgment of Supreme Court caretaker govt.com] Chapter-6 CONCLUSION 6.1 Recommendations
According to article 141A, c of the Bangladesh constitution 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 already thinks to return to the Original Constitution of 1972 where there will be no scope for caretaker government. If that happens then 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. 6.2 Conclusion
After a nine month bloodshed war and the lost of 30 lacks martyrs and the lost of dignity of 2 lacks women, Bangladesh got independence on 16th December 1971. But the ideology worked behind the independence war, they are still to be established. Thats why, after the lapse of 40 years from the independence we are still debating on the matter that who is the father of nation and who declared independence of the country. The dream of democracy for which we fought the independence war, it became a nightmare, for which the politicians of our country are responsible. After the independence some issues like BAKSAL, suspension of the constitution, declaration of martial law twice and lastly two years ruling by the non elected caretaker government made the free passage of democracy gruesome. The main reasons behind those incidences are the lust for power, setting administration by own people, corruption, losing of faith on each other. We will not have the golden fruit of democracy unless these mentalities are changed. As a result, after the regular interval the non elected government like the present one shall come into the power. And repeatedly the democracy of our country will get obstacles in its path. That is why; we are looking for a new leader from our heat who will show us the way, lead the nation to the solid democracy and mingle the whole nation is one unit. In the word of the famous poet Forrukh Ahmed “where is the leader who shall lead us to cross the sea.� We have the hope that such leader will come one day. Caretaker government system is itself a undemocratic process. The reason behind the introduction of the caretaker government system is that the base of our democracy is shaky. We failed to institutionalize our democracy. But in the present days, our citizens are very much cautious, the result of which we have seen in the highly expected last national election held on 29 December 2008. And the people of Bangladesh elected Bangladesh Awami League with high desire for the change. So, the newly elected government should give the priority of the aspirations of the people by institutionalizing the democracy and should reconstruct the caretaker government system or should abolish this system. So that, no undemocratic and illegal government, like the last caretaker government can take place to oppress the people and stop the smooth path of the democracy of our country for which we fought the liberation war. 28
The Constitution of the People Republic of Bangladesh REFERENCES
Books 1. Enayetur Rahim, Electoral Polities in Bangladesh: 1975-88, Rafiuddin Ahmed ed., (New Delhi: South Asia publisher, 1990).
2. Fakhruddin Ahmed, The Caretakers: A First Hand Account of the Interim Government of Bangladesh 1990-91, (Dhaka: UPL, 1998). 3. Giasuddin Molla, Democratic Institution Building Process in Bangladesh; South Asian experience of a new Model of caretaker Government' in a Parliamentary Framework, (Dhaka: Regional Studies, 2002) . 4. Kuldip Nayar, Caretaker Government in India, (Dhaka: Courier, 1996). 5. Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, ( Dhaka: BCC Foundation, 1998). 6. Nizam Ahmed, Non-party Caretaker Government in Bangladesh, (Dhaka: The University Publisher, 2004). 7. Shamin Ahmed, The Making of Caretaker Government and Present Crisis, (Dhaka: News Network, 2005). 8. Shaukat Mahmood and Nadem Shaukat, Constitution of the Islamic Republic of Pakistan 197, 3rd ed., (Lahore: Legal Research Center, 1996). Statutes 1. The Constitution of the People’s Republic of Bangladesh. Newspapers 1. The Daily Star, (22 July, 2003). 2. The Daily Bangladesh Observer, (Dhaka) 5 August 2004). 3. The Daily Prothom Alo, (13 July, 2008). 4. The Times of India, ( 25 June, 1996). 5. The New Age (13 November 2011)