Caretaker government and the constitution

Caretaker Government and the Constitution CHAPTER -I Introductory Chapter

1.01 Aims and Objectives: This assignment based upon the relation between Constitution and Caretaker government.

From this research work, we will be able •

To provide a clear concept about the present condition and circumstances of the Caretaker govt. in international aspects;

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To know, how it is treated in different countries;

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To know about various Regional and International concept regarding caretaker government;

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To know its limitation or lacking;

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To know constitutional explanation about caretaker government;

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To provide some suggestions for Caretaker Govt.

1.02 Nature & Scope of the study: The caretaker government is "home-grown plant" of Bangladesh. Those countries, which are prove to rigging elections, may adopt the policy of elections under caretaker government as a temporary phase in their democratic development as it guarantees the disappearance of centrally-controlled electoral frauds.

By legalizing caretaker government through 13 th Amendment of the constitution in 1996, Bangladesh has founded a unique example in the existing parliamentary systems. It is one of the most interesting constitutional innovations of recent times in Bangladesh.

Presumably, a Bangladeshi government did not honour the caretaker connection, and the Bangladeshis, unwilling to trust any party machine with the caretaker connection, took other the running of government themselves during this period.

The 13th amendment to the Constitution providing for the introduction of caretaker government has been challenged in the court. The caretaker government is mostly intended to make elections impartial and acceptable to the electorate. The ruling parties in the past used intimidation and force to influence the outcome of elections to such an extent that the people had apparently lost faith in elections. Suffice it to mention have that there are not many examples of the type of caretaker government system, one can find in Bangladesh.

Although, interim government are often set up in different countries to meet the exigencies of circumstances, especially to oversee the transition from the authoritarianism to democracy. The tradition of imposing legal restrictions on an outgoing government to act as caretaker government remains more an exception rather than the rule. The general rule in a parliamentary democracy is to allow an outgoing government.

Election under caretaker government is a common practice to be founded in most parliamentary democracies of the world. Usually an outgoing government acts as the caretaker administration. But Bangladesh has deviated from this established democratic tradition. The constitution is now requires that a non-party caretaker government run the routine administration of the country for a limited period of time between the dissolution of parliament and the appointment of a prime minister after the constitution of a new parliament.

1.03 Introduction: 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 Advisor of the Caretaker Government, the powers and functions of the President and the Chief Advisor during the caretaker administration. 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.

In the parlance of institutional government, a caretaker government is one that normally takes care of state administration for an interim period until the regular new government is formed. In exiting 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 that may influence the election results. During this 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.

But in Bangladesh the history of general elections is unique. Since 1973 to 1988, the country had witnessed four general elections and in every election, the party in power won the elections. In 1973 ruling Awami League under the leadership of slain independence leader Sheikh Mujibur Rahman won a landslide victory with more than tw-thirds majority in parliament. In 1975, parliamentary democracy was switched over to presidential system.

In 1979 under the military regime of slain president Ziaur Rahman, people in this newborn country experienced “Yes-No” referendum designed to legitimize the military rule. This referendum was basically a joke and a crude distortion of the spirit of the election system and people’s electoral verdict. Gen Zia became the president through so-called referendum held under this military rule. Later a general election was also held under the Zia’s quasimilitary rule, installing his newly floated Bangladesh Nationalist Party (BNP) in power with two-thirds majority in the parliament.

After Zia, General Ershad grabbed power, held another Zia-style “Yes-No” referendum and became the president under martial law. In 1986, the third general elections were held in Bangladesh. Out of two major opposition parties, Awami League and its allies led by Sheikh Hasina contested the election, but Khaleda Zia’s BNP boycotted it. However, Gen. Ershad’s ruling Jatiya Party won the vote again with a huge margin. The elections were terribly marred by rigging, violence and bloodshed. The quasi-military administration of Ershad forced the Election Commission to stop announcing the results as the then opposition Awami League was winning more seats than Ersahd’s Jatiya Party. Then the election results were announced through state-owned electronic media instead of the Election Commission.

And the Ershad’s party managed to get the majority in the parliament. Since then, the words such as “vote dacoty” and “media coup” got familiar among the people and in the media.

In 1988, the fourth general elections were held again under Ershad’s autocratic government, but all opposition parties boycotted that poll demanding resignation of the military dictator.

The opposition demanded elections under a no-party neutral government. Ershad had to resign in the face of a mass upheaval in 1990 and the country had first-ever general elections in 1991 under a non-party caretaker government headed by the then Chief Justice Shahbuddin Ahmed.

Al the previous general elections till 1988 were dominated by the politicized administration, black money and muscle power. The electorate did not decide the results of most of those elections on the election day but in drawing rooms of the heads of government and offices of intelligence agencies. The people were disillusioned by the election system and the results. Against the backdrop of these bitter experiences, opposition parties – Awami League-led 15-party alliance, BNP-led 7-party alliance, pro-left 5-party alliance and Jamaate-Uskanu raised the demand for a caretaker administration to ensure free and fair election.

And Chief Justice Shahbuddin’s caretaker government was the fruit of a long-drawn movement as well as a historic declaration of the three opposition alliances. Jamaat was in the movement, but the alliances kept the party to a certain distance because of its role in 1971 liberation war.

CHAPTER -II Caretaker Government in Bangladesh 2.01 Definition of Caretaker Government: One that temporarily performs the duties of an office: The government resigned, but the premier served as caretaker until new leaders could be elected.

Holding office temporarily; interim a caretaker government a temporary government that is in charge of a country until a new government is elected.

Caretakers, similarly, are individuals who fill seats in government temporarily without ambitions to continue to hold office on their own. This is particularly true with regard to U.S. Senators who are appointed to office by the governor of their state following a vacancy created by the death or resignation of a sitting senator. Sometime governors wish to run for the seat themselves in the next election but do not want to be accused of unfairness by appointing themselves in the interim, and sometimes they do not wish to be seen as taking sides within a group of party factions or prejudicing the outcome of a primary election by picking someone who is apt to become an active candidate for the position. At one time, widows of politicians were often selected as caretakers to succeed their late husbands; this custom is rarely exercised today, as it could be viewed by some as nepotism.

In a similar vein, Nelson Rockefeller was said to be a caretaker Vice President of the United States (1974-1977). He was nominated for the office by President Gerald Ford, who had succeeded the resigned President Richard Nixon. Rockefeller made it apparent that he had no further presidential ambitions of his own (unlike many Vice Presidents), despite having run for the office three times in the past, and he had no intention of even running for a full term in the vice presidential office. He kept his intention when Ford's running mate in the 1976 presidential election was Senator Bob Dole.

In Canada, the more widely accepted term in this context is interim, as in interim leader.

In politics, a caretaker government rules temporarily. A caretaker government is often set up following a war until stable democratic rule can be restored, or installed, in which case it is often referred to as a provisional government.

Caretaker governments may also be put in place when a government in a parliamentary system is defeated in a motion of no confidence or in the case when the house to which the government is responsible is dissolved, to rule the country for an interim period until an election is held and a new government is formed. This type of caretaker government is adopted in Bangladesh where an advisor council led by the former chief judges rules the country for 3 months before an elected government takes over. In systems where coalition governments are frequent a caretaker government may be installed temporarily while negotiations to form a new coalition take place. This usually occurs either immediately after an election in which there is no clear victor or if one coalition government collapse and a new one must be negotiated.1 1.

One that is employed to look after or take charge of goods, property, or a person;

2.

One that temporarily performs the duties of an office : The government resigned, but the premier served as caretaker until new leaders could be elected.

A person who is legally responsible for the person or property of another considered by law to be incompetent to manage his or her affairs; The noun has 2 meanings: 1

http://encyclopedia.thefreedictionary.com/Caretaker+Government

Meaning # 1: a custodian who is hired to take care of something (property or a person).

Meaning # 2: an official who performs the duties of an office temporarily. 2 2.02 Background and development of Caretaker Government:

In Bangladesh the demand for neutral caretaker government largely originated from a lack of general agreement among the competing parties to maintain legitimate means of changing government and uphold unbiased election system. During the pre-independence days, the elections of 1954 and 1970 were widely acclaimed as fair polls having significant on the people's movements which ultimately led to the emergence of sovereign Bangladesh in 1971.

In the period since independence, there was, however, a gradual public alienation from the election process owing to alleged electoral malpractices. As such, election results were always a foregone conclusion rendering no positive effects on the political process. The crisis of people's confidence in the stage-managed election system reached its peak during the rule of government Hussain M Ershad. Restoration of democracy through fair polls was ultimately transformed into a united anti-Ershad movement by the combined opposition parties with a forceful demand for a neural caretaker government. Opposition formula for the formation of neural caretaker government was categorically mentioned in the 1990 Joint Declaration of the Three (political) Party Alliances. The Declaration specified inter alia that the political alliances would participate in the elections only when conducted by a neural non-partisan caretaker government; but before that Ershad government would have to be forced to resign and an interim caretaker government would be formed; thereafter, election commission would be reconstituted by the caretaker government to hold free and fair election.3 In the face of the anti-government public outburst and mass upsurge, General Ershad had to yield to the movement. As such the framework for the formation of caretaker government advanced when the Joint declaration was translated into reality on 6 December 1990 through the handling over state power to the nominee of the combined opposition Justice Shahabuddin Ahmed , the chief justice of Bangladesh. Earlier, the then Vice President. Then General Ershad stepped down from the presidency giving his charge to the Chief Justice

2

http://www.answers.com/topic/caretaker

3

The 1990 Joint Declaration of the Three (political) Party Alliances in Bangladesh.

emerging as the country's Acting President and head of the neural caretaker government.

Subsequently, 17 Adviser of the caretaker government were appointed. 4 It may be mentioned that the neural caretaker government of 1990 was constituted without any prior constitutional amendments. It was understandable that there was indeed a difficulty in convening the existing Jatiya Sangsad owing to shortage of time. The caretaker government of Justice Shahabuddin Ahmed, however, had the basis of support from the general people and political parties and thus the legality of its activities was never questioned. All measures taken by the caretaker government were thus subsequently ratified in 1991 by the popularity elected Fifth Jatiya Sangsad.

In 1990 the demand for caretaker government was raised by the mainstream opposition political parties with the immediate objective of removing Ershad government from power and restoring democracy through fair polls. Thus any future necessity for such caretaker administration during elections was not considered by the Joint Declaration of the opposition. Although there was a proposal from the left parties for conducting subsequent three elections under a caretaker government, this was not supported by the two major parties, Awami League and Bangladesh Nationalist Party (BNP).

In 1991, the restoration of parliamentary system on the basis of consensus marked a positive development. But soon disagreements on major national issues, mutual intolerance and lack of trust among the competing parties confirmed that the issue of caretaker government became the central theme of Bangladesh politics only two years after the reintroduction of parliamentary democracy 1. The opposition through sustained boycott of the Sangsad and frequent hartals tried to force the ruling party to accept their demand.

At the initial phase of their movement, opposition parties did not have unanimity with regard to the framework of the proposed caretaker government. This was visualised by three separate bills submitted by the Jamaat-e-Islam Bangladesh, Awami League and Jatiya Party to the parliamentary secretariat in 1991, October 1993 and mid November 1993 respectively. The essence of these bills was more or less similar, but differed on selection of the head of the caretaker government. While Awami League was in favour of appointing the Chief Justice as the head of the interim government, Jatiya Party proposed for selection a neural person as the head of the caretaker government, and Jamaat-e-Islami demanded for forming an advisory council headed by a neural person to be appointed by the President.

These bills, however, were not placed in the Jatiya Sangsad because of opposition boycott of the Sangsad and government's reluctance to consider the case. This made the three major opposition parties to come closer and materialise their caretaker demand through agitation and hartals. To press the ruling party, they went to the extent of submitting en masse resignation of 147 opposition parliamentarian on 28 December 1994. 5 In the face of continuous agitation of the combined opposition, the Fifth Sangsad was dissolved and preparations were underway for forming the Sixth Sangsad to enact constitution amendment for caretaker government. Having failed to convince the mainstream opposition, the ruling BNP moved unilaterally to legalise the caretaker 4

5

Fakhruddin Ahmed, The Caretaker: A First Hand Account of the Interim Government of Bangladesh (1990-91). The University Press Ltd. Dhaka, 1998.

Resignation of 147 opposition parliamentarian. Daily Star (Dhaka), 28 December 1994

government after the Sixth Jatiya Sangsad was constitution on 19 March 1996. Thus On 21 March 1996 the Thirteen Amendment bill was raised in the Sangsad, and on 26 March 1996 it was passed by 268-0 vote.6 The neural caretaker government of Bangladesh had been the products of intense opposition movement centering on the forceful demand for free and fair general polls. By legalizing caretaker government through Thirteen Amendment of the Constitution in 1996, Bangladesh has founded a unique example in the existing parliamentary system.

2.03 How Non-party Caretaker Government Appeared on Political Landscape: The demand for institutionalizing the non-party neutral caretaker government by amending the Constitution was vehemently raised after Magura by-elections held on March 20, 1994.

The election held under the then BNP government of Prime Minister Khaleda Zia was marred by unprecedented fraud, stuffing ballot boxes, intimidation and violence. Ruling BNP candidate was declared elected while the opposition demanded fresh election. This turning point in Bangladesh's political history paved the way for consolidating the mainline opposition parties against the Khaleda Zia's government on a single demand for holding future general elections under a neutral non-party caretaker government. The opposition took nearly two years to see their demand materialized through a bloody movement.

This is for the first time in the country's history that an international organization and foreign diplomats were involved in domestic politics to help find a solution of the political impasse over the demand for caretaker government through dialogue between government and the opposition.7 2.04 Constitution Amendment: Caretaker Government: As painstaking debates on reform of future interim caretaker government currently dominate the domestic 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 yest 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 13th amendment of the Constitution passed by parliament on March 26, 1996 provides several options for selecting a person as Chief Advisor.

6

Thirteen Amendment Act 1996 of the Constitution passed by Sangsad. Daily Star ( Dhaka0, 22 March 1996.

Mazharul Islam Khan & Rezaul Karim, The Making of Caretaker Government and Present Crisis- News Network, P-48 7

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 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 Justices 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 AMahmudul Amin Chowdhury are also among the retired Chief Justices. If Justice KM Hassan is unwilling to get the job, Justice Mahmudul Amin 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 is 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 13 th 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 Prim Minister and her cabinet colleagues started accusing the opposition of trying to undo the caretaker system.8 Barrister Amirul Islam on 13th Amendment Barrister Islam, one of the architects of Bangladesh Constitution and chief of the Awami League subcommittee on reforms of caretaker government, said the nonparty caretakergovernment system incorporated in the Constitution through the 13 th amendment lacks checks and balances and accountability.

"Problem of the 13th amendment regarding the appointment procedure is inherent in the amendment itself. It was a late-night legislation made hurriedly to calm down the heat of street agitation against the February 15, 1996 make-believe election," he said.

Islam suggested three to four major options - one prescribing President's consultation with major political parties on the appointment of an acceptable personality as Chief Advisor under clause 5 of Article 58C of the Constitution.

The second option is appointment of 10 Ombudsmen by a Constitution Commission to be formed in consultation with the Prime Minister and the Leader of the Opposition.

He focused on the present selection process of Chief Advisor that he dismissed as "arbitrary". To justify his ruling the jurist cited what he called "planned politicization" of the highest judiciary to make sure that an immediate-retired Chief Justice could be a party loyal.

8

Ibid, p-33

As part of this "blueprint", Islam said, the law has been amended recently extending the retirement age of Supreme Court judges from 65 to 67 to reap immediate "political benefit through the appointment of a party loyal as Chief Advisor."

Pointing out the weakness in the 13 th amendment, he said the process of appointing Chief Advisor is basically confined to a choice from among the retired Chief Justices and ex-judges of the Appellate Division Barrister Islam argued that a retired Chief Justice may be a highly respectable person and might have been a very successful judge, but that does not mean that he would be a successful administrator as well and could wisely preside over a political turmoil and hold a credible election.

"So one can't take it for granted that every retired Chief Justice by virtue of the fact that he became Chief Justice because of his seniority will be able to deliver what the nation expects," said Islam.

Another serious problem, he pointed out, is the trend of appointment of Supreme Court judges. Non-confirmation of Supreme Court Judges by the present government makes people believe that "loyalty and service to the party" are the main criteria for one to become a judge.

"The appointment is being given to these judges in such a calculation that they will become Chief Justice, retire and finally be the Chief Advisor. The blueprint is so perfect that over the next 20 to 30 years the first retired Chief Justice will be the one who will be a loyalist to a political party."

This, he thinks, has become "extremely pernicious. It becomes extremely derogatory, fast eroding the non-partisan image of the highest judiciary".

Without limiting the office of Chief Advisor to a choice among the retired judges, Islam said it should be kept open so people of similar integrity could be chosen as head of caretaker government.

"There seems to be consensus that Chief Advisor should be a person acceptable to major political parties," said the chief architect of Awami League-proposed reforms in the electiontime interim administration.

However, he observed that the provision for President's consultation with major political parties on Chief Advisor is not a permanent remedy. Because, if there is no consensus among the political parties, the President shall assume the functions of the Chief Advisor in addition to his own functions, making the President omnipotent, which is "not acceptable too."

Terming the President's consultations, as prescribed in Clause 5 of the Article 58C, an ad-hoc solution he said, " We don't want ad-hoc solution; we need to have a permanent institutional procedure". He prefers the Ombudsman system practiced in Sri Lanka.

Explaining his idea, Islam said some 10 Ombudsmen could be selected by a Constitution Commission, composed of people having honesty, integrity, experience, wisdom and nonpartisan attitude. The Ombudsmen could be picked and chosen from among the Advisors of caretaker government of 1991 and '96.

As per the new formula, these Ombudsmen will hold permanent offices for five or 10 years looking after important Ministries - and stand in as caretaker government at the time of general election.

Islam pointed out certain anomalies in distribution of powers between the President and the Chief Advisor during caretaker administration when the Defence Ministry goes under the control of the President who enjoys the power of a presidential system, contrary to the spirit of Bangladesh's parliamentary system.

Because of this weakness in present system of caretaker government, he observed, a crisis had crept in during the Justice Habibur Rahman caretaker government over the sacking of the army chief by the President. "Present system has mad the nonparty caretaker government accountable and responsible to the President," he said.

Referring to the controversies about the last caretaker government of Justice Latifur Rahman, who acted "beyond his mandate", he said that had upset the civil administration through mass transfer of bureaucrats within minutes of his taking oath.

There was a "troika" - the President, the Chief Advisor and the Chief Election Commissioner.

"Two of them brought out lists from their drawers. On the basis of one list, civil servants were wither transferred or mad OSD while another list of the Chief Election Commission brought major amendment to the eletion law making the army as law enforcers through the presidential ordinance, " he said.Under the Constitution, the caretaker government would only carryout routine function and shall not make any policy decision. Besides, Islam said, a list of miscreants was prepared and handed over to the army officers posted in different districts for elections. "The list even included the name of Awami League General Secretary Zillur Rahman."

The lawyer-politician pointed out that President Justice Shahbuddin Ahmed "did not raise his finger when these acts by the Chief Advisor and the Chief Election Commissioner were pointed out by Awami League delegation." Islam said new Chief Election Commissioner and other Commissioners must be appointed in consultation with the major political parties "to restore public confidence" in the Election Commission.9 2.05 Composition of Caretaker Government: With the passage of Thirteen Amendment, Article 58(B) (C) (D)(E) were include in the constitution which keep the following major provisions regarding caretaker government as of constitutional language: 58B. Non-Party Care-taker Government 9

Ibid, 35

(1) There be a Non-Party Care-taker Government during the period from the date on which the Chief Advisor of such government enters upon office after Parliament is dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after 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 exercised by him in according with the advise of the Non-Party Care-taker Government.

(4) The provisions of article 55(4), (5) and (6) shall (with the necessary adaptations) apply to similar matters during the period mentioned in clause (1).

58C. Composition of the Non-party Care-taker Government, appointment of Advisers, etc.

(1)Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisor, all pf whom shall be appointed by the president.

(2) The Chief Minister 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 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.

(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 not 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 Advise, the President shall appointed as Chief Adviser the person who among the retired Judge 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 qualification 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 addiction to his own functions under this Constitution.

(7) The President shall appoint Adviser from among the person who is1. Qualification for election as members of parliament; 2. Not members of any political party of any organization associated with or affiliated to any political party; 3. Not, and have agreed in writing not to be, candidates for the ensuing election of members of parliament; 4. Not over seventy-two years of age.

(8) The adviser 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 on which the prime Minister enters upon his office after the constitution of new parliament.

2.06 Functions of Caretaker Government: 58D. Functions of Non-Party Care-taker Government (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 and shall carry on the routine function 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 its 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 bolding the general election of members of parliament peacefully, fairly and impartially. 10 58E. Certain provisions of the Constitution to remain ineffective Notwithstanding anything contained in articles 48(3), 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 countersignature shall be ineffective.11

10

The Constitution of the People’s Republic of Banglades,(Thirteen Amendment) Act 1996.

11

Ibid

CHAPTER - III Election under Caretaker Government and Elected Governments 3.01Why 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 Ershad government were fraught with misdeeds, from capturing of polling booths to media coup and vote dacoity. There was unprecedented violence at the polls 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.

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. It was reported that 88 per cent of the voters had cast valid votes. The people knew that not even 5 per cent of the voters turned up to cast votes. Foreign press commented on this. Even the general elections of the administration and seats were allocated to the parties according to a prepared blueprint. The general elections were also held during martial law.

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 the Chief Executive.

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 1998, were acclaimed worldwide as an example of free and fair elections. The Election Commissioner became a symbol on neutrality. The reason for this was that the government had o stake in the elections and did not reduce the Election Commission sub-office of the president’s secretariat.

It, however, did not take long for the Election Commission to slump to the floor with the byelection of Mirpur constituency of Dhaka. There was a repetition of the ’86 election in miniature. The same incidents of stuffing of ballot boxes and interference by high officials at the counting centres and delayed declaration over of the electronic media took place. The Election Commission completed a full circle of the ’86 scene in the by-election at Magura, a constituency the Awami League had been representing since 1954. Stuffing of the ballot boxes, goons of the ruling party moving about freely brandishing weapon from microbuses, criminal released from jails to help in the election were common sights. The Chief Election Commissioner had a preview of all these and he left Magura the day before the4 election, although he had said earlier that he would be present personally on the day of eletion.

Before he left Magura he promised to make a statement from Dhaka. He did nothing of the sort and the contenders from the opposition parties rejected the election result.

This convinced the opposition that the ruling party would not hold any election which would be free and fair and it demanded that the next general elections be held under a caretaker government to ensure its fairness. On that demand, the opposition parties boycotted the subsequent by-elections. The opposition members of the parliament gave a deadline for the government to accede to the demand and that having not been done the members of parliament from the opposition parties-all 147 of them – resigned their membership.

Different opposition parties worked out the necessary amendment to the constitution to accommodate the concept of caretaker government in the Constitution.

The ruling party outright rejected the demand on the ground that this provision was not to be found in the Constitution. There is some truth in it. But then, in which country is the verdict at the polls not of the voters but is the result of the declaration of the Election Commission? The wrangle over the claim brought to Dhaka the representative of the Secretary-General of the Commonwealth. That was exercise in futility.

Pakistan is another country where the election results do not reflect the will of the people.

This was recognized by the legislature and the concept of a caretaker government was introduced by Article 48(5)b in the Constitution which reads, :When the President dissolved the National Assembly, he shall his discretion appoint a caretaker cabinet.: This is the result of Pakistan’s electoral experience.

In the Bangladesh constitution, there being no such provision, the constitution has to be amended, a task no longer possible because of the resignation of the opposition members and the requirement of Article 142(1)(a)(ii) which provides that a Bill of Amendment of the Constitution has to be “ passed by the voters of not less than two-thirds of the total number of members of Parliament.”

The Parliament has now only the members of the ruling party.

The opposition members have gone so far as to declare that they not only would boycott any election held by the ruling party but would also resists any such election from being held. The ruling party has the option of either holding the election or allowing a further crisis to brew or to step down and pave the3 say for an election under a caretaker government. A formula is afloat for the moment. The Prime Minister, however, has to resign, as soon as the date of is announced, facilitating the President to form a caretaker cabinet in terms of Article 56(A) of the Constitution. If she insists on resigning 30 days before the election the purpose of having a caretaker government will not be served. The reservation of the opposition members is because of the presence of the PM in the administration, which they contend would influence the process of the election. The country awaits the decision of the ruling party. The ruling party loses or gains whichever way it decides to steer the country to the ballot box. The apprehension of the opposition cannot be brushed aside also. Merely empowering the Election Commission or voting against identity cards will not be enough to ensure a free and fair poll. 12

12

Mazharul Islam Khan & Rezaul Karim, The Making of Caretaker Government and Present Crisis- News Network, P-60.

3.02 The election under the CTG of Justice Shahabuddin Ahmed(1991): The caretaker government of Justice Shahabuddin Ahmed took some immediate steps to create conditions for a free and fair election. The EC was reconstituted. Three Supreme Court judges were made election commissioners and the EC was given independence and authority to conduct a fee and fair parliamentary election. To ensure impartiality of the election administration at the district level, heads of civil and police administration in most of the district were transferred. And all the restrictions on freedom of press, imposed by the military rules, were withdrawn. A large number of international observer groups, most notably from the SAARC, Commonwealth, Britain and Japan were invited to observe the national parliamentary election. Election was held on 27 February 1991 and they were the whole peaceful. Fifty five percent of the voters cast their ballots, of which 53 percent were men and 47 percent were women. 1 All observer groups expressed satisfaction with the elections and deemed the process to be free and fair. 13 The results of the 1991 parliamentary elections established several trends in the country's politics (see Table 1 in the Appendix). First, it showed that the two major political parties, the AL and the BNP enjoy near equal popular support. Both parties polled 31 percent of the popular vote (BNP 31.4 percent and AL 31.1 percent). Second, the result demonstrated a wide gap between the popular vote and winning of seats in parliament. For example, with a near equal popular vote, the vote and wining of seats while the AL won only 86 seats. Third, two other smaller parties emerged. The Jatiya Party (JP), founded by the military dictator Ershad, won 35 seats and 12 percent of vote share. It may be noted that during the course of the election campaign. The Islamist Party, Jamaat-e-Islami (JI), won 18 seats with a 12 percent vote share. The left leaning National Awami Party (Muzaffar) and the Communist Party. Bangladesh, both of whom were part of an electoral alliance with the Awami League each own 5 seats. In all, small parties together with independents won 19 seats in Parliament.14 Since the AL and the BNP could not form the government on their own as neither commanded an absolute majority, JP and JI were in a position to exercise leverage over the two main parties. The BNP succeeded in getting the support of the Jammat which enable the party to secure a majority vote of confidence in the parliament. The caretaker government of Justice Shahbuddin Ahmed, then, handed over power to the BNP. Sheikh Hasina, leader of the AL, was initially reluctant to accept the election results arguing that there were "subtle" riggings but since all election observer groups agreed that the election were on the whole free and fair, she accepted the results.

3.03 Elections under the BNP (1991-1996): In the first two years of the BNP rule, there was fierce competition between the AL and the BNP in fifteen by-elections to the parliament. But serious disagreement about the fairness of the electoral process began from 1993 onward when the AL alleged that the by-election 13

Fakhruddin Ahmed, "The Caretakers: A first Account of the Interim Government of Bangladesh (1990-91)." The university Press Ltd. Dhaka, 1998.

14

Please visit: http:/www.virtualbangladesh.com/bd_polls_91.html, Last Accessed date on 02.11.2010.

in Mirpur was rigged by the BNP government. In the following year, the AL won the mayoral election in the capital city, Dhaka, and the port city, Chittagong, but the election were marred by bloody clashes between the parties, resulting in the killing of several AL supporters.

In 1994, the opposition political parties, including even the JI who helped the BNP form the government in 1991. started a nation-wide agitation demanding the institution of nonpartisan caretaker government to organise the next parliamentary election. The immediate cause of the agitation was the victory of a BNP candidate in a by-election in Magura which was an AL stronghold for over 40 years and even in 1991, the AL candidate won the seat with on overwhelming majority. The chaos and confusion over that election was compounded by the hasty departure of the Chief Election Commissioner (CEC), Justice Rauf from the scene, in apprehension of his inability to ensure a free election which lent credence to the opposition's charges of vote-rigging by the government. The failure to conduct a fair and transparent election in Magura was a blow to the image of the EC which appeared to have demonstrated its weakness in coping with the intimidating behaviour of the ruling party and the partisan conduct of the administration.15 Instead of opening a dialogue with the opposition, the BNP outright rejected the demand for a neutral, non-partisan caretaker government. In protest at the non-responsiveness of the regime, the opposition parties initiated a boycott of the parliament backed by a series of protest activities including hartals (strikes), rallies and public meetings. In December 1994, the opposition comprising nearly half of the members, 147 in total, resigned from Parliament. The country was, thereby, plunged into a full blown crisis. Several efforts were made by international organisations including the Commonwealth Secretary General, and a national citizens* group known as G-5 to mediate the crisis and bring the two sides to a negotiated settlement.16 The en masse resignation created a dilemma: whether to call for fresh elections or to hold byelections in the vacated seats. The Supreme Court ruled in favour of by-elections to be held in September 1995. In the meantime, the opposition parties intensified their agitational program and the EC used floods as an excuse to invoke the "act of God" clause to postpone the by-elections further till December 1995. On 24 November 1995, the BNP government then dissolved the parliament thus avoiding the necessity of holding by-elections in half the seats of parliament whose five year term was anyway coming to an end by February 1996. The dissolution of parliament in November 1995 made it mandatory for the EC to organise elections within 90 days, that is. by 21 February 1996.17 After changing the dates a few times, the EC settled on 15 February 1996 as the final date for the elections. The BNP and the opposition parties, however, could not resolve their differences over the need for a neutral, non-partisan caretaker government to oversee the elections. The two main protagonists. Khaleda Zia and Sheikh Hasina. refused to meet face to face and were adamant in their respective stands. The opposition eventually decided to boycott the February 1996 elections but the BNP pushed ahead with a one sided election.

15

Fakhruddin Ahmed, "The Caretakers: A First Hand Account of the Interim Government of Bangladesh (1990-91)." The University Press Ltd. Dhaka, 1998.

16 Rehman Sobhan. "Mediating Political Conflict in a Confrontational Environment: The Experience of the G-5," in Journal of Bangladesh Studies, 1(2), June 2000, pp 1-9.

17

Ibid

The voterless February 1996 elections strengthened the opposition's claims that the election results, held under a party government, could not be trusted. More seriously, it severely compromised the legitimacy of the BNP government which was reelected to power from such a flawed election. The opposition then started a nonstop, non-cooperation movement and hartal starting from 1 March 1996 demanding the resignation of Khaleda Zia as Prime Minister and fresh elections under a neutral, non-partisan caretaker government. The non-cooperation movement now drew in a cross section of civil society spreading across the country, and paralysing both the administration and arteries of communication. Government officials, concerned about the loss of legitimacy by government, refused to cooperate with the newly "elected" BNP government. Faced with a complete breakdown of the authority of the regime, the BNP government finally acceded to the demands of the opposition. It convened the Sixth parliament "elected" on 15 February 1996 which met only once to pass the 13th amendment of the constitution introducing a system of non-party caretaker government to oversee future national elections. The opposition, was initially reluctant to cede legitimacy to the 6th Parliament by recognising its right to amend the constitution. However, the opposition leaders finally accepted this arrangement as the most practical way out of the impasse.

3.04 Elections under the CTG of Justice Habibur Rahman (JUNE 1996): Five days after the passage of the 13m amendment, Khaleda Zia requested the President to dissolve the parliament and the following day, on 31 March 19%, he resigned. The President then invited the last retired chief justice, Muhammad Habibur Rahman, to take on the responsibility of CA and a ten member Council of Advisors were sworn in on 9 April 1996. Thus a two year long movement by the opposition, marked by repeated hartals and violence, came to an end.

Though the CTG system temporarily resolved the long-term impasse over Ihe organisation of a free and fair national election and was later projected as a model for other developing countries facing similar problems, the system was still not fool proof against manipulation by an incumbent government. As the discussions that follow will illustrate, two specific problems emerged in Bangladesh, First, the designation of the - last retired chief justice as the head of the CTG opened up opportunities for the incumbent government to involve the judiciary in partisan contestations. The appointment and the tenure of the judges became highly contested and controversial as all major parties started to identify judges who would be acceptable to them as the CTG head. Second, the allocation of the Ministry of Defence to the president rather than the CA created opportunities for the incumbent government to control the military via the president, who was after all an appointee of the incumbent government.

The CTG of Justice Muhammad Habibur Rahman emulated many of the steps of the 1991 CTG headed by Justice Shahabuddin Ahmed. The EC was reconstituted after consultation with all major parties and was given independence, and powers to demonstrate its neutrality and effectiveness. For example, the EC was given power to withdraw any officer on election duty or stop voting at any polling station. On the advice of the EC, again, large scale transfer of officials took place to ensure neutrality of the civil and police administration. The EC barred bank defaulters from contesting the elections.

However, in May 1996, barely a month before the scheduled 12 June election, a crisis developed due to a dispute between the President and the Army Chief which underscored one major weakness of the 13ih amendment: that is, keeping the Ministry of Defense under the control of the President and not the CA. Normally, under a parliamentary system, the defense ministry stays under the control of the Prime Minister.

Therefore, under the 13ih amendment, the defense ministry should have been placed under the control of the CA who acts as the Prime Minister in a CTG. The placement of the defense ministry under the control of the President created a dual administration and opened up possibilities for partisan interference via the office of the President. This was particularly problematic since President Abdur Rahman Biswas was not non-partisan; rather he was selected for the post because of his partisan loyalty to the BNP. On 20 May 1996, President Biswas, without consulting the CA suddenly dismissed the Chief of the Army staff, Lt. General A.S.M Nasim, and appointed a new army chief. Major General Mahbubur Rahman (who after retirement joined the BNP). This led to a near confrontation between troops loyal to the opposing sides. However, a bloodbath was avoided and the crisis was diffused when the CA, Justice Habibur Rahman, went on T.V. and radio and appealed for peace and discipline. The AL leader. Sheikh Hasina, charged that the dismissals in the army were motivated by "BNP's conspiracy to sabotage the polls." The opponents of the AL. on the other, accused General Nasim and other dismissed officers of being AL sympathisers and planning a coup.1 This charge was questionable since General Nasim had been appointed to the post of Chief of Staff, by Prime Minister Khaleda Zia, superseding several officers senior to him in the army hierarchy.

The 12 June 1996 election organised by the Habibur Rahman CTG saw large scale involvement of Bangladeshi non-governmental organisations (NGOs) in voter education and election monitoring activities. A group of civil society organisations joined together to form a Fair Election Monitoring Alliance (FEMA). In addition, a total of 200 foreign observers from 35 countries came to observe the polls. 18 Voting turn out was exceptionally high: 75 percent of eligible voters cast their ballots, of which 51 percent were men and 49 percent were women. Polling was generally peaceful. Again all observer groups, domestic as well as international, certified the elections to be free and fair.'

The results of the June 1996 elections (see Table 2 in the Appendix) again showed that the two main parties, the AL and the BNP, have almost equal popular support. The AL secured 37.4 percent and the BNP secured 33.6 percent of the popular vote. This time, however, the AL won more seats than the BNP. AL's seat strength was 146 and the BNP's 116. JP's strength remained roughly the same as in 1991. It secured 32 seats with 16.4 percent of popular vote. JI, however, suffered a setback with only 3 seats and 8.6 percent of popular support. The other smaller parties who won in 1991 lost out winning only 3 seats and 4 percent of the vote. Particularly striking was the loss of seats by all left leaning parties. Several popular leaders won from multiple seats; 24 seats were thus won. The election results indicated that in 45 seats out of the 300 member parliament electoral victory was won with a very small margin of less than 3000 votes difference. 2 These marginal seats became the subjects of much controversy and influenced coalition politics in the next election. Again as in 1991. no party was able to get an 18

Fakhruddin Ahmed, "The Caretakers: A First Hand Account of the Interim Government of Bangladesh (1990-91)." The University Press Ltd. Dhaka, 1998. 2. Ibid

absolute majority in parliament and both the AL and the BNP started wooing the smaller parties for support.19 Khaleda Zia initially refused to accept the AL as the winner and the BNP offered various deals to the JP to secure its support including a pledge to release its President, Ershad, from jail. But the JP threw in its lot with the AL which then gave the AL a clear majority in parliament. On 23 June 1996, eleven days after the election, Sheikh Hasina was finally sworn in as the Prime Minister and the AL returned to power after 21 years. One of Sheikh Hasina's first acts was to appoint a non-partisan, well-respected person. Justice Shahabuddin Ahmed, as President.

Justice Shahabuddin had already served as President and head of the first Caretaker Government set up after the fall of the Ershad regime at the end of 1990 and had earned universal respect for presiding over a free and fair election.

3.05 Elections Under The AL Government (1996-2001): Though during its tenure in government, the BNP was opposed to the notion of a nonpartisan CTG, once the AL came to power, the BNP started agitating for a more extensive system of CTG. It began to demand that all elections, including local elections, be held under a CTG system. After initially participating in several by-elections, the BNP also started to boycott the by-elections alleging vote-rigging by the AL. Within a year, from 1997 onwards, the party resorted to walking out of and boycotting parliamentary sessions, mounting street agitations and hartals, and repeatedly calling for the AL government's resignation. The AL and the BNP supporters continued to confront each other in violent street clashes all through the five years of the AL rule.

As the 2001 elections approached, to increase its vote share, the BNP entered into an alliance with two Islamist parties - JI and Islami Oikya Jote (IOJ) and a faction of JP. Since 45 out of 300 Parliamentary seats were won with a narrow margin in 1996. the BNP's election strategy was to pull together all the anti-AL votes to ensure victory in these marginal seats. 20 ' The AL, on the other hand, could not keep the JP as its ally as the JP was divided into three factions with one faction joining the BNP, and the other two contesting on their own.

3.06 Election Under The Ctg of Justice Latifur Rahman (2001); The AL government resigned after completing its five year term and a caretaker government was sworn in with the last Chief Justice, Latifur Rahman, as Chief Advisor.

Immediately after his inauguration, Latifur Rahman reshuffled many of the top bureaucrats. He also transferred the officials in the districts. These steps were taken to ensure the neutrality of the administration in the electoral process as the BNP had complained that the AL had posted partisan officials. Again, a large number of national NGOs and international observer groups monitored the election process.

Nearly 300.000 domestic observers and 250 international observers monitored the polls.

Several multi-organization civil society networks including FEMA, a new group called Election

19 20

Bangladesh Parliamentary Elections, June 12, 1996, The Report of the Fair Election Monitoring Alliance (FEMA), 1996.

Rehman Sobhan, "Misreading the October Elections: Lessons for Both Parties, " The Daily Star. 8 October 2001.

Monitoring Working Group (EMWG) and others tried to achieve national coverage of domestic observers. 21 Elections were held on 1 October 2001.

Voter turn out was high - 75.5 percent with 51.6 percent men and 48.4 percent women.

The election results again showed the AL and the BNP to be equally near in the popular vote, (see Table 3 in the Appendix).2 The AL received 40.1 percent and the BNP received 40.9 percent of the popular vote. This time, however, the seat difference between the two parties was huge. The BNP won 193 seats whilst the AL retained only 62 seats. The BNP's electoral ally, Jamaat, received 17 seats with 4 percent of the vote. Islami Oikya Jote, another partner of the BNP's electoral alliance secured 2 seats with less than 1 percent of votes. As noted earlier, the JP. divided in three factions, suffered significant loss of support. The faction headed by Ershad. which contested the election as an alliance termed the Islami Jatiya Oikya Front, secured 14 seats with 7 percent of the vote. The faction that joined the BNP alliance won 4 seats with 1 percent of the vote and the third faction headed by Anwar Hossain Manju got 1 seat with less than 1 perce* of the vote. Again the left parties could not win a single seat. Independents won 4 seats with 4 percent of the vote. Unlike the 1991 and 1996 elections, the 2001 elections produced a victor with an absolute majority in Parliament. Indeed the BNf alliance won a massive victory; a two-thirds majority in Parliament, sufficient to nal only forms the government but also to amend the constitution.

Unlike the 1991 and 1996 elections, the 2001 elections were preceded and followed by widespread violence and clashes between the rival parties.' For example, according to EMWG report between August and September 2001, 127 people were killed, 7729 were injured and 540 incidents of violence took place, all related to the elections. "The aftermath of the elections saw even more violence. For 10 days, the supporters of the victorious BNP-led coalition unleashed unprecedented violence, killing opponents, looting property and raping women. - The supporters of the BNP led coalition ousted the AL supporters from control of various key institutions to exert control over major constituencies and to extract money. The minority Hindu community, who was alleged to be AL supporters, was particularly targeted. 3 The CTG could not immediately control the situation. After initial denial the government moved slowly to stop the atrocities.22 The AL again charged that the polls had been "crudely" rigged, accusing the President. CTG and the EC of mismanagement and partisanship.4 However since the President, the EC. and the CTG had been installed by the AL government, it was difficult to convince the poll observers that all three institutions had conspired to work against the AL. Initially the AL refused to accept the results and demanded fresh polls in all 300 constituencies. However, under pressure from domestic and international observer groups, who certified the elections to be fair, the AL finally accepted the results.

The controversies surrounding the 2001 election results, and the government's . inability to control the massive post-election violence tarred the image of the I,atifur [ Kahman's CTG. While before the 2001 elections the demand was to institutionalise af Bon-partisan CTG, after the elections ensuring the neutrality of a non partisan CTG f-became the opposition's main demand.23

21 Election Day 2001: Nationwide Observations, A Report of the Election Monitoring Working Group, 2002.

22 23

Ibid Ibid

3.07 Elections Under The BNP-Led Alliance Government (2001-2006): The EC, particularly the CEC, who was appointed by the AL government and oversaw the 2001 elections which resulted in the BNP-led alliance's victory, became repeatedly embroiled in contestations with the government over the conduct of elections. In 2003, the CEC requested deployment of the army to oversee peaceful conduct of Union Parishad (lowest tier of local government) elections but the government steadfastly refused arguing that the law and order situation had improved. Failing to get government support for his request the CEC remarked that the elections would be a futile exercise.24 ' This drew much flack from the government, and in parliament some BNP lawmakers demanded that the CEC be sacked. Over a period of 51 days elections were held in 4,243 union parishads (total numbers of UPs are 4,488) which saw 80 people killed and 7500 injured. 25 Similar contestations developed between the government and the EC over the conduct of byelections. The most noteworthy was the by-election in the Dhaka 10 constituency in 2004, won by a candidate from the BNP alliance, where there were widespread allegations of vote rigging by the political opposition, media and civil society groups. The EC admitted that the election was unsatisfactory but argued that it was legally powerless to cancel the elections or challenge the results. 3 The relationship between the government and the EC deteriorated to such an extent that for several months the government stopped paying the salary due to the EC to penalise it and bring it under government control.26 From 2004 onwards, a major confrontation started between the AL-led political opposition and the BNP-led alliance government over the issue of the neutrality of the next CTG overseeing the 2007 parliamentary elections. In 2004, the BNP-led government which held a two-thirds majority in Parliament passed the 14th amendment of the constitution increasing the retirement age of the Supreme Court justices from 65 to 67 years. The AL charged that this was done to ensure that the current chief justice will not retire before 2006 which will then allow Justice K. M. Hasan. the last retired chief justice, to assume the leadership of the next CTG. As Justice Hasan had previously served as the International Secretary of the BNP and was then appointed an ambassador under a previous BNP government, the AL claimed that he was a BNP sympathiser and hence not acceptable to the AL to serve as the head of the next CTG. The AL demanded the selection of a neutral non-partisan former justice as the next CA. The BNP-led alliance government, however, refused to enter into any dialogue with the opposition over the issue of the neutrality of the next CTG. The BNP-led government also selected a new CEC, Justice M. A. Aziz. Without consulting the opposition parties. Again, the opposition objected to this selection. The new CEC soon became controversial as the EC's methods of preparing the voter's list were faulted by the political opposition as well as civil society groups. Even an independent study commissioned by the US-based National Democratic Institute (NDI) found the voter's list to be faulty. It claimed that one out of twelve names in the voters list were erroneous.27 24

Rounaq Jahan, "Bangladesh in 2002: Imperiled Democracy, " Asian Survey, XLIII(I) pp 222-229. January/February 2003.

25

Rounaq Jahan. "Bangladesh in 2003: Vibrant Democracy or Destructive Politics? " Asian Sun-ey. XLIV (1) pp 56-61, January/February

2004.

26

27

Rounaq Jahan. "Bangladesh, " in Countries at the Crossroads, op cit

One Out of Twelve on Voter List Erroneous: Reveals NDI Survey, " The Daily Star, 15 August. 2005.

In 2005, the AL formed an electoral alliance with 14 opposition parties in an effort to increase its vote share as well as strengthen its anti-government mobilisation on the issue of the CTG system. The 14 party alliances drew up a 23-point common program demanding reforms of the CTG system, the EC, and the electoral processes.2 the 23-point program demanded that the President select the CA and the members of the advisory council of the next CTG on the basis of consultation and consensus with all political parties. It also demanded that the Ministry of Defense be placed under the control of the CA and not the President. The 23-point program put forward several proposals for reforms of the EC, which included appointment of the Election Commissioners on the basis of a consensus agreement among all parties and the institutional station of the independence of the EC from the control of the government. It further pledged political party reforms, including the elimination of influence of black money and muscle power from the election process.28 The sweeping measures, endorsed by the 23 points attempted to include some of the demands voiced by civil society groups and the media who have been agitating for several years for clean politics and clean candidates. While the two main parties were locked in a deadly game of confrontational politics blaming each other for undemocratic behavior, media and civil society groups emphasized the democracy deficits of both parties.29 They voiced demands for governance and political reforms. Governance reforms included eradicating corruption, reversing the politicization of the government machinery, restoring the rule of law, and establishing transparency and accountability. Political reforms included democratizing decisionmaking within political parties, removing the influence of black money and mastaans (muscle men) in part\ and election politics, establishing transparency in campaign finance and so on.

Many of these demands for reforms found their place in the Report of the Nagorik Committee 2006, a citizens' forum established to mobilize public opinion in support of a vision and policy agenda to move the country forward.30 However, civil society's campaign for clean politics had little impact on the actual behavior of the political parties. The two contesting political alliances continued to "sell" their nominations to prospective candidates who could capture votes through money and muscle power. At the same time, while the AL-led 14-party opposition was preparing to participate in the 2007 elections, it threatened that it would boycott the elections if the government did not accede to its two demands: appoint the next CTG head and a new CEC on the basis of a consensus between the government and the opposition.

Civil society initiatives as well as moves by the international community failed to broker a peaceful negotiated settlement between the two contending political forces to resolve the impasse over the CTG and the EC. The government pushed ahead with its plans which the opposition branded as "election-engineering."

28

Ovinnya Nunnatama Karmashuchi, Minimum United Program, The AL, 11-Party, JSD, and NAP. November 27, 2005.

Rounaq Jahan, "Bangladesh at a Crossroads, " Seminar. 576 (August) 2007, pp 57-62.

30 Please visit: hltp://www.cpd-bangladesh,org/polic percent20 briefl/index.html, Last Accessed on 23.11.2010.

29

CHAPTER -IV Caretaker Government of 2006, 2007 & 2008 4.01 Political and Constitutional crisis of Caretaker Government in 2006 -2007 The four-party coalition headed by the Bangladesh Nationalist Party (BNP) with two other ultrarightist religious parties (Jamat-e- Islami and Islami Oikko Joute), and a faction of the Jatiyo Party was elected in 2001 with more than a 75% majority (1) , defeating the immediate past Awami League (AL) government. In the first general election held in 1996 under thirteenth amendment of the constitution, the AL won by defeating the BNP led government of 1991-96.

Thus, it appeared that democracy in Bangladesh was on the path to consolidation.

During its term of office (2001-06), the government continually manipulated the constitutional process by appointing people loyal to it and by designing institutions and laws to perpetuate its rule u). From day one in office, it started reorganising the Election Commission31, the police, the civil service, the army. Public Service Commission, university administrations, etc. Hundreds of police and defence officers lost their jobs ( \ The party faithful were recruited into the police force and the public service. In short, all branches of the administration were filled up with supporters of the party. The loyal Election Commission also manipulated the electoral roll. The government then created a new elite security force, Rapid Action Battalion (RAB), in the name of combating the deteriorating law and order situation.

Hundreds of people died in the custody of this force. The official explanation for each death in custody was the same; namely, friends of the detainee attacked to snatch the accused and in the course of a gunfight that followed, the accused died in the crossfire.

The newly elected four-party coalition government appointed Mr Justice K M Hasan as the Chief Justice, ignoring the long-held tradition of appointing the most senior judge of the Appellate Division of the Supreme Court as Chief Justice. Mr Justice K M Hasan, before becoming a judge of the High Court Division, was the International Secretary of BNP. The judges in Bangladesh can remain in office till they are 65 years of age. At the end of his tenure of office at the age of 65, the government appointed another judge of the Appellate Division, once again, overlooking two other senior judges. The government then amended the constitution by extending the retirement age of judges from 65 to 67 so that the newly appointed chief justice would retire after the formation of the caretaker government. Thus, the amendment made sure that Mr Justice K.M Hasan remains as the immediate past chief justice so that he can assume the office of the chief adviser of the caretaker government. 32 Simultaneously the ruling coalition had been interfering in the functioning of the Election Commission and was taking measure that smacked of preparing the country for a rigged election. Some of the measures in this direction include:

31

The Election Commission was filled with hardcore government supporters. The Election Commission appointed 345 new subdistrict (vpaztla) election officers from amongst the cadres of the governing parties. Administratively, Bangladesh is divided into 6 divisions. 64 districts and 464 upazila (sub-districts).

32

For a discussion on the appointment of the Chief Justice and other judges, and the manipulation of p&ciory during this period,

see Hague, above n 17.

 Widespread appointment of party cadres as Election officers at district and Upazila council levels.  Failure to introduce delimitation of Jatiya Sangsad constituencies in the wake of the last population census held before the eighth parliamentary election in 2001.  Chief Election Commissioner MA Aziz, seen as sympathetic towards the BNP, unilaterally drew up fresh voters list despite a Supreme Court judgment directing the Election Commission to revise the existing voter list.(3)  The EC published the 'draft' of the fresh electoral roll in the midst of an ongoing legal battle initiated by the oppositions parties while its hearing was pending with the Appellate Division of the Supreme Court.(4)  Meanwhile since August 2005 Chief Election Commissioner Aziz had serious differences with other Election Commissioners M Munsef AH and AK Mohammad AH over the issue of preparation of fresh voters list. Needing to bolster his position Aziz inducted two new Election Commissioners Mahfuz and SM Zakaria and thereby increased his influence over the decisions of the EC. These measure raised concerns in the opposition over elections being free and fair. Thus the neutrality of two institutions pivotal for holding elections, namely head of the Caretaker Government and Election Commission, came under cloud. When the five-year tenure of Khaleda came to an end on October 2006, there were uncertainties over the ability of an interim arrangement capable of holding impartial elections.33 Last minute negotiations between the BNP and Awami League over the nominee of the Chief Advisor proved futile. While the Awami League was not prepared to accept Justice K M Hassan, the nominee of Khaleda, the latter was not prepared to accept the candidatures of Justice Mahmudul Aniin Chowdhury and Justice Hamidul Haque preferred by the opposition. The impasse was worsened by widespread violence in different parts of the country and the capital city was cut off from the rest of the country. Sensing widespread opposition Hasan withdrew his candidature for the head of the Caretaker Government.

When Prime Minister Khaleda Zia left office on 25 October 2006, there was no Chief Advisor who was prepared to take over the reigns. The parliament was also dissolved on its expiration of tenure. Without exhausting other options available under the Thirteenth Amendment Act 1996, the President assumed the office himself.34 So he was the President and, at the same time, also the Chief Adviser (Prime Minister). Thus, the very purpose of the Thirteenth Amendment to establish a neutral non-party caretaker government to hold a free, fair and credible election was defeated, with the titular President, being a nominee of the previous political government, assuming the role of the real head of the caretaker government. The assumption of the role of prime minister by the titular President, combining the two roles, was also against the principles of parliamentary democracy and, as such, was also against the basic structure of the Constitution. This combination of two separate constitutional positions by the President without exhausting other options stipulated in the Constitution has expectedly created a number of controversies including a challenge as to its validity in the Supreme Court. The way the Chief Justice interfered in the proceedings of this challenge, and in 33 34

Editorial. 'EC makes fresh mess'. The Daily Star, 7 May 2006 The Constitution of the People’s Republic Bangladesh, Thirteenth Amendment Act 1996.

another case concerning various disclosures by the candidates before the election, created widespread resentment and even violent outbursts both inside and outside the court. These unprecedented interventions of the Chief Justice in judicial proceedings of direct public interest precipitated the problems.

After assuming the office of Chief Adviser to the caretaker government, the President then appointed a 10 member advisory council. The general election was scheduled to be held on 22 January 2007. The failure of the President, as the Chief Adviser of the caretaker government, in maintaining neutrality (the very basis of the Thirteenth Amendment) further worsened the crisis. Apart from the legality of the combination of presidential and prime ministerial powers in one hand, the President often ignored the advice of the advisers.

Consequently four advisers resigned in protest. 35 As a result of the opposition's demand for a reorganization of the Election Commission, the government then appointed two new election commissioners. These two new commissioners were also known supporters of the BNP. There were a number of newspaper reports that the President was acting under advice from the outgoing government. Thus, the new appointments further exposed the political bias of the President. Once more, almost all major opposition parties decided to boycott the general election as they feared that free and fair elections were not possible under that caretaker government headed by the partisan President, acting in favor of a political party, in breach of the oath of office. Moreover, on 11 January 2007, the majority of his advisers decided not to support a decision to go ahead with election on 22 January without the participation of opposition parties. In situation, the international community was also urging to postpone the election as the absence of the opposition parties, the election would not be a credible one and given the political history of the country, it would be likely to lead to series destabilization and civil unrest. The European Union and other international observers decided to withdraw from monitoring the election. The Preside 'focused more on the timeliness of the elections than on their fairness, ignoring many signs that their credibility was eroding'.36 The situation gradually worsened with political rivalries being played out violently a the streets of Bangladesh and the opposition threatening to lay siege to Presidents house. Meanwhile on 22 November CEC Aziz went on leave following widespread street protests and campaign around his office in Dhaka. On 10 December Army vae briefly deployed in Dhaka and there were widespread fears of an impending civil w between rival groups. It was under these circumstances on 10 January 2007 that President lajuddin Ahmad relinquished the office of Chief Advisor and nominated noted economist Fakhuruddin Ahmed to the position.

The second Caretaker Government headed by Dr. Fakhuruddin Ahmed since II January 2007 comprised of technocrats and was politically neutral and hence was udl received. Along with this interim government, the President imposed a state of emergency, suspended a number of civil liberties and banned political activities. Within days of assuming responsibility, the Caretaker Government announced the postponement of Jatiya Sangsad election scheduled for 22 January. In its assessment vitiated by political tension the atmosphere was not conducive for holding elections.

35

A' M Masudul Hague, 'State, Law and the Emergence of Public Enterprises in Bangladesh' in Critical Reflections on Law and Public Enterprises in Bangladesh (PhD Thesis. Warwick University. 1992) 36 'Pressure on CA mounts to ensure all-party poll', The Daily Star, (Dhaka), 9 January 2007.

4.02 Step down of first Caretaker Government: The situation as discussed in the previous chapter gradually worsened with political rivalries being played out violently in the streets of Bangladesh ' and the opposition threatening to lay siege to President's house. Meanwhile on 22 November CEC Aziz went on leave following widespread street protests and campaign around his office in Dhaka. On 10 December Army was briefly deployed in Dhaka and there were widespread fears of an impending civil war between rival groups. It was under these circumstances on 10 January 2007 that President lajuddin Ahmad relinquished the office of Chief Advisor and nominated noted economist Fakhuruddin Ahmed to the position.

4.03 New Caretaker Government and its activities: The imposition of internal emergency put the Caretaker Government in a unique and unprecedented situation with the army emerging as its principal backer. The prolonged political uncertainty, tension and street violence meant that internal emergency was well received. Bangladeshis hoped not only for the restoration of law and order but also for some fundamental reforms in the politics of the country. For its part the interim government promised to maintain strict neutrality and urgently address issues such as corruption and malpractices.

In his first nationwide address on 22 January, the Chief Advisor outlined a comprehensive seven-point 'reform' program which was aimed at meeting 'people's demand* of uprooting corruption, introduction of voters identity cards and transparent ballot boxes. They were aimed at ensuring "an election participated by and accepted by all." The roadmap outlined by the Caretaker Government promised all necessary support to the Election Commission for holding Jatiya Sangsad elections by October 2008.37 While the army has reiterated its resolve to remain professional and apolitical, it has provided the most visible support to the Caretaker Government. Despite its civilian face, the composition of the Caretaker Government exhibited certain ground realities. Two most coveted posts, namely, heads of the Anti Corruption Committee (ACC) and Election Commission, were given to retired generals.

Apart from measures aimed at reforming the political system, the Caretaker Government has also endeared itself with a number of populist measures. These include: Execution of six leaders of the extremist group Jama'atul Mujahideen Bangladesh on 29 March 2008, well before the scheduled date given by High Court.

Chief Advisor Fakhuruddin Ahmed establishing his non-partisan credentials by paying his homage at the grave of Bangabandhu Sheikh Mujibur Rahman on his birth anniversary (17 March) and at the grave of President Ziaur Rahman on his death anniversary (20 May);  Securing the deportation of former army officer Mohiuddin Ahmed from the US on 18 June. The former officer who was convicted of killing Sheikh  Mujibur Raham fled to the US.

   

37

Editorial.' Parties stooped too \ow\The Daily Star, 6 December 2006

 Initiating the process of separating the judiciary from the administrative control of the Executive and thereby establishing the Independence of judiciary.  Reconstitution of the Election Commission and approving proposal of its independence from the Executive.  Announcing of Upazila elections which will be held in December 2008. > Implement various others reforms in garment industry and other local industries  Corporatization of nationalized banks.  The Chittagong Port has been privatized.  The interim government has also seriously considered activating the National Security Council, which features the three chiefs of staff of the armed forces, though it is headed by a civilian. Although the details are not yet known it is clearly a move which is likely to strengthen the control of the military over civilian governments.  Reconstitution of Anti Corruption Commission, with Hasan Mashhud Chowdhury, a retired lieutenant-general its head and also enhancing its powers to prosecute senior political leaders, powerful bureaucrats and businessmen identified with various political groups.  Decision to ratify the United Nations Convention Against Corruption (UNCAC) which would allow Bangladesh to benefit from a comprehensive international cooperation framework for mutual law enforcement assistance, especially in extradition and investigations.  As an integral part of its anti-corruption drive the Caretaker Government established Truth and Accountability Commission. Under its provisions those persons suspected of corruption would be given an opportunity to admit their wrong doings before the commission and return their ill-gotten wealth to the state. In return the state promised limited amnesty for them. Differences however, exist over the extent of amnesty and the accompanying conditionalities such as ban on contesting elections or holding public offices for a five-year period.  Constituting of various independent task forces with over arching powers as a part of the anti-corruption drive. As a result scores of political leaders, party activists, highprofile bureaucrats and businesspersons have been arrested.  As part of reforming the electoral process in August 2007 the Caretaker Government approved the enumeration of fresh voters list which was eventually completed on 9 July 2008. This process not only resulted in a fresh voters list but also the distribution of photograph-accompanied voter identity cards. Bangladesh thus became the proud owner of world's largest electronic database with over 81 million voters.38 Despite its non-political nature, there were clear indications that the Caretaker Government unsuccessfully wanted to marginalize the two main political parties and their leaders. Commonly known as 'minus two' formula, it sought to marginalize the two leaders who have dominated the Bangladesh politics for the past two decades namely Khaleda and Hasina. Capitalizing on the widespread popular discontent against the politicians, the Caretaker Government was seen to be engineering splits within the two large parties. It was widely believed that the interim government was even hoping that noble laureate Muhammad Yunus would float a nonpolitical outfit that could take part in the Jatiya Sangsad elections.

38

List of 8.11 cr voters handed over to EC, Bangladesh News 15 October 2008

Once this failed, the Caretaker Government embarked upon a strategy of creating internal dissent within the two parties. The formation of a small BNP faction led by Abdul Mannan Bhuiyan and growing criticisms of 'cronies' controlling the BNP was part of this strategy. The Caretaker Government was also pressurizing both the leaders to go into exile. When the expected split did not take place, the government changed its stance. While it wanted to prevent Hasina from returning from her medical treatment abroad, it hoped to send Khaleda into exile. Both these efforts, however, could not materialize due to public pressures. Even though political activities continue to be banned, behind the scene pressures appeared to throttle these efforts.

Eventually the Caretaker Government brought them under the purview of its anti-corruption drive and arrested Sheikh Hasina and Khaleda in July and September 2008 respectively. There were suggestions that the government was preparing a list of political figures who were convicted in the special courts for corruption or who were facing corruption charges. The list was believed to contain the names of 110 former Ministers and Members of Parliament belonging to the BNP, 25 former ministers and MPs belonging to the Awami league and five Jama'at political personalities.39 However, the political impasse was broken when the Caretaker Government initiated formal dialogue with various political parties. As a first step towards the electoral process it lifted the ban on indoor politics in Dhaka. The government has also assured the two major parties that it would take appropriate measures for spontaneous electioneering and would ensure security during the voting.

After months of hesitation in September 2008 the Election Commission extended an olive branch to the political parties. ' For their part, fifteen political parties came out in support of the electoral process. Under the new electoral procedure the political parties would have to introduce internal democracy and transparency. The three month long dialogue process was expected to end in last week of November and would facilitate the finalization of the draft of the electoral reform proposals in preparation for the Jatiya Sangsad elections. The draft proposal would also make public personal details like academic qualification, profession, source of income and criminal records of an aspirant seeking votes. Earlier it had posed a stringent code of conduct for the political parties aimed at reducing election expenditure and ensuring financial transparency.

Despite their opposition to the prolongation of the interim government, various political parties have decided to register themselves with the Election Commission and abide by new regulations. These parties include: Bangladesh Nationalist Party. Awami League. Bangladesh Jamaat-e-Islami, Jatiya Party led by Ershad. Jatiya Party led by Manju. Workers Party of Bangladesh, Samyabadi Dal, Krishak Sramik Janata League. Communist Party of Bangladesh, Bikalpadhara Bangladesh, National Awami Party (Muzaffar) and Jatiya Samajtantrik Dal (Inu).

4.04 Struggle for new elections: On 5 April 2007. the county's chief election official declared that the elections would need to be pushed back at least eighteen months.2 On 12 April, Ahmed announced in a televised speech to the nation that the next parliamentary election would be held before the end of 2008.' On 15 July 2007, the Election Commission of Bangladesh published a road map for the election, promising a compilation of voter lists by October 2008 and an official election call before the end of that year.40 The constitution of Bangladesh, however, provides holding election within 120 days of the formation of a caretaker government.

39 40

M Abut Kalam Azad, EC declares polls fixture Decides to hold upazila polls 10 days after Dec 18 S elections, Daily Star, 3 Nov 2008 Liton, Shakhawat (16 July 2007). "Voter list by Oct '08, poll by Dec". The Daily Star.

After the election, the parliament will have to elect the next President of Bangladesh. The election should have taken place by 5 September 2007 when lajuddin Ahmed's term expired, but the election was postponed due to the lack of an elected parliament.3 On 9 September 2007, Ahmed addressed the nation and recalled indoor politics with strict conditions to facilitate preparation for the election and reaffirmed his commitment to hold the election on time or earlier.41 In early October, the Chief Electoral Commissioner stated elections could be held

by October 2008 if the electoral roll could be compiled by July 2008."

Talks between the government and two smaller parties started on 22 May 2008. with the government indicating it would hold talks with all parties in short time. 6 However, both the Awami League and the BNP declined to attend these talks as long as their leaders were still detained.7 Voters lists were announced to be ready on 22 July 2008.42 On 4 August 2008, local elections were held in Sylhet, Khulna, Barisal and Rajshahi.(> BBC News reported that the candidates supported by the Awami League party won twelve of the thirteen city corporations and municipalities voting, according to election commission officials. 10 Finally, Chief Adviser Ahmed announced on 21 September that the general election would be held on 18 December.''

Election banners of candidates promoted across many cities in Bangladesh The BNP called for a delay of the election until January 2009, while the AL was against such a delay. As a compromise, the election was postponed from 18 December to 29 December. In a response to the demand of the major political parties, on 17 December 2008, the two-year-long state of emergency was lifted.'

4.05 Election under the CTG of Dr. Fakhruddin Ahmed (2008): The general election took place on December 29, 2008. The voter turnout of 80 percent (81 million eligible voters) was the highest in the history of Bangladeshi elections. This was the first time elections used national ID cards with photographs to avoid bogus voting, which was an UN-funded initiative of digital electoral roll. 3 Prior to the elections, 11 million false names could be removed from the voter lists. 4 About 50.000 soldiers of Bangladeshi Army and 600,000 police officers were deployed to guard against election fraud and violence.

However, two people were killed in post election violence/ 200,000 electoral observers, including 2,500 from outside Bangladesh, monitored the elections and confirmed their free and fair nature. Before the elections, the army-backed caretaker government took measures to eliminate corruption from the process. In this election Awami League wins a landslide victory (see Table 4 in the Appendix for results).

After losing a majority of seats, Khaleda Zia's party had alleged that election irregularities were to be blamed. They alleged that BNP party supporters were kept from voting and their polling agents and officials were barred from performing their duties.

4.06 Views of different parties prior to Election 2008: Awami League (AL) in its draft electoral manifesto pledged to review, if needed, the caretaker government system and will continue electoral reforms to strengthen the country's election system. ' 41 42

Ban on indoor politics relaxed". The Daily Star. 10 September 2008.

Dummet, Mark (5 September 2007), BBC news. "Bangladesh president to continue".

AL policymakers made plans to come up with the promise as the formation and function of the caretaker government since October, 2006, has been mired in controversy, resulting in the long delay in holding the national elections, party insiders said.

The AL's draft electoral manifesto says that if the party is voted to power, a reliable election system and regular elections will be ensured, if needed through a close review of the caretaker government system. "We envision a democratic system where people choose their government freely and get services from it without hassle, enjoy freedom from fear and intolerance, live with dignity and be sure of social justice..." says the draft manifesto.3 To bring any changes to the caretaker government system, introduced in 1996 J following a movement, requires amending the country's constitution.

If the AL-led electoral alliance wins in the upcoming parliamentary election set for December 29 and is able to manage two-thirds majority in parliament, it can easily proceed with its electoral pledge.

However, if the AL-led alliance fails to get two-thirds majority, it will have to depend on the opposition's support in parliament to decide the future course of the caretaker government system.

"As it will be a major change, we need consent of all political parties in parliament," AL Presidium member Abdur Razzak told The Daily Star. '43 Replying to a query he said, "We will decide on the matter at the next parliament and experiences of earlier elections including the December 29 national elections under the caretaker government system will be reviewed prior to making any decision in this regard."

Talking to The Daily Star Jatiya Party (JP) Presidium member Ziauddin Ahmed Bablu said there would be no problem in holding a free and fair election if the country has a strong and independent Election Commission, judiciary and Anti-Corruption Commission.

"Due to the controversial caretaker government system, the January 11. 2007. changeover took place. It cannot deal political things since the caretaker system is non-political. There is no need for the system," he said, adding that if the AL-led grand alliance is voted to power they would raise the issue in parliament for the present system's abolishment.44 Implementation of another AL promise to increase the number of reserved seats for women in parliament to 100 from the current 45 and direct election of those also requires amending the constitution.

The other major electoral alliance led by BNP is, however, yet to express their stance on the future of the caretaker government system or reserved seats for women.

43 44

Change should be brought in CTG system". The Daily Star, 5 December 2008.

Debate on CTG system going on". The Daily Star, 7 December 2008.

The Daily Star got a copy of the draft manifesto which says that the AL, if voted to form the government, will continue reforms to the Election Commission (EC) and the election system.

In the wake of widespread controversy over the jurisdiction of the caretaker government and its current long tenure, many political analysts have observed that time has come to review the system.

4.07 Ongoing debate after Election 2008: A political debate on Caretaker government system of Bangladesh is ongoing among the politicians. The rolling party Awami League (AL) general-secretary Syed Ashraful Islam said that the caretaker government 'experiment' had failed, and a national debate should decide whether or not to continue with the system. Before that Deputy leader of parliament Syeda Sajeda Chowdhury had called the parliament members to abolish the caretaker government system on June 28 during the budget session of parliament.45 AL MP Suranjit Sen Gupta also advocated the repeal of the system.

Later the main opposition party Bangladesh nationalist party (BNP) reacted that and said, "Awami league want to capture the power again by the election manipulation.46 On the other hand an adviser to the prime minister said on 20 August, 2009 thai the government is not considering the cancellation of the caretaker government system at the moment though some ruling Awami League leaders have been speaking for it.

"The government has made no decision on the abolition of the caretaker government system,1' Alauddin Ahmed, who advises Prime Minister Sheikh Hasina on education, social development and politics, he said in New York on 20 August, 2009.47 Awami league GS said the time had come to rethink the interim government system, and all those involved in the electoral process should debate the issue. ''Let the Election Commission consider the opinion of all the political parties on the matter," said Ashraf, the local government minister.2 He criticized the caretaker governments of 1991, 2001 and 2006; although he conceded that the AL had called on a caretaker government to assume power at the end of the last BNPled administration.

On the other hand the Chief election commissioner ATM Shamsul Huda recently said it was possible to hold free-and-fair elections under a political government. AL leaders proposed to the Election Commission to consider the opinion of all the political parties on the matter.

BNP secretary general Khandaker Delwar Hossain criticised Syed Ashraf for his comments over caretaker government on Wednesday. Delwar said the AL-Ied Grand Alliance government was intent on doing away with the caretaker government system since it wanted to control the next elections.

Chief election commissioner ATM Shamsul Huda on Aug 12, 2009 said that "the caretaker government system was for political parties to decide and the EC's main concern was the security of the voters. 48 The other election commissioners told on Aug 19, 2009 that "the EC was unwilling to discuss the issue of whether the caretaker government system should remain during the planned upcoming dialogue with political parties, A national debate 45 46 47 48

Sajeda Chowdury asks to abolish CTG system', Bangladesh News 29 June 2009.

Awami league want to capture the power again by the election manipulation.' The Daily Star. 30 June 2009.

Awami league want to capture the power again by the election manipulation.' The Daily Star. 30 June 2009.

Caretaker government system was for political parlies concern" The Daily Star, 12 August, 2009.

should decide whether or not to continue with the system. But it would not be on the Election Commission's agenda, they added..49 The system was introduced after the political unrest in 1991. The AL strongly advocated the system at that time, while a reluctant BNP eventually conceded to the proposal. The two main political parties have reversed their role on the issue.

CHAPTER - V Comparative Study and future of Caretaker Government 5.01 Comparative study with other country: Caretaker Government in Pakistan According to the constitution of Pakistan, as it stands following the Legal Framework Order (LFO) 2002, article 224 stipulates the provisions of a caretaker government.

The proviso added to article 224 (1) under the LFO reads as follows: "Provided that on dissolution of an Assembly on completing of its term, the President, in his discretion, or, as the case may be, the Governor, in his discretion but with the previous approval of the President, shall appoint a care-taker cabinet. 50 Article 224 (7) which were also added as a part of the LOF reads as follows: "When a care-taker Cabinet is appointed, on dissolution of the National Assembly under Article 58 or a Provincial Assembly under Article 112, or on dissolution of any such Assembly on completing of its term, the Prime Minister or, as the case may be, the Chief Minister of the care-taker Cabinet shall not be eligible to contest the immediately following election of such Assembly."

These two clauses of Article 224 of the Constitution of Pakistan do not expressly call for a non-partisan or neural caretaker government but the fact that the Prime Minister and Chief Minister will not to be eligible to contest the election introduces a certain degree of neutrality to the provision of a caretaker government. It is however significant that this ineligibility does not expressly extend to other members (Minister) of the caretaker government. Another important thing to note is that the caretaker government will be appointed in the sole discretion of the President. No qualification or limits have been placed on this discretion. It is also important to note that a continues in hir or her office during the election for the National and Provincial Assemblies.

Incase the President is perceived to be partisan or biased, the caretaker government alone will not be able to address the issue of providing a neural government during the election phase. This also implies that the spirit of the Constitution does not envisage a partisan President.

Caretaker Government in India India, unlike Pakistan does not have a neural caretaker government system for elections.

The government at the time of dissolution of Lok Sabha (House of the People) usually 49 50

EC was unwilling to discuss the issue of caretaker government system". The Daily Star, 19 August, 2009.

The constitution of Pakistan (Legal Framework Order 2002).

continues until the election process is completed and the new government is ready to take over. Article 75 of the Constitution of India permits the Ministers including the Prime Minister to continue for six months without being the 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.51 Caretaker Government in Australia In Australia the term caretaker government is used to describe the government during a period that starts when the parliament is prorogued by the Governor-General prior to a general election, and continues for a short period after the election, until the next ministry is appointed. The caretaker government is expected to conduct itself in ministry is appointed. The caretaker government is expected to conduct itself in accordance with a series of well-defined contentious that are administered by the Department of the Prime Minister and Cabinet (2), although there is no law compelling the caretaker government to do so.

Under normal circumstances, there is no separate appointment of a caretaker government.

The existing government simply assumes "caretaker mode". During the 1975 Australian constitutional crisis, the Governor-General, Sir John Kerr, appointed A new government headed by Malcolm Fraser, subject to Fraser's agreement that he would immediately advise a general election, and his government would operate on a caretaker basis in the meantime. This was a unique set of circumstances, leading to unique solution.

The incumbent government continues to govern after parliament has been dissolved. The operation of the Australian political system ensures that a Cabinet is always maintained and that caretaker government abide by the conventions. Any flouting of the conventions by a caretaker government would immediately come to light, and could go against them in the election campaign. There are occasions when major appointments or decisions cannot wait until after the election, and the opposition would normally be consulted about them, ensuring a bipartisan approach.

A document entitled "Guidance on Caretaker Conventions" is administered by the Department of the Prime Minister and Cabinet. Section 1.2 of the Caretaker Conventions states that a caretaker government operates until the election result clearly indicates that either the incumbent party has retained power, or in the case where there is to be a change of government, until the new government is appointed by the Governor-General. Section 1.6 indicates that these conventions are not legally binding, and do not constitute "hard and fast rules."52 The Caretaker provisions explicitly recognize that, after the dissolution of parliament, the business of government must continue and that "ordinary matters of administration" must be addressed. Hence the provisions allow for the normal operations of all government departments. However, the caretaker conventions impose some restrictions on the conduct of the caretaker government. The contentious broadly include the following: •

51 52

Major policy decisions. The Government will cease taking major policy decisions except on urgent matters and then only after formal consultation.

The Constitution of India.

Guidance on Caretaker Conventions- Department of the Prime Minister and Cabinet.

•

• •

• •

with the Opposition. The contentious apply to the making of decisions, not to their announcement. Accordingly, the conventions are not infringed where decisions made before dissolution are announced during the caretaker period. However where possible, decisions would normally be announced ahead of dissolution.

Significant appointments. The Government will cease making major appointments of public officials, but may make acting or short-term appointments.

Major contracts or undertakings. The Government avoid entering major contracts or undertakings during the caretaker period. If it is not possible to defer the commitment until after the caretaker period, for legal, commercial or there reasons, a minister could consult the Opposition, or agencies could deal with the contractor and ensure that contracts include clauses providing for termination in the event of an incoming government not wishing to proceed. Similar provisions cover tendering.

International negotiations and visits. The Government ordinarily seeks to defer such major international negotiations, or adopts observer status, until the end of the caretaker period.

Avoiding APS involvement in election activities. The Australian public Service adopts a neutral stance while continuing to advise the Government. There are several cases, notably the pricing of Opposition election promises. in which the APS conducts an investigation and report for the benefit of the electorate at large.

5.02 Caretaker Government in Bangladesh: Bangladesh is a parliamentary system with a largely ceremonial President who is elected by the Parliament. The Executive is embedded is the Legislative, similar to the Australian Westminster style systems.

Bangladeshi caretaker government consists on the light of Australian caretaker government in 1975 headed by Malcolm Fraser, but a Bangladeshi government did not honour the caretaker convention, and the Bangladeshi unwilling to trust any party machine with the caretaker convention, took the running of government themselves during this 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 advisor cannot be members of parliament, cannot be running for election, cannot be members of a party and must be under seventy-two year's age. This mixes community specialists with a judicial specialist.

The constitution grants the Chief Advisor and Advisor the remuneration and status of the prime Minister and Minister respectively during this period.

5.03 Future of Caretaker Government in Bangladesh: Bangladesh joined what Samuel P. Huntington had called the "third wave of democracy53 after a people's movement toppled 15 years of military rule in December 1990. In the next 15 53

Samuel P. Huntington, "Democracy's Third Wave," Journal of Democracy 2(2), pp 12-34, 1991.

years, the country made gradual progress in fulfilling the criteria of a "minimalist democracy"2regular free and contested elections, peaceful transfer of governmental powers as a result of elections, fundamental freedoms, and civilian control over policy and institutions. Bangladesh organised three successive national parliamentary elections in 1991, 1996 and 2001, which were certified as free and fair by national and international observers. As a result of the elections, state power rotated more or less peacefully (based on constitutional guidelines) between the two major political parties - the Awami League (AL) and the Bangladesh Nationalist Party (BNP) - with the incumbents being defeated both in the 1996 (BNP) and the 2001 (AL) parliamentary elections. During this time, the media and civil society became free from overt government control. The military remained under civilian control showing little interest in getting involved in domestic politics. Instead it became increasingly drawn to international peacekeeping operations.

However, despite these achievements, there were indications that the country was not making significant progress in consolidating its democratic institutions. Over the years, democratically elected political leaders started behaving in an autocratic manner using state power to reward political supporters and punish and repress political opposition. The country gradually turned into what Farced Zakaria has termed an "illiberal democracy.54 The rule of law started breaking down as successive elected governments began to misuse state power for partisan and personal gain.

Increasingly the judiciary, particularly the lower judiciary, civil bureaucracy, police and other institutions of government began to lose their autonomy as they were also brought under partisan political pressure by successive governments. ' Horizontal accountability mechanisms, a critical feature of democracy, instead of being strengthened, started eroding.

Over the years, political competition between the two major parties, the AL and the BNP, degenerated into political confrontation. The parties and their leaders shunned the path of democratic dialogue and tolerance of dissent, embracing instead the politics of street agitation and violence. The politics of exclusion and violence created increasing pressure on the fragile democracy and after three national elections; it became difficult to maintain even the minimalist democratic criteria of organising free and fair elections.

As discussed in the previous chapters, Bangladesh initiated an innovative system of Caretaker Government (CTG) to ensure organisation of free and fair elections. The first CTG in 1991 was an ad-hoc arrangement when, after the overthrow of the military rule by a mass movement, a civilian non-party government headed by the then Chief Justice, was installed to organise a free and fair election. The CTG system was later institutionalised in the wake of another mass mobilisation led by the AL, following widespread allegation of vote rigging by the incumbent BNP government in a parliamentary by-election held in 1994.

Three successive elections held under CTG system and also in the Elections under the BNP and AL Rule which is discussed in the previous chapters. In the light of the previous chapters we can illustrate the weakness of CTG. WEAKNESS OF CTG In the period of CTG of Dr. Fakhruddin Ahmed, it was observed that with the change in the political scenario in Bangladesh and government becoming more lenient towards corruption and corrupted politicians and giving more importance towards an election with the participation 54

Fareed Zakaria, The Rise of Illiberal Democracy, Foreign Affairs, November/ December 1997.

of politicians of all feathers, many people become frustrated. They questioned the objectives of the caretaker government and many concluded that the government is to some extent already a failure. The ordinary citizen also ponders over the situation and tries and still trying to understand the underlying cause of the shift of the political situation in Bangladesh. He assessed that the expectation of the people was too high to the caretaker government after 1/11.

There is little to blame the common people. The expectation was actually created by the caretaker government itself and their sponsors by their projections of their objectives and their initial steps.

But the changed scenario actually exposes the inner weakness of the caretaker government. The caretaker government is virtually a group of heterogeneous people, who are not bounded by the common ideology and where the the attitudes and ideas develop differently and their approach to solve a problem also differ (compare Barrister Moinul & Hussain Zillur Rahman) in the same tenure of the government.

Some may cite the support of the military for the caretaker government. The Chief Adviser of the Caretaker Government of Bangladesh in his speech in UN in September 2007 cited Bangladesh is a country of civil-military cooperation in the governance which may be an example to be followed by the developing countries. But it is found the role of the military was more indirect, from distant and was not uniform in this fusion. People could feel the presence of the military but could not held them responsible for the failure of the government if any. The indirect relation of the military gives the government more acceptability but less strength and as the days are coming to the end for the caretaker government, the shadow of the military is more fading.

So, the caretaker government by its nature proves to be a weak government which is not empowered by the constitution to do any major changes other than holding a free and fair election.

5.04 Caretaker government and Reactions of the Public: Initial reactions of the public were welcoming. The arrest of corrupt prominent politicians led many to believe that a new political age was imminent. However, no new major parties came into the scene, and now the work of the anti-corruption unit is coming undone as many of the politicians are being released from prison.

This has also ended prospects for reform within the major parties since the old leaders have returned to their former positions, and positively gotten rid of reformers.

People who had opposed the government's prolonged stay have mostly been members of the two major parties. Members of the public in general understood the reasons and necessity for the government' actions.

The television media has reported events throughout the term in a mostly robotic manner.

There has been little questioning of the leaders who have been incriminated with an array of corruption charges, and who are now on the verge of returning to power. It should be noted that almost all of the nation's television channels are owned by members from one of the two major parties.

The Caretaker Government of Bangladesh is a government that takes the power after a ruling government finish its five years. Then the Neutral Caretaker Government rules the nations for 3 months to place a fair election for all the parties in Bangladesh. No other countries have adopted any such government in history. Only Bangladesh has it. Do not

think it's a good idea to have caretaker government in every country to have a fair election chances? A caretaker government rules temporarily. A caretaker government is often set up following a war until stable democratic rule can be resorted, or installed, in which case it is often referred to as a provisional government.

Caretaker Government of Bangladesh is a government that takes the power after a ruling government finish its five years. Then the Neutral Caretaker Government rules the nations for 3 months to place a fair election for all the parties in Bangladesh. No other countries have adopted any such government in history. Only Bangladesh it. Do not think it's a good idea to have a caretaker government rules temporarily. A caretaker government is often set up following a war until stable democratic rule can be restored, or installed, in which case it is often referred to as a provisional government.55 Caretaker governments may also be put in place when a government in a parliamentary system is defeated in a motion of no confidence or in the case when the house to which the government is responsible is dissolved, to rule the country for an interim period until an election is held and a new government is formed.

The type of caretaker government is adopted in Bangladesh where an advisory council led by the former chief judge rules the country for 3 months before an elected government takes over. In systems where coalition governments are frequent a caretaker government may be installed temporarily while negotiations to form a new coalition take place.

This usually occurs either immediately after an election in which there is no clear victory or if one coalition government collapses and a new one must be negotiated. The caretaker government started with an over - ambitious agenda and half the way it lost focus because it wanted to put its figure on everything. Such approach was neither double nor practicable.

The list of agenda was too extensive and therefore, could not be sustained. They did not sewer to priorities and limit their agenda to the transitional nature of its tenure.

From the very beginning an unnecessary fear was installed in the minds of poor people. For instance, ejection of hawkers from the pavements, demolition of slums in the cities without any provision for any alternative plans for the victims as well as knocking down of corner shops in towns and rural areas for breach of construction rules were perceived as an inducement of fear among the poor. It lead the self-employment people in the urban and rural areas to unemployment and misery. Much criticism was leveled against the government for these unwarranted actions by Human Rights activities.56 There is a view that the Truth Commission should have between set up at the early stage of its rule and the commission could not do its job at the fag end of the caretaker government.

There were allegation of high handedness and denied of due process to individuals, politicians and businessmen by some human rights organizations against the interim government. For example, arrest of academics and students following the August 2007 incidents in the Dhaka University, and harsh actions against some businessman that lead

55 56

The Dhaka Courier, 21 June 2009, p-21 The Daily Star (Dhaka), 24 February 2009, p-15

them to halt import for sometime were perceived as bad approaches to dealing with given situations making a decline in popularity of the caretaker government.

The interim government faced strong criticism for high prices of basic commodities and although some reasons for the increase were beyond it control, people perceived that the caretaker government had failed to meet their basic necessities. Poor people were victims of the price result and as a result the poverty level rose.

The Centre for policy Dialogue, a private think-talk, estimated that due to income erosion, an additional 8.5 percent people had fallen below the poverty line between January 2007 and March 2008, putting 25 lakh households below the poverty line. The CPD also observed that during the 15 months period of the caretaker government, the gross income of poor people decreased by36.7 percent, mainly due to price hike of food and inflationary pressure.

There was strong criticism against prolonging the emergency rule in the country. Human rights organzations accused the government of dunking some fundamental rights to its citizens for the period that was unnecessary. Only on 17 December 2008 it was lifted.

The bottom line is that the caretaker government is not an elected government and therefore, it had limitations to govern and after a certain period of time it loses its appeal and its utility erodes. People impatient with continuing political vacuum, eagerly looked forward to an elected government.

5.05 Observations and recommendations: In the light of the previous chapters it is obvious that free and fair election is unthinkable aspect in the context of Bangladesh without caretaker government system. But modifications and drastic change in the character of national mechanism is essential. And these all are ensured only when institutional democracy is confirmed.

It may be noted that within South Asia, only two countries, India and Sri Lanka, have succeeded in institutionalizing at least electoral democracy. Nepal, Pakistan and Bangladesh have swung between autocratic and democratic rule. The monarchy in Nepal and the military in Pakistan have repeatedly seized absolute power overthrowing elected governments. Since the return of electoral democracy in 1991, the military in Bangladesh has not demonstrated any interest to rule. Yet the continued politics of confrontation between the two major political parties that resulted in repeated street violence and strikes, finally led the military to intervene in politics. Since 11 January 2007, the military has emerged as the main political player though it has remained in the background behind the fa9ade of a civilian caretaker government. The failure of political leaders to settle their differences peacefully and remain within the bounds of democratic competition ultimately facilitated the reentry of the military in Bangladesh's politics.

The political leadership persistently violated democratic norms and practices, which weakened all major institutions in the country.

In the concluding chapter the process of Institutionalizing Democracy in Bangladesh will be discussed and at the same time recommendations for the future Caretaker government will be portrayed.

The non-party caretaker government led by Dr. Fakhruddin Ahmed took over on January, 12, 2007 and next January 2009 when Sheikh Hasina was sworn in as Prime Minister by the President.

In 1996 the unique mechanism of non-party caretaker government was introduced by amending the constitution. the genesis of the system was based on suspicion that ruling political governments would not be able to hold free and fair parliamentary election. The provisions of the amendments (Articles 58B, 58C, 58D and 58E) could have been drafted with more exactness and some of the imprecise provisions relating to system of the caretaker government have been often open to various interpretations and have come into conflict with other provisions of the constitution. 1 Article 58B provides that the duration of the interim government would continue till the "date on which a new Prime Minister enters upon" his/her office after the constitution of parliament. There is o timeframe built into Article 58B for the duration of the caretaker government. Thus the duration of the interim government has arguably been left openended while there is a provision that requires parliamentary election to be held within ninety days.

The tenure of four-party coalition government led by BNP expired on October 28, 2006 and a caretaker government led by President Dr. Iajuddin Ahmed was installed. The general election for the parliament was scheduled to be held on January 22, 2007. On 12 th January, the President appointed a new caretaker government headed y Dr. Fakhruddin Ahmed as the Chief Adviser. The media called the Fakhruddin caretker government and "army-backed government", probably because it have been speculated in the media that armed forces urged President Dr. Iajuddin Ahmed to resign from the post of Chief Adviser for the sake of national interest and appoint Dr. Fakhruddin Ahmed as the Chief Adviser under Article 58C of the constitution.

The Fakhruddin government continued almost two years in power and did not feel bound by Article 123(3) to hold the election in 90 days, due to vagueness of the provisions of the constitution. It was argued that in order to hold a fair, free and impartial election, they needed a fresh voter's list and certain amendments to the Representation of the People order 1972 that would guide the procedure of holding fair and credible parliamentary elections.

When the present caretaker government came to power on the backdrop of 1/11 everyone was delighted and all were relieved of the tension of conflicting election and its consequences. The new government declared its objectives of conducting a free, fair election acceptable to all and a society freedom corruption. 57 All were in peaceful mood. But the mood changes when the government started to arrest the political leaders, brueaucrates and businessmen on the charge of the corruption. Initially BNP men were arrested in greater number, but later few AL leaders were arrested. And

1

The Daily Star (Dhaka) 20 February 2009

57

The Daily Star(Dhaka), 20 February 2009

afterwards in the middle of drama AL chief Hasina, then BNP chief Khaleda were arrested on charge of corruption.

Government declared crusade against the corruption. The political parties fall apart from the government, businessmen felt insecure and brueaucrates felt scare. The consecutives flood hit Bangladesh and submerged 1/3rd of the country in the middle of 2007. Government had to face lone battle against the flood without the participation from the political parties.

Then the incident of Dhaka University, Government had to impose the Curfew over the emergency rule to tackle the situation and to prevent spread to other parts of the country.

Then came the Sidr, the most devastating cyclone so far in the area which cost thousands of lives and make the economy of the area totally dead. Govt. had to make people survived by special food arrangement. The political parties only negligibly participated. And throughout the tenure, the government had to fight with the price hike of the essentials, the legacy of which is still continuing. Now, when the government started dialogue, the political parties are showing very warm response, especially the big parties are still reluctant to sit with the government until the two top leaders are not allowed to participate in the talk and in the election.

So far, no caretaker government had to face so many obstacles from the political parties not to say of the businessmen. Questions about the constitutional legality of the government also came up. Our constitution only permits a Caretaker government for three months. It would have to complete its task of arranging a free, fair election by this time. This government is staying over 1 year and will continue for 2 years, the length which is not liked many political parties.

This government also made some reforms in some constitutional bodies including PSC, EC, Judiciary etc. These constitutional reforms would need the approval by parliament. Would it have been safe for a caretaker government to be limited within three months because of its constitutional bar and political difficulties ?Would it have been wise for the present political government to be limited within 3 months and be aimed for a fair election only? Would it not wise for the CTG to make amendments in the laws and not go after the corrupts physically? Would it not be enough for Bangladesh to have a free and fair election? Didn't the government create a complexity of the situation by itself and create a burden which would be difficult for them to dispose off? The present caretaker government has taken upon itself a daunting task which proved to be difficult so far and will the government able to come out of the conglomerate safely and cleanly? A lot of question arises about the performance of caretaker government. It is true that if the objectives of the present caretaker government are fulfilled and the government becomes successful, it will be a historical achievement for Bangladesh and for its democracy. But before that is done, the ordinary citizen will remain skeptic.

The last caretaker government probably will continue to be one of the most talked about caretaker governments for some time to come. The caretaker government has had its fair share of successes, the two most significant being preparation of a flawless voters list and the holding of a free and fair national election. There have been numerous write-ups on the performance of caretaker government both positive and negative. This article will focus on some of the key strategic failures of the caretaker government. Intention is to share insights

into some of the major issues where the caretaker government had either poorly loosing its relevancy in strategy at all.

1. Things changed dramatically with the new caretaker government. The Fakhruddin Ahmed headed government is widely seen as a front for military of Bangladesh. At least, one thing is sure; it has strong backing of military.

This military backed CTG launched a crackdown on corrupt politicians. It arrested a number of senior politicians belonging to both political alliances.

This step of the caretaker government was not acceptable for every kind of people.

2. The general public of Bangladesh which has been suffering at the hands of corrupt political leaders has welcomed the actions CTG. But apprehensions have been expressed in the western media that this government is actually a front for Bangladesh military and might actually pave way for military take over in Bangladesh.

3. The military of Bangladesh has tried to dispel this fear. Army Chief Lt. General Moeen U Ahme on February 8 categorically said the military has no intention to capture power or run the government, but they are assisting the caretaker government to put the country back on the right track. He reportedly said, "The army has no intention to take over. We are not even running the government. But we like to see this government successful as we want to put the country on the right track through concerted efforts of all.

4. The decision of the Bangladesh caretaker government to allow the most notorious terror outfit of that country to register as a political party has brought out a very different dimension of its character. The Fakhruddin Ahmed led interim government has remained in power for nearly two years claiming to be working for political reforms. It also launched a crackdown against corruption. But its latest decision has nullified all that was done by it and in fact has raised questions about its motives behind such actions.

Even in the past, reports indicated that the caretaker government was soft on Islamist groups. Though, it executed six top leaders of the Jama'atul Mujahideen Bangladesh (JMB) and controlled extremist violence in the country, it did not take any serious action which could have weakened such elements. It was alleged that it hurriedly executed six JMB leaders because they wanted to reveal the names of patrons and financiers of the organization.

5. The caretaker government after taking over launched a crackdown against corruption. In this crackdown, the major action was taken against the two mainstream political parties - the BNP and Awami League, Jamaat-e-Islami, the leading Islamist party in Bangladesh was largely left untouched. Top leaders of BNP and Awami League were arrested first, whereas Matiur Rahman Nizami, the Jamaat Ameer was arrested only due to sustained media pressure. Nizami was also released quickly. The caretaker government was

completely unmasked when it allowed the most notorious Islamist terror group of Bangladesh to register as a political party.

6. It's a complete travesty of truth to say HUJI has not been involved in terror activities and there are no proofs against it. In fact, the decision of the caretaker government only confirms its soft approach towards the Islamist political parties. Is it that seems the caretaker government under the grab of political reform only wants to weaken the two mainstream political.

7. This government is blamed for unprecedented price-hike of rice and other essential items and economic slowdown. Ahmed took over power with huge popular support but steps down with declining popularity because of pricehike, unemployment and absence of development activities.

8. Most of the 122 ordinances made by the caretaker government were "not justifiable". The experts told the parliamentary special committee that most of the ordinances were in violation of the Constitution. Dr. Zahir said Article 83 of the Constitution states parliaments is the sole authority to impose taxes. "But the interim government imposed taxes for two years. 58 9. One of the key strategic areas where the caretaker government performed miserably was media and public Relations. Both the information Ministry and CA's office had no well defined plans to take people into confidence on the reassures they were undertaking. No mechanism was in place to pro-actively count some of the misperceptions and poor information that were going round. A rode show was organized which lacked professional acumen to make it appealing to the people. Achievements of caretaker government were not effectively communicated to the masses in a manner that was credible and would provoke interest.

CONCLUSION A country cannot be regarded as democratic if the government of that country is not elected by the people. However, a country is not democratic simple because the government was elected. Election is certainly a pre-condition for ensuring a democratic form of government but it is not the only condition. A country in which human right is routinely violated, where there is no freedom of expression or freedom to assemble and hold meeting and processions is not a democratic country. For example, given the daily deaths is '' cross-fire'' one may argue that the present government of Bangladesh has lost its democratic character. Apart from this death in the so-called cross-fire, the BNP-Jamat government does not permit the holding of public meetings, processions and rallies. Them an elected government may also become autocratic.

Though election is not the only pre-condition for democracy, it has to be accepted that it is undoubtedly the must important condition. The people can exercise their power only through free and fair election. Article 7(1) of our constitution says, '' All powers in the Republic belong to the people and their exercise on behalf of the people shall be affected 58

only under, and by the authority of, this Constitution.'' Article11 of the Constitution says.''

The republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall guaranteed and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.'' The Constitution reflects the ideals of Democracy came to us from the western societies. It is from the British that we got the idea of representative government. Today, people in Bangladesh know that free and their election is a sine qua non for ensuring a democratic form of government. This was evident during the movement against the military autocracies of the past.

The elections in 1954 and 1970 occupy a crucial place in our history. Actually both these elections assumed the character of referendum. While the 1954 election reflected the people's rejection of the Muslim League and its communal politics, the 1970 election was a vote of confidence on Sheikh Mujib and the Awami League. if fact, the demand for full independence was but a logical step from the 1970 elections. The struggle to restore democracy was resumed in 1975 after the assassination of the Father of the Nation Bangabandhu Sheikh Muib. The practice of rigging elections with the active support of the government started during the military regime of Gen. Zia. In fact the use of the administration to manipulate the elections and their results was an open secret during the martial law regimes of Gen.Ershad. The parliaments, elected through these rigged elections, were used to legitimize their usurpation of power. However, popular agitation for election under a caretaker government gathered momentum after the Magura by-election that was blatantly rigged by the ruling party. Finally, after the voter less one party election of February 1996 Begum Zia's government was forced to accept the proposal for a caretaker government and enact the necessary change in the Constitution. The concept of a caretaker government during the interim period, when the term of an elected government ends and election are held for installing a new government, is not new. Those who follow the Westminster style parliamentary systems are familiar with it. When a new general election is scheduled and date is fixed, the outgoing government remains in office but in effect it becomes a caretaker government. According to long established practice and tradition, the outgoing government is not expected to make any new law or take major policy decisions.

They are expected to simply carry on the day-to-day routine work of the government. Not only have the British, all the countries with parliamentary system followed this practice. I have seen this in Australia. I believe this practice is strictly followed in India. Bangladesh is unique in the sense that the outgoing elected government, under the law passed in 1996, actually steps down and an interim government is installed as a caretaker government. I believe nowhere in the world such a system exists.

Bangladesh practice of a caretaker government is the result of deep distrust of the outgoing elected government. With the fall of Ershad in 1990 and the installation of an elected government, it was expected that the practice of rigged election would come to an end. It was a matter of profound disappointment that the ruling party headed by Begum Khaleda Zia was unable to live up to the expectation of the nation. She was not willing to accept defeat. Instead, her government resorted to the same practice of rigging that was followed by the military rules. In ract, the Magura by-election in 1994 convinced the Opposition parties that they did not sand the ghost of a chance to win if the ruling party remained of

office, the one-party election held on 15 February 1996 further convinced the common people that unless the government resigns a free and fair election could not be held. Public agitation assumed a serious trun. Begum Khaleda Zia had to bow to public opinion and resign. However, before resigning she quickly enacted a law on caretaker government.

Though the law followed the basic formula advocated by the Awami Leagur, none of the Opposition parties was consulted on the actual text of the draft law. In order to stem the rising tide of public anger she hurriedly passed the law. We are still living with this law under which two elections have been held.

The flaws in the law were detected right from the beginning. It may be recalled that a crisis was brewing in early 1996 when president Abdur Rahman Biswas ordered tanks in the streets and sacked the chief of army staff Gen. Nasim. Though the chief advisor and his council enjoyed all the powers of the government, the president retained control over the armed forces. Thus the seed of conflict within the government was sown when the relevant law virtually split the powers of the government t. 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 experiment with this system in 1996 proved to be a success. Neither side complained of rigging. Admittedly trees were minor complaints but on the whole the elections were accepted as free and fair. Both the national and international observers expressed satisfaction about the arrangement. It should be pointed out that the primary responsibility for holding rigging-free elections rests with the Election Commission. However, the government has the power to influence the results if it so wishes. The Deputy Commissioners and their subordinates function directly under the government and they are the ones who make all the administrative arrangements. Since the DCs act as Returning Officer, the government can manipulate the results through the DCs who are under its direct control. The Upazila level officers also function as presiding officers and polling officers. Through them the government can rig the election. In 1996 the government was truly neutral and, as a result, the Election Commission was able to discharge its duties without direct or indirect interference.

The general election of October 1 in 2001 was different from the earlier one. There were widespread complaints of rigging and corruption. The problem started right from the moment when Justice Latifur Rahman took the oath of office as chief adviser. He violated the spirit of the underlying principle of the caretaker government. For example, he requested the president to pass ordinances that were not acceptable to the Opposition.

Article 58 D (1) of the Constitution clearly says that the caretaker government will perform only the routine duties of the government and that it will not take any policy decision.

However Justice Latifur Rahman and his colleagues changed the ground rules of the election system in Bangladesh. Such far-reaching changes in the law should have been done either by the elected Parliament or on the basis of a national consensus. On the question of changes in the electoral laws, the Election Commission also acted arbitrarily. In the absence of a national consensus, such hastily passed lawn compromised the fairness and neutrality of the electoral process. The Constitution does not give the caretaker government the right

to review and annul the orders and decisions of the outgoing government. After all, the outgoing government was an elected government the enjoyed the confidence of the nation.

The caretaker council of advisers had no legal or moral right to sit on judgment over an elected government. Their sole duly is to deal with routine work and oversee the elections.

Justice Latifur Rahman acted as if his was a successor government with the mandate to undo the actions and decisions of the outgoing elected government. The caretaker council of advisers suspended the implementation of many on-going projects. These presumptuous decisions caused delay and confusion in project implementation. In fact, Justice Latifur Rahman created an impression that the outgoing government was guilty of corruption and that it had taken many wrong decisions. This was certainly a violation of the basic principles of neutrality of the caretaker concept. Clearly it went against the letter and spirit of the provisions of the Constitution. The continuity of the government was disturbed.

Justice Latifur Rahman surrounded himself with offices whose anti-Awami Leage bias was well known. In league with members and advisers of the BNP, these offices sent instruction to the district officers on the so-called '' risky'' centers. All the centers that were known to be strongholds of the Awami League were identified and military officers were given lists of Awami League volunteer in these centers as threats to law and order. This was clearly done to prejudice the military officers on duty. The deployment of the army personnel was done as desired by Begum Zia. Justice Latifur Rahman was visibly eager to please Begum Zia. during the 1991 and 1996 general elections, the army personnel were required to patrol the main roads. They did not have the right or duty to enter polling booths. The idea was to use the army to maintain law and order in the area. They should remain with reach of the civil officers in charge of the polling centers. Should there be violence in any centre they would be requested to intervene. This arrangement was not acceptable to Begum Zia who demanded that the military should not only enter the election centers, they should also get police and magisterial powers, Justice Latifur Rahman immediately acceded to Begum Zia's request. Later it was seen that this regrettable decision was responsible for putting the army in the centre of a controversy. The first election under the caretaker law went smoothly largely due to the integrity, firmness of character and efficiency of the chief adviser. The major flaws in the law became clear during the term of the last advisory council headed by Justice Latifur Rahman.

The defects in the existing law or its negative sides are as under.

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 favorable to it. Since the chief adviser and the council chosen by can influence the elections by using the administration, the ruling party can start a calculated maneuver to ensure that the person known to be a member or sympathizer of the ruling party is appointed to this post. Exactly this has happened. The BNP-Jamaat jot has extended the age limit of the judges of the appellate division with a view to ensuring that Justice Hasan is appointed the chief adviser. Justice Hasan, it may be mentioned, was a leading member of the BNP. In fact he was the secretary of the international committee of the BNP. Obviously he con not be considered neutral. Thus by clever manipulation the BNP-Jamaat government has arranged that a person of their choice would head the next caretaker government. This is a major fault that must be rectified to prevent such manipulation. The chief adviser has to enjoy the confidence of both the

treasury bench and the principal opposition party in the Parliament. It is going to be a difficult process but not beyond human ingenuity to devise such a system. For example, if justice Hasan declines to accept the post, the president will have the option to invite the next person listed in the Constitution. In the interest of national unity and compromise, will Justice Hasan do ? If he is a patriotic person, he will surely consider the option. Instead of limiting the selection only to the most recently retired chief justice, the field may be broadened to include all the retired chief justices and judges of the appellate division. One person may be chosen out of this pool who would be acceptable to both the ruling party and the principal opposition party in the Parliament. A procedure may be devised to break a deadlock.

Secondly, the present law leaves the selection of the advisers entirely to the chief adviser.

The principle of neutrality should be 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.

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 clearly state the point. Quite clearly, the advisers must not expect to be appointed to nay high office in the next five years during the term of the Parliament.

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 advisory council of Justice Latiful Rahman had the electoral laws revised without due consultation. 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.

The Election Commission must have full control over its budget and staff resources. We have seen how the present government has used its control of the budget and the secretariat of the Election Commission to control its activities. Budgetary independence is an indispensable condition for its freedom of action. As regards staff, once the services of an official are 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.

When politicians mooted the concept of caretaker government, they perhaps had thought that it was needed only to thwart the 'vote dacoity and media coup' by the Ershad's dictorial regime. So, the key opposition alliances shook hands and evolved the procedure of how Ershad should hand over power to a non-partisan and acceptable person who would head the caretaker government to hold a free, fair and credible general election.

Back in 1990, the political leadership perhaps did not contemplate that then Chief Justice Shahbuddin Ahmed would not be the first and last Head of a non-party caretaker government. After the general election under the first caretaker government in 1991, parliament had unanimously adopted the 11 th and 12th amendments to the Constitution.

The 11th amendment allowed Justice Shahbuddin Ahmed to return to the bench as Chief Justice after performing the state functions as acting President of Bangladesh and Head of the caretaker government. Under the12th amendment, the country switched over to parliamentary form of government from the presidential system.

Had the leadership of Awami League and BNP contemplated that the caretaker government would be required in future too, the provision could be incorporated in the Constitution as a permanent feature by the 13th amendment or by a new amendment. But on that auspicious occasion marked by the blowing of fresh wind of democracy and victorious mood of both Sheikh Hasina and Khaleda Zia and their exchanges of rare smiles over the fall of Ershad, the political leadership did not think of the necessity of caretaker government for future elections. The Awami League and the BNP leaderships were so confident that they are

enough to nurture democratic culture and ensure free and fair elections after the departure of Ershad. But that wistful thinking soon evaporated with the holding of by-elections in Mirpur and Magura under the BNP government marred by massive vote fraud. Opposition Awami League, Jatiya Party, Jamaat and left-leaning political groups, who dismantled Ershad for democracy through a united movement, launched another movement against Prim Minister Khaleda Zia for constitutional provision of non-party caretaker government for overseeing free and fair elections. They understood that fair election is not possible under a political party in power. And they had to force Khaleda to incorporate caretaker provision in the Constitution it in 1996 under an expensive bloodstained movement. So, the concept of non-party caretaker government is a sheer manifestation of 'no-confidence' in politicians by politicians themselves. Indeed, this is a slur on the politicians.

In a functional democracy, at the end of tenure, a party in power acts as an interim government at the time of election and only performs the routine work of the State. In those democracies Election Commissions are all powerful to ensure elections. In Bangladesh, a party in power always managed to get elected by abusing state machinery, money and muscle power. People's verdict was never honoured. Politicians' greed for power and making illegal fortunes overnight had frustrated the purpose of democratic institutions, including the election.

Question could be raised as to whether the caretaker government should remain as a permanent feature of the Bangladesh Constitution? How long will this system remain effective? Already political controversy has plagued the system. The political parties, who once evolved this unique system, have now cast doubt over it. Because, there are many weaknesses in the system, particularly, regarding the appointment of the Chief Advisor and the Advisors. Besides, there is some confusion over power and function of the President and the Chief Advisor.

As per provision of the caretaker government, the Chief Advisor should be appointed mainly from among the retired chief justices or the retired judges of the Appellate Division. The President can go for consultation with major political parties for appointment of a Chief Advisor if all avenues are exhausted in appointing him from the judiciary. So, whoever in power makes lot of calculations to find a suitable person to become the Chief Advisor with an expectation of getting favour durng the time of election. As a result, the highest judiciary is politicised so that the 'my man' could get the job of Chief Advisor being an immediate retired Chief Justice.

The 4-party alliance government has extended the retirement age of the Supreme Court judges from 65 to 67 clearing the say for Justice KM Hassan as Chief Advisor. This has been done in so crude way that the government's 'political design' behind the extension was exposed, triggering widespread criticism from the opposition. This government move cast doubt about the neutrality of the future caretaker government.

The opposition proposed a set of recommendations to reform the caretaker government, particularly the process of appointing the Chief Advisor and power and functions of the President and the Chief Advisor during the interim period.

To salvage the system of caretaker government from political controversy and make it an effective institution, the government and the opposition parties should reach a consensus on the subject before the next general election. Otherwise, the fate of the provision of nonparty caretaker government might hang in limbo.

Besides, under the existing rule, the government appoints the Chief Election Commissioner and other Commissioners. Though the Election Commission is supposed to be an independent institution, it is virtually dependent on the government for the budget and manpower. It has no independent secretariat. The Commission conducts elections by the government officials.

The opposition parties have already put forward suggestions in this regard. The government and the opposition should open discussions on how to make the Election Commission independent in conducting of the elections, if they are really sincere about free and impartial elections bereft of nay influence of black money, muscled power and administrative interference.

The Election Commission must be made independent in the true sense. The Chief Eletion Commissioner and other Commissioners must be no-partisan, acceptable and respectable persons with strong characters of honesty and integrity. They must be appointed through a transparent and credible process. The Commission must have an independent secretariat, separate budget and have the authority to recruit its own staff who will remain accountable to the Commission for their duties and responsibilities.

Besides, the judiciary must be separated from the executive so that the government does not have any role in appointing judges to the higher judiciary. This would stop the tendency of political parties, particularly those in power, to see it like-mined person from the judiciary as the Chief Advisor.

The Independent Anti-corruption Commission must function independently so that it can investigate any corruption charges against ministers, MPs, political leaders and civil and military bureaucrats without any influence from the executive.

The provision of caretaker government might not be required if corruption and abuse of powers by those in power could effectively be checked, corrupt politicians and bureaucrats are punished and accountability of the executive, legislative and the judiciary is ensured. As long as the political parties and politicians will feel that powers will bring them illegal fortunes, the caretaker or whatever system is in place, it will not work. Therefore, the fate of the system of non-parties caretaker government solely lies in the hands of political parties and political leadership. Indeed, the system of caretaker government stands at the crossroad shrouded with uncertainty.

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