caretaker government in bangladesh

Caretaker government in Bangladesh and different countries INTRODUCTION Bangladeshi Non-party caretaker government is the one of the more interesting constitutional innovations of recent times. Chapter IIA of Bangladeshi constitution covers this part.

Thirteen amendment bill to the constitution on March 26, 1996 incorporating the provisions of care-taker government. A caretaker government is one which normally takes care of the routing administrative work of the government for an interim period until the regular new government is formed. In Bangladesh, after end of the period of a regular government when the parliament dissolves, then a caretaker government forms as a transformation period government for organizing a general election which will be free and fair. The caretaker government is the non-party platform for the election. They don’t able to form any kind of policy and don’t able to give policy related decision. Free and fair election is their one and only ultimate goal of this government. The caretaker government will dissolve on the day, when new elected prime minister will take his or her office.

When parliament dissolve after the end of the term of a government, then the Caretaker government forms by headed with the chief advisor. This government is accountable to the president. There will be not more than ten other advisors in the government. The chief advisor and other advisors have to be appointed within fifteen days after the parliament dissolved. Up to before that appointment, the previous ruling government will continue country’s regular administrative job. President will appoint the chief advisor.

All the other advisors are appointed by the president on the advice of the chief advisor. They have to be qualified as a parliament member, not affiliated with any political party, give it written that they will not stand for the election, and not more than seventy two years of age.

The chief advisor will get the status of prime minister and other advisor will get the status of minister. They will not able to take any kind of policy related decision, just able to continue the routine tusk. They will give the government the full support about the peaceful and fair election and give power to elected government with in 90 days of taking power.

1.1

What Is Caretaker Government?

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 United States 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. Sometimes 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. Also, sometimes they do not wish to be seen as taking sides within a group of party factions or prejudicing 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.

A caretaker government rules temporarily the State. 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. In some countries (including Australia and New Zealand) the term is used to describe the government that operates in the interim period between the normal dissolution of parliament for the purpose of holding an election and the formation of a new government after the election results are known.

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 judge rules the country for three 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 collapses and a new one must be negotiated.

1.2

The Objectives of Caretaker Government

1.2.1 Not hold the office permanently: To fill seats in government temporarily without ambitions to continue to hold office on their own.

1.2.2 Interim period Government: These types of government are selected to hold the office for an interim period between two parliamentary elected governments.

1.2.3 Routine Work: A caretaker government is one which normally takes care of the routing administrative work of the government for an interim period until the regular new government is formed.

1.2.4 Organizing an election: The Non-party Caretaker Government are selected with the prime concern to organize a free and fair election.

1.3

Formation of Caretaker government When Arise?

According to the provisions of the 13th Amendment the question of formation of caretaker government will arise in the following two situations: 1.3.1

If Parliament was dissolved for any reason a caretaker government shall be appointed within 15 days after such dissolution.

1.3.2

If Parliament stands dissolved, a caretaker government shall be appointed within 15 days after such dissolution

1.4 Caretaker Government and Elected Government 1.4.1

A caretaker government rules temporarily the State. On the other hand elected government rules the state moreover permanent in nature.

1.4.2

A caretaker government holds the office for a very shorter period and elected government holds the office of the government for a longer period.

1.4.3

The caretaker government prime duty to organize a free and fair election. On the other hand an elected government after electing he has to perform all the necessary duties to the citizens of that country.

1.4.4

A caretaker government has no obligation to answer the any quarries at the time of holding of such office. On the other hand, an elected government should answer the all sort of quarries at the of holding his office

1.4.5

The non-party caretaker government is selected by the provisions of the Constitution and elected government is elected from the votes of the citizens who attain the age of the majority.

Historical Background of Caretaker Government The caretaker government of Bangladesh is a form of government system in which the country is ruled by a selected government for an interim period during transition from one government to another, after the completion tenure of the former. As the outgoing government hands over their power, the caretaker government comes into place.

The main objective of the caretaker government is to create an environment in which an election can be held in a free and fair manner without any political influence of the outgoing government. The head of the Caretaker government is called the Chief Adviser and is selected by the President, and the Chief Adviser selects the other advisers. The administration is generally distributed between the advisers. The Chief Adviser and the other advisers are committed for their activities to the President A caretaker government was first introduced in 1990 when three party alliances jointly made a demand for it. It was constitutionalized in 1996 by the Parliament dominated

by Bangladesh Nationalist Party. A Caretaker government is headed by a Chief Adviser who enjoys the same power as the regular prime minister of the country except defense matters.

The Advisors function as Ministers. Since 1996, the Caretaker government has held the elections of 1996, 2001 and 2008.

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

2.1

Caretaker government of 1990

Because of tremendous political pressure and protest of three different fronts in late 1990 dictator Ershad have to dissolve his government and handover the power to the care taker government. Then there was no option like caretaker government in the constitution on that time. So all parties decided, Ershad have to appoint a neutral and non-partisan person as Vice-President acceptable to the three alliances and other parties under article 51(A) clause 3, article 55(A) clause 1 and article 51 clause 3 of the constitution. After his resignation President Ershad has to hand over power to the Vice-President, who will become the head of the caretaker government as the acting President. The interim care-taker government shall hold a free and fair election for a sovereign parliament within three months’ time of its installation. According to that former chief justice Shahabuddin Ahmed appointed as vicepresident, and he become the acting president and chief advisor of caretaker government.

Seventeen advisors were appointed on that time. They arrange a free and fair election and BNP form the government by owning the election.

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 impact 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 General 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 neutral caretaker government. Opposition formula for the formation of neutral 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 neutral 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.

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 handing over state power to the nominee of the combined opposition Justice SHAHABUDDIN AHMED, the CHIEF JUSTICE of Bangladesh. Earlier, the then Vice President Moudud Ahmed resigned and Justice Shahabuddin Ahmed was installed as the Vice President. Then General Ershad stepped down from the presidency giving his charge to the Chief Justice emerging as the country's Acting President and head of the neutral caretaker government. Subsequently, 17 Advisers of the caretaker government were appointed.

It may be mentioned that the neutral 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 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 popularly elected Fifth Jatiya Sangsad.

2.2

Caretaker government, 1996

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. 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-ISLAMI 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 selecting a neutral person as the head of the caretaker government, and Jamaat-e-Islami demanded for forming an advisory council headed by a neutral 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.

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 constitutional amendment for caretaker government. Having failed to convince the mainstream opposition, the ruling BNP moved unilaterally to legalise the caretaker government after the Sixth Jatiya Sangsad was constituted on 19 March 1996. Thus on 21 March 1996 the Thirteenth Amendment bill was raised in the Sangsad, and on 26 March 1996 it was passed by 268-0 vote.

With the passage of Thirteenth Amendment, Articles 58(B) (C) (D) (E) were included in the CONSTITUTION which keep the following major provisions regarding caretaker government: (a) after the dissolution of the parliament there will be an 11-member non-party caretaker government headed by the Chief Adviser; (b) the caretaker government will be collectively responsible to the President; (c) the Chief Adviser will be appointed by the head of the state while other ten Advisers will be selected as per advice of the Chief Adviser; (d) the Chief Adviser will hold the status of PRIME MINISTER while an Adviser will enjoy the status of a minister; (e) the non-party caretaker government will discharge its functions as an interim government and will carry on routine jobs, except in the case of necessity it will not make any policy decisions; (f) the caretaker government will assist the Election Commission to hold general polls impartially, fairly and peacefully; (g) this caretaker government will be dissolved on the date a new Prime Minister assumes his office.

After formalising the measures for caretaker government and in the midst of massive opposition agitation, the controversial Sixth Jatiya Sangsad was dissolved on 30 March 1996.

Subsequently a caretaker government was formed under the Thirteenth Amendment and the former Chief Justice, Justice MUHAMMAD HABIBUR RAHMAN, took over the charge as the Chief Adviser. Four days later on 3 April 1996, ten distinguished personalities were sworn in as the Advisers of the caretaker government. The caretaker government successfully discharged its duty of holding the free and fair seventh constitutional parliamentary election

on 12 June 1996, and continued in office till 23 June 1996, when the newly elected Awami League led by SHEIKH HASINA formed the government.

Caretaker government of 1991 was mutual political solution for a critical political transformation. But the caretaker government of 1996 was an essentiality to go along with the constitution. Sixth national parliament was dissolved on 30 March, 1996. So a caretaker government forms under the thirteenth amendment headed by former justice Md. Habibur Rahman as the chief advisor on that day. For days later ten other advisors were appointed.

They arrange an election on 12 June which was won by Awami League and handover the power on 23 June.

2.3

Caretaker government of 2001

Following the provision for caretaker government through Thirteen Amendment of the Constitution the third caretaker government was formed on 15 July 2001 and the former Chief Justice, Justice Latifur Rahman, took over charge as the Chief Adviser. After two days, ten Advisers of the caretaker government were sworn in. The caretaker government discharged its prime duty of holding the eighth parliamentary election on 1 October 2001, and continued in office till 10 October 2001 when the new elected BNP government led by BEGUM KHALEDA ZIA assumed state power.

The neutral caretaker governments 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 Thirteenth Amendment of the Constitution in 1996, Bangladesh has founded a unique example in the existing parliamentary systems.

The third caretaker government was formed on the day, 15 July, 2001 according to the thirteenth amendment. The former Chief Justice Latifur Rahman was appointed as the Chief Adviser. After two days, ten other Advisers of the caretaker government were also appointed.

The caretaker government re-shuffled the total administration for neutral election. Arrange the eighth parliamentary election on 1 October 2001, and BNP own the election as four-party alliance with two third majority and formed government 10 October 2001.

2.4

Caretaker Government of 2006-08

The Bangladeshi general election, 2008 [national election of Bangladesh]] was held on 29 December 2008 under the Caretaker government formed with Dr. Fakhruddin Ahmed as the Chief Adviser on 13 January 2007.

This was the third Caretaker government formed after the tenure of the government of prime minister Khaleda Zia ended in October 2006. The Caretaker government of Dr. Fakhruddin Ahmed functioned without legislative authority as it continued to function after its scheduled tenure of 120 days ended on 12 May 2007. All decisions taken after this date must be ratified by the parliament for the sake of legitimacy.

A new caretaker government was by headed Fakhruddin Ahmed as the chief advisor.

Basically it was an army backed government. This government administrates the country almost for two years, takes so many reform programs, and started war against corruption. But this army backed caretaker government become very much questionable during their 2 nd year of running period because of their unethical attempt to form new political party by breaking the existing political parties and doing corrupting to prevent corruption. They arrange an

election on 29 December, 2008. Awami league won that election and formed government on 10 January, 2009 The Caretaker government of Dr. Fakhruddin Ahmed was a military controlled and has made extensive use of the military to stymie the chaos that preceded the 11th of January, 2007. From the very outset however, the government made it clear that they were there not only arrange a free and fair election, but also to make sure that all aspects that are connected to it are reviewed properly. This meant major reforms in the election system, but also making sure that corrupt candidates could not take part in the election.

The task was however an enormous one, since Bangladesh is regarded as one of the most corrupt nations in the world. Therefore, the government had exceeded its mandated term, which according to the constitution allows it to stay only for 90 days.

In defiance of the Constitutional provision the Caretaker government of Dr. Fakhruddin Ahmed postponed the national election 29 December 2008.

After the five years of term of BNP government, country was moving towards 9 th parliamentary election. But unbelievable amount of manipulation of the caretaker government, Election Commission, voter list, and the administration created a politically volatile situation in Bangladesh. Awami league and other opposition party didn’t want to see justice Hasan ac the chief of caretaker government, at that time bypassing the entire different alternatives president Iajuddin Ahmed declared him as the chief advisor of caretaker government. President was appointed by the BNP government and that’s why Awami League really can’t trust him. But they decided to participate on the 22 January election if the president fulfilled their demand. But he can’t able fulfill all the demand so that Awami league and their alliance decided to boycott the election. To resolve the conflictions Army take the initiative change the caretaker government and cancelled the election.

Caretaker Government in Different Countries 3.1

The Caretaker Government of 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 accordance with a series of well-defined conventions that are administered by the Department of the Prime Minister and Cabinet,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 a unique solution.

3.1.1

Caretaker Conventions

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 governments 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."

3.1.2 Caretaker government conduct The Caretaker provisions explicitly recognise 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 conventions broadly include the following: 3.1.2.1 Major policy decisions The Government will cease taking major policy decisions except on urgent matters and then only after formal consultation with the Opposition. The conventions 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.

3.1.2.2

Significant appointments

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

3.1.2.3

Major contracts or undertakings

The Government will 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 other 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.

3.1.2.4 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.

3.1.2.5 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.

3.1.3 Change of government When an opposition party or coalition wins enough seats at a general election to be able to command a majority in the House of Representatives, the incumbent Prime Minister formally advises the Governor-General that they should invite the Leader of the Opposition to form a government. The Governor-General then requests the incumbent Prime Minister and his or her Ministers to remain in government in caretaker capacity until a new government is sworn in. The Governor-General then contacts the Leader of the Opposition and invites them to form a government. The Leader of the Opposition accepts the invitation, and undertakes to inform the Governor-General when the new Ministry is in a position to be sworn in.This can be delayed by the counting of votes in closely contested seats, or by the processes by which ministers are chosen under the relevant party's rules. In the meantime, the caretaker government continues in office.

3.1.4. The 1901 caretaker government The first Australian federal government, headed by Prime Minister Edmund Barton, was sworn in on 1 January 1901, the day on which the Federation of Australia took effect, whereby the six colonies of New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania became States of the Commonwealth of Australia. The first election for the new Parliament of Australia was not held until 29 and 30 March 1901. In the meantime, Barton's government operated in a caretaker capacity but, due to need to quickly establish administrative processes and make important appointments, they were not as inhibited by the caretaker conventions as later governments were.

3.2

The Caretaker Government in Iraq

A U.N. envoy proposed Wednesday that the U.S.-appointed Governing Council cease to exist June 30 and said the United States should surrender sovereignty to a "caretaker" government of respected Iraqis. U.N. Undersecretary-General Lakhdar Brahimi said the new government should be led by a prime minister, a president and two vice presidents until elections are held in January. The formation of Caretaker Government in Iraq has no long history. This caretaker government system was first introduced after the United States aggression in Iraq.

When the Us government stop the aggressions by the pressure of UN and other national countries, than the US government finds the necessity to handover the Country to an Iraqi citizen than most of the persons in different troops they want to hold the office of the government. As a result there is formed a temporary government called Caretaker Government to take the responsibility for the conducting of new elections with the prime objective that to make the election free and fair.

The formation of a temporary government, a caretaker government that will take into their responsibility for the conducting of new elections.

A three-judge panel attached to Iraq's election commission ordered a manual recount of the vote in Baghdad at the request of Maliki's alliance, which had finished a close second to Allawi's Iraqiya slate. The recount, expected to begin next week, could very well open the door for further recounts around the country, and tarnish the credibility of the next

government, if Maliki's alliance overtakes Allawi's for the largest number of seats in the parliament.

The same judicial panel Monday banned an elected Iraqiya candidate from the parliament for his alleged ties to the late President Saddam Hussein's Baath Party. The court is soon expected to rule on nine other elected lawmakers accused of having been members of Hussein's party. The majority of them are in Allawi's Iraqiya coalition.

The demand by Iyad Allawi comes as candidates in his coalition have been barred from taking office. Some believe that his rival, Prime Minister Nouri Maliki, is trying to erode his slate's lead.

Former Iraqi Prime Minister Iyad Allawi demanded that an internationally backed caretaker government be formed and new national elections be held, if an Iraqi court continues to bar parliamentary candidates from his slate from taking office.

The comments by Allawi, whose slate won more parliament seats than any other political list in the March elections, underscored a deepening conviction within his coalition that Prime Minister Nouri Maliki's Shiite Muslim-dominated alliance is trying to erode his slate's lead by any means possible.

Analysts have raised fears that if the nation's minority Sunni Arab population, which largely backed Allawi, feels alienated, a new era of sectarian bloodshed could result.

The leader of the bloc that received the most votes in last month's elections called Wednesday for the creation of an internationally backed caretaker authority to prevent what he said were unlawful attempts by Iraq's government to overturn the results.

The move escalated a standoff between the Sunni-backed Iraqiya bloc, which won the most seats in the March 7 parliamentary elections, and an alliance led by Prime Minister Nouri al-Maliki, which came in a close second. Former Prime Minister Ayad Allawi, the leader of Iraq, also proposed extending the mandate of the outgoing parliament until a new one is in place, "for the purpose of monitoring the executive branch."

Adding to the political tension, Human Rights Watch released a report late Tuesday saying that members of a military unit under the command of Maliki, a Shiite, systemically tortured and sexually abused hundreds of Sunni Arab prisoners.

"The horror we found suggests torture was a norm in [al-Muthanna]," Joe Stork, the group's Middle East director, said in a statement, referring to a secret detention facility at a military airport in Baghdad. "The government needs to prosecute all of those responsible for this systemic brutality."

In recent days, U.S. officials have expressed concern about the post-election wrangling, which has prevented Iraq's electoral commission from certifying the results and has indefinitely delayed formation of a new government.

Standing in the way are a manual recount of votes cast in Baghdad and efforts by a commission run by Shiite politicians to disqualify winning candidates for alleged ties to

Saddam Hussein's outlawed Baath Party. At the same time, the U.S. military intends to withdraw about half of its forces by the end of August, leaving 50,000 troops.

Allawi said Wednesday that the Justice and Accountability Commission is carrying out "malicious disqualifications."

Sunnis, who won meager representation in the 2005 parliamentary elections, voted in droves this year, contributing to Iraqiya's narrow lead. Maliki's slate won two fewer seats but could conceivably come out on top. That would almost certainly spark widespread anger in Sunni communities, where many view Maliki as sectarian and increasingly authoritarian.

Maliki and other Shiite leaders have called the recent challenges to the election results lawful processes that must run their course. Allawi said Wednesday's statement would be Iraqiya's final appeal for fairness. He warned that the party would henceforth "revert to the Iraqi people to implement their will."

The Human Rights Watch report, which draws from interviews with 42 former prisoners at the al-Muthanna facility, has sparked anger in the northern province of Nineveh, one of the most volatile in Iraq.

Nineveh's governor, Atheel al-Nujaifi, said provincial officials met this week with hundreds of relatives of the inmates who spent time at al-Muthanna.

Maliki's government said it is investigating the abuse claims, but it has played down the allegations, saying they are politically motivated.

Allawi, a secular Shiite, urged the United Nations and other international organizations to back him in his demand for a caretaker government and a new vote, if matters continue on the current path.

"There are some attempts to confiscate the will of the Iraqi people, our constitution and the democratic right, and we cannot accept this," Allawi said.

Both the U.N. and the U.S. Embassy here had hailed the initial election results as credible and warned against a recount. They had also been critical of the process of banning candidates with Baathist ties from office. Despite their best efforts at mediation before the vote, the Iraqi government carried out an initial purge of more than 500 candidates from the ballot.

3.3

Caretaker Government in Sri Lanka

Transparency International Sri Lanka’s Election Monitoring arm, ‘The Programme for Protection of Public Resources (PPPR)’ has recommended that all future elections be held under a Caretaker Government. It has also stressed the need for an independent and effective Election Commission immediately.

PPPR has said that only the President and the Cabinet of Ministers should constitute the Caretaker Government without any non-cabinet or deputy ministers. During Presidential Elections, the incumbent President and the Cabinet of Ministers to be permitted to attend only to routine functions that have no bearing on the election. No public ceremonies of any

magnitude should take place incurring public expenditure, where the President or the Cabinet of Ministers or Members of Parliament or any candidate attends, the report has suggested.

Elaborating further, it has been recommended that the Commissioner of Elections may give appropriate directions to any of the members of the Caretaker Government in order to ensure a free and fair poll.

Referring to Provincial Council and local authorities’ elections, it has been suggested that members of the relevant bodies should cease to hold office, if they are to be candidates.

Highlighting grave abuse of public resources in the Presidential and Parliamentary Elections, the report has pointed out the cost that people are compelled to bear as a result of these abuses, and how such abuses compromise the integrity of the whole election. The need to appoint a Commission of Inquiry to inquire into the abuses of public resources during elections headed by a person with integrity and acceptable to the civil society has been pointed out. The PPPR has also recommended the appointment of independent Bribery, Police and Public Service Commissions.

PPPR recommends that the cost of abuse of public resources should be recovered from the errant candidates immediately. Independent review and reports by the Commissioner General of Inland Revenue, Customs Department, Financial Investigation Unit of the Central Bank and the Auditor General on the abuse of the state resources and expenditure of campaign funds should be made mandatory, it says.

A Systems Audit of the pre and post electoral counting and recording process to ensure integrity has also been emphasized.

Effective implementation of a Right to Information law to allow citizens’ access to government records, enact political party financing laws including provisions for declaration of such finances, periodical audits which should be submitted the Commissioner of Elections and an upper limit on the amount one can contribute, a clearer legal definition of political advertising, measures to prevent use of indirect representations during the campaign free period are among other recommendations.

Iceland's Left-wing caretaker government has won a resounding victory in a general election as voters punished the conservatives they blame for the country's economic meltdown last year.

The conservative Independence Party, in power for 18 years until it resigned in January amid massive protests over the financial crisis that brought Iceland to the brink of bankruptcy, posted its worst-ever election score.

"We lost this time but we will win again later," said Bjarni Benediktsson, the party leader, conceding defeat to the Social Democrats having picked up just 23.6 per cent of the vote.

The interim Prime Minister, Johanna Sigurdardottir, of the pro-European Union Social Democratic Party, will now have to try to reach an agreement with its eurosceptic coalition partner, the Left Green Movement, on seeking EU membership.

The Social Democrats won 30.3 percent of votes and the Left Greens took 21.7 per cent, providing an absolute majority of 52 per cent, a first for a Left-wing government in Iceland.

3.4

The Caretaker Government in United Kingdom

In the United Kingdom the term National Government is in an abstract sense used to refer to a coalition of some or all major political parties.

The all-party coalitions of Herbert Henry Asquith and David Lloyd George in the First World War and of Winston Churchill in the Second World War were sometimes referred to as National Governments at the time, but are now more commonly called Coalition Governments. Churchill's brief 1945 "Caretaker Government" also called itself a National Government and in terms of party composition was very similar to the 1931–1940 entity.

In May 1945, following the defeat of Germany the coalition government broke up and Churchill formed a new administration, including Conservatives, Liberal Nationals and various non-party individuals who had been previously appointed to Ministerial posts.

However, significantly, with the exception of the Earl of Rosebery there were no other Liberal Nationals in the Cabinet - excluding even the Lord Chancellor Lord Simon. This government nevertheless used the title National Government and could be seen as the heir to the 1930s governments, even though the personnel were very different. The government fought the 1945 general election as a National Government but lost.

Following the defeat, elements of the old National Government 'all party coalition' idea continued with Sir John Anderson (elected as a National M.P.) and Gwilym Lloyd-George - a former Liberal M.P. who now sat as an Independent Liberal - occupying important positions in Churchill's Shadow Cabinet team. In addition the Liberal Nationals (National Liberals from 1947-48 onwards) also kept a semi-separate existence and didn't finally disappear until 1968 - the last political legacy of what happened in crisis of August 1931.

Categories of Caretaker Government The concept of` `Caretaker Government` as it has been and being used in politics and constitutions of various countries, may be used in three senses: Presumed Caretaker Government; Caretaker Government in Special sense; and Caretaker Government in proper sense or Non-party Caretaker Government.

4.1

Presumed Caretaker Government

When parliament stands dissolved because its duration has expired or is dissolved because the government has been defeated in the floor and it has advised foe its dissolution or because of any other reason, the existing government continues in office till the new government is formed after election. This sitting government after dissolution of parliament and before its reconstitution transforms automatically into a caretaker government in the sense that this government thought a sitting one undertakes to take care of the affairs of the government for pre-election interim period during which it does not initiate any important policies or commitments of a broad and sweeping nature. Invariably, the Prime Minister in office at the time of the dissolution of the legislature or the termination of its constitutional life carries on the administration of the country as head of the caretaker government. This transformation is

recognized in all democratic countries. In Britain, Canada, and New Zealand it is a conventional practice and in countries with written Constitutions it is specifically mentioned that when parliament is dissolved the sitting government continues in office till its successors has entered upon office.

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

4.2

Caretaker Government in Special Sense

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

For example, in Britain in 1945 the cabinet formed by Churchill following the Second World War has been termed by Sir Ivor Jennings as caretaker government. As this government was formed particularly for conducting post-war election in Britain and this 16 member cabinet was participated by Conservative Party, National Liberation Party and also some non-party members. This government was different from a presumed caretaker government as I have mentioned above. Sir Ivor Jennings categorically says that it should be explained that it is not British practice to appoint a caretaker government of the duration of general election. It was done in 1945 because the wartime coalition had broken up. The electors had to decide whether they wanted a Conservative Government or a Labor Government, and meanwhile the King’s service had to be carried on. This was quite exceptional. The Government which advices the dissolution remains in office though out the election and continues to do so after the election, unless it is defeated.

Again, Article 48 (5) of the Pakistan Constitution specifically provides for caretaker government. It stipulates that – “Where the President dissolves the National Assembly, he shall, in his discretion (a) appoint a date not later than 90 days from the date of the dissolution, for holding of a general election to the Assembly; and (b) appoint a caretaker government.

But there is no provision for appointing a non-party caretaker government; neither is there any mandatory provision that the caretaker government will not take part in the election. As a result, the provision for caretaker government as provided in the Pakistan Constitution cannot be said to be a caretaker government in true sense of the term.

4.3

Caretaker Government in True Sense

In true sense the term caretaker government means an interim government which is a nonparty government and abstains itself from contesting the election and is appointed particularly

for conducting a free and fair election. For example, the provision for caretaker government as provided by the 13th amendment of the Constitution of Bangladesh ensures a caretaker government in true sense, for none of the government has the right to contest general election. Caretaker government of Pakistan of 1993 and of 1997 was caretaker government in proper sense. The interim government to conduct election in South Africa in 1994 was also a caretaker government in true sense. The interim government of Justice Sahabuddin Ahmed which was formed after the fall of military dictator Ershad regime in 1990 in Bangladesh was not, from constitutional point of view, any caretaker government there was no provision for caretaker government as such in the Constitution of Bangladesh. Under the provisions of the constitution Justice Sahabuddin Ahmed was appointed as the Vice-President and when Ershad resigned Sahabuddin Ahmed acted as the Acting President and until he comes out of his office he acted as the Acting President. But if we examine his government from factual, political and philosophical point view, we find that his government was essentially though not constitutionally a caretaker government in true sense. Because all of his government was non-political persons and none of them took part in the election.

The aforesaid 3 types of caretaker governments may again be classified into two categories. One is so called or party-caretaker government and another one is non-party caretaker government. In Bangladesh the Non-party Caretaker Government are prevailing.

Five different Caretaker Governments in Bangladesh 5.1 Caretaker Government of 1991 Because of tremendous political pressure and protest of three different fronts in late 1990 dictator Ershad have to dissolve his government and handover the power to the care taker government. Then there was no option like caretaker government in the constitution on that time. So all parties decided, Ershad have to appoint a neutral and non-partisan person as Vice-President acceptable to the three alliances and other parties under article 51(A) clause 3, article 55(A) clause 1 and article 51 clause 3 of the constitution. After his resignation President Ershad has to hand over power to the Vice-President, who will become the head of the caretaker government as the acting President. The interim care-taker government shall hold a free and fair election for a sovereign parliament within three months’ time of its installation. According to that former chief justice Shahabuddin Ahmed appointed as vicepresident, and he become the acting president and chief advisor of caretaker government.

Seventeen advisors were appointed on that time. They arrange a free and fair election and BNP form the government by owning the election.

5.2 Caretaker Government of 1996 Caretaker government of 1991 was mutual political solution for a critical political transformation. But the caretaker government of 1996 was an essentiality to go along with the constitution. Sixth national parliament was dissolved on 30 March, 1996. So a caretaker government forms under the thirteenth amendment headed by former justice Md. Habibur Rahman as the chief advisor on that day. For days later ten other advisors were appointed.

They arrange an election on 12 June which was won by Awami League and handover the power on 23 June.

5.3

Caretaker government of 2001

The third caretaker government was formed on the day, 15 July, 2001 according to the thirteenth amendment. The former Chief Justice Latifur Rahman was appointed as the Chief Adviser. After two days, ten other Advisers of the caretaker government were also appointed.

The caretaker government re-shuffled the total administration for neutral election. Arrange the eighth parliamentary election on 1 October 2001, and BNP own the election as four-party alliance with two third majority and formed government 10 October 2001.

5.4

Caretaker Government of 2006

After the five years of term of BNP government, country was moving towards 9 th parliamentary election. But unbelievable amount of manipulation of the caretaker government, Election Commission, voter list, and the administration created a politically volatile situation in Bangladesh. Awami league and other opposition party didn’t want to see justice Hasan ac the chief of caretaker government, at that time bypassing the entire different alternatives president Iajuddin Ahmed declared him as the chief advisor of caretaker government. President was appointed by the BNP government and that’s why Awami League really can’t trust him. But they decided to participate on the 22 January election if the president fulfilled their demand. But he can’t able fulfill all the demand so that Awami league and their alliance decided to boycott the election. To resolve the conflictions Army take the initiative change the caretaker government and cancelled the election.

5.5

Caretaker Government of 2007

A new caretaker government was by headed Fakhruddin Ahmed as the chief advisor.

Basically it was an army backed government. This government administrates the country almost for two years, takes so many reform programs, and started war against corruption. But this army backed caretaker government become very much questionable during their 2 nd year of running period because of their unethical attempt to form new political party by breaking the existing political parties and doing corrupting to prevent corruption. They arrange an election on 29 December, 2008. Awami league won that election and formed government on 10 January, 2009.

The Bangladeshi general election, 2008|national election of Bangladesh]] was held on 29 December 2008 under the Caretaker government formed with Dr. Fakhruddin Ahmed as the Chief Adviser on 13 January 2007.

This was the third Caretaker government formed after the tenure of the government of prime minister Khaleda Zia ended in October 2006. The Caretaker government of Dr. Fakhruddin Ahmed functioned without legislative authority as it continued to function after its scheduled tenure of 120 days ended on 12 May 2007. All decisions taken after this date must be ratified by the parliament for the sake of legitimacy.

The Caretaker government of Dr. Fakhruddin Ahmed was a military controlled and has made extensive use of the military to stymie the chaos that preceded the 11th of January, 2007. From the very outset however, the government made it clear that they were there not only arrange a free and fair election, but also to make sure that all aspects that are connected to it are reviewed properly. This meant major reforms in the election system, but also making sure that corrupt candidates could not take part in the election.

The task was however an enormous one, since Bangladesh is regarded as one of the most corrupt nations in the world. Therefore, the government had exceeded its mandated term, which according to the constitution allows it to stay only for 90 days.

In defiance of the Constitutional provision the Caretaker government of Dr. Fakhruddin Ahmed postponed the national election 29 December 2008.

List of Chief Advisers of Bangladesh

01

Name

Entered office

Habibur Rahman

31 March 23 June 1996 17 October 1935 Non-party 1996

Gopalganj

10 October 1 March 1936 2001

Non-party

Jhenaidah

11 January 1 February 1931 2007

Non-party

Munshiganj

Non-party

Munshiganj

02 Latifur Rahman 15 July 2001

03 Iajuddin Ahmed

05

Fakhruddin Ahmed

29 October 2006

Left office

Date of Birth and Political Death party

12 January 6 January 1 May 1940 2007 2009

Birth Place

Composition and Function The Chief Adviser of the Caretaker Government of the People's Republic of Bangladesh takes over as the Head of Government for 90 days during transition between one elected government to another. The Caretaker Government that is mandated only to hold the Parliamentary Elections in Bangladesh. The Chief Advisor heads an Advisory Committee comprising ten Advisors. With powers roughly equivalent to those of the Prime Minister of elected governments, his executive power is constrained with certain constitutional limitations. He, as well as the other advisors, are selected so as to be acceptable to all major political parties.

Present Chief Justice of Bangladesh Mr. Justice A B M Khairul Haque has the highest possibility to become the next Chief Adviser during the general election to be held in March 2014.

6.1

Composition of the Non-Party Care-taker Government

6.1.1 Non-Party Care-Taker Government shall consist of the Chief Adviser at its head and ten or less other Advisors, all of whom shall be appointed by the President.

6.1.2 The Chief Adviser and other Advisers 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 Jatiyo Sangshad (Parliament) was dissolved or stood dissolved shall continue to hold office as such.

6..1.3 The President shall appoint as Chief Adviser the person who among the retired Chief Justice 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 Justice of Bangladesh retired next before the last retired Chief Justice.

6.1.4 If no retired Chief Justice is available or willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article: Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.

6.1.5 If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.

6.1.6 Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.

6.1.7

The President shall appoint Advisers from among the persons who are

6.1.7.1 qualified for election as members of parliament; 6.1.7.2 not members of any political party or of any organisation associated with or affiliated to any political party; 6.1.7.3 not, and have agreed in writing not to be, candidates for the ensuing election of

members of parliament; 6.1.7.4 not over seventy-two years of age.

6.1.8

The Advisers shall be appointed by the President on the advice of the Chief Adviser.

6.1.9 The Chief Adviser or an Adviser may resign his office by writing under his hand addressed to the President.

6.1.10 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.

6.1.11 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.

6.1.12 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 6.2

Functions of the Non-Party Care-taker Government

6.2.1 The non-party caretaker government shall discharge its functions as an interim 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 itself not make any policy decisions.

6.2.2 The non-party Caretaker Government shall give Election commission all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially.

Qualifications According to Article 58C the caretaker government shall consist of not more than 11 members of whom one shall be a Chief Advisers and other 10 shall be Advisers.

7.1

Qualification of the Advisers

Under Articles 58C (7) the President shall appoint Advisers from among the persons who are — 7.1.1

Qualified for election as Member of Parliament;

7.1.2 Not members of any political party or any organization associated with or affiliated to any political party.

7.1.3 Not, and have agreed in writing not to be, candidates for ensuring election of members of parliament.

7.1.4

Not over seventy-two years of age.

7.2

Who can be appointed as the chief Adviser?

Following persons having qualification of an adviser may be appointed as Chief Adviser by the President: 7.2.1

The person who among the retired Chief Justice of Bangladesh retired last.

7.2.2 If such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justice of Bangladesh retired next before the last retired Chief Justice.

7.2.3 If no retired Chief Justice is available or willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired judges of the Appellate Division retired last.

7.2.4 If such retired Judge is not available or is not willing to hold the office of Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired judge.

7.2.5 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.

7.2.6 If none of the above-mentioned persons can be found to be appointed as the Chief Adviser, the President shall assume the function of the Chief Adviser.

7.3

Status of the members of the Caretaker Government

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 the entitled to the remuneration and privileges of a Minister.

Caretaker Government and the 13th Amendment 8.1

Background of the 13th Amendment

On the way to restoration of liberal democracy from the bondage of military autocracy the history 5th Parliamentary Election was a milestone which was held under the Acting President Justice Sahabuddin Ahmed in 1991. An unprecedented degree of enthusiasm was shown by all quarters. The election was nationally and internationally recognized as free and fair.

Winning majority seats n parliament the BNP formed government. But from the beginning of the BNP government the opposition parties in the parliament began to create pressure on the government so that it includes provision for caretaker government in the Constitution. In 1993 first Jamat-i-Islam and the AL and JP submitted their respective Bills concerning caretaker government. Every Bill contained the same object- “to make general election free and fair and to make the whole process of election free from the government influence provision for caretaker government should be introduced in the Constitution. But this demand of the opposition parties was treated by the government as unconstitutional and illegal. The Magura by-election was the turning point of the movement of the government. It was this Magura by-election in which the government party BNP took resort to an unprecedented malpractice and rigging. This election manipulation of BNP government, as reported by most important dailies, defeated even the Ershad’s election manipulation in 1988 and it has earned a title of Election Magura in the election politics of Bangladesh. Before this Magura incident all the opposition parties made walkout from parliament in protest of a statement made by Information Minister Nazmul Huda concerning Heborn Killing issue of Israel. And they made commitment that they would not return to parliament if the Information Minister did not expunge his statement. To this boycotting of parliament Magura Election malpractices provided an extra strength and now the opposition parties got their direct way of demanding that they would not go back to parliament till a caretaker government Bill was introduced in the House. The government did not pay a heed to this demand. On 28th December, 19994 about 147 MPs resigned in protest. When the Government proceeded to hold by election in 142 vacant seats the political impasse took more outrageous condition leading to continuous country-wide strike. On 24th November, 1995 the government dissolved the 5th parliament and the 6th Parliamentary Election was scheduled on 15 th February, 1996. But since the government did not pay any heed to the demand of caretaker government by the opposition, all the opposition parties boycotted election. The ruling party BNP produced to contest the election with sudden hand-picked parties as the military director Ershad did. The announcement of the result of the election added fuel to the fire-like opposition movement.

All the opposition parties launched their country-wide non-cooperation movement and demanded the fall of the government as well as the dissolution of 6th parliament. The whole politico-economic condition of the country was leading to a complete civil war. Lastly finding no other way out BNP government introduced the Caretaker Government Bill (the 13th Amendment of the Constitution) on 21 st March at the first session of the 6 th parliament.

The Bill was passed on 26th March. Than the 6th parliament after 7 days of its life was dissolved on 30th March and Justice Habibur Rahman was appointed as the Chief Adviser of the Caretaker Government as envisaged in the 13th Amendment of the Constitution.

8.2 The 13th Amendment of the Constitution This Amendment was passed with 268-0 votes on 26 th March, 1996 and it became law on 28 th March,. The Amendment added a new Chapter in part 4 of the Constitution with 5 new Articles (58A, 58B, 58C, 58D and 58E). It also amendment Articles 61, 99, 123, 147, 153 and the Third Schedule of the Constitution.

8.3 Demerits of the 13th Amendment Firstly, though the Chief Adviser of the caretaker government has been given the status of the Prime Minister, from legal point of view, he has been made subservient to the President and he has not been given the full power as a Prime Minister in ordinary situation can exercise.

According to Article 58E the President is not bound to act in accordance with the advice of the Chief Adviser. Again, Article 58B (2) stipulates that the non-party caretaker government shall be collectively responsible to the President. Thus the President retains the power to cancel any decision of the caretaker government and even the caretaker government itself.

Since the chief Adviser along with all advisers of the caretaker government is non-political and non-partisan person and since he will exercise his powers only for three months to conduct a general election, no power expectation will work within him, he should have been, for the sake of independent exercise of his function, given the same constitutional power as the Prime Minister does have.

Secondly, while the caretaker government is in the power the unfettered power over the defense has been vested upon the President. During ordinary situations though the supreme command of the defense is vested in the President, he exercises his function only in accordance with the advice of the Prime Minister. But the 13 th Amendment is silent about this matter. Thus the most powerful way to act in an arbitrary manner is retained with the President.

Thirdly, this interim caretaker government will be in power for 3 months only; they will not have any policy formulating functions and they will be in power without any prior experience of governing the country. So it is likely that this government may create any obstacle in the smooth functioning and developments of policies initiated by the previous government.

This is, of course, the strongest argument against the concept of separate caretaker government. It is also true that very few instances can be found where after every 5 years or after every dissolution of parliament a separate politically inexpert governments sits in power for conducting a general election. But the fact of the Bangladesh politics as far as it concerns its election politics is that a free and fair election has been a far cry in the history of Bangladesh since its independence and the interim government of the Justice Sahabuddin Ahmed after the fall of the Ershad regime has made historic success in holding a free and fair election and this success had turned the concept of caretaker government into a political reality which has, through the 13th Amendment, been a constitutional reality.

But analyzing the Amendment from true viewpoint of constitutionalism we would say that 13 Amendment is against the principle of institutionalization of democracy. Because as a result of this Amendment a wrong conception will always work in the minds of the people and young learners that the government in power cannot be above the corruption and manipulation of election process ; secondly, the Election Commission as a Constitutional institution of democracy for controlling, conducting and superintending the whole election process is inherently weak and cannot be made in a position to be institutionalized; thirdly, the whole governing process particularly the bureaucracy will get a swing on a regular interval which may hamper the smooth functioning of the administration. For Institutionalization of democracy not a separate interim caretaker government but an independent Election Commission is essential. th

8.4

Evaluation of the 13th Amendment

In the constitutional development of Bangladesh the 13 th amendment of the Constitution may be said to be a positive step for some reasons.

Firstly, the fundamental basis of formation of government in democracy is election. If this election is not free and fair, the formation of government cannot be said to fulfill the norms of democracy; and in this case the most celebrated maxim of democracy “all power belongs of the people� becomes a mere farce. More the election process will be free and fair, more the people will see their voting right, in other words, right to elect representatives meaningful.

The most important positive merit of the 13th Amendment is that it has paved the way for making general election free and fair, particularly free from government influence.

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

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

Caretaker Government and Election Commission 9.1

Why Caretaker Government at Where There is Election Commission

The Election Commission which is the fourth organ of the state as envisaged in the Constitution is a constitutionally independent body to through an independent Election Commission is recognized in many democratic countries. As to the independence of the Election Commission the following provisions have been provided for in the Constitution: 9.1.1 The Election Commissioner shall be independent in the exercise of its functions and subject only to this Constitution and any other law.

9.1.2 An Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court.

9.1.3 The President shall, when so requested by the Election Commission, make available to it such staff as may be necessary for the discharge of its functions.

9.1.4 The superintendence, direction and control of the preparation of the electoral rolls for elections to the office of President and to parliament and the conduct of such elections shall vest in the Election Commission.

9.1.5 It shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions.

Thus the Constitutional Independence of the Election Commission has been ensured but the problem lies with the statutory independence; various laws, which regulate the Election Commission and electoral process, are vitiating this constitutional independence.

Firstly, according to the Rules of Business the Election Commission Secretariat is attached to the Prime Minister’s Secretariat. As a result, the Chief Election Commission cannot exercise his effective control over the Secretariat of the Election Commission.

Secondly, it is a conventional and somewhere constitutional rule that members of the Election Commission are appointed in consultation with the Chief Election Commissioner.

But that condition of appointment has neither been inserted in the Constitution nor does it exist in convention in Bangladesh politics.

Thirdly, though the security of tenure of the Commissioners of the Commission is as like as that of the judges of the Supreme Court and although Article 119 of the Constitution has invested the Election Commission all control and superintendence over election process, the Commission has little statutory independence to control election process independently and effectively. As expressed by an ex-Chief Election Commissioner the scheme under the Representation of the People Order, 1972 is that the Election Commission shall simply arrange the election; and the real control will remain at the hand of the Returning Officers.

Under Section 39 of the Representation of the People Order, 1972 the principal function of pronouncing election results of the parliamentary election is done by the Returning Officer who are the Deputy Commissioners of different districts. These Returning Officers are easily dictated by the government and if he declares a candidate who has not secured the highest votes elected, the Election Commission has no independent and absolute power to punishment.

Fourthly, in every district there is an Election Officer known as District election Officer (DEO) who is under the direct control of the Election Commission. But by law this DEO has been made subordinate to executive officers. Most of the logistics required to be used in the polls – general elections or elections of the local bodies—are controlled by the Deputy Commissioners (DC). Besides, the DCs enjoy the power of magistracy which is every important for conducting polls. On the other hand, the status of the District Election Officer is lower than that of Thana Nirbahi Officer (TNO) and the former controls no logistics in the district.

Fifthly, to get redress of violation of election laws and irregularities there is a provision for Election Tribunal as envisaged in the Representation of the People Order, 1972.

In this tribunal a candidate through an election petition can call an election in question. But the procrastination of the proceedings of the tribunal vitiates all its pious purposes. Inmost cases petitions are not decided till the parliament is dissolved or ends its term thus frustrating all the rights of the petitioner. In this connection it is important to mention that till 24 th November, 1995, 194 election petitions were filed out of which only 26 petitions were decided and that too very lately. The following table will make the position clear: Parliament First March, 3 1973 to August 15, 1975 Second February18, 1979 to March 24, 1982 Third May 7, 1986 to December 6, 1987 Fourth March 3, 1988 to December 6, 1990 Fifth

No. of Election Petitions Petitions Decided 4

Nill

40

3

106

3

13

1

February 27, 1991 to November 24, 1995 Sixth 19 March, 1996 to 25 March, 1996 Seventh 14 July, 1996 to 13 July, 2001 Eighth 28 October, 2001 to continue

31 Unavailable

19 Unavailable

Unavailable

Unavailable

31

13

Sixthly, the workload of the Election Commission has been another threat to its discharging functions effectively. Though under the Constitution the primary function of the Election Commission is to control the Parliamentary elections and to arrange for electoral rolls and demarcation of constituencies etc. a gigantic burden of holding local bodies election has been put on the shoulder of the Election Commission. The Commission is engaged with abnormal load of 50 thousands effective officers of the local bodies. No election Commission in South Asian countries like India and Sri Lanka has been vested with this sort of burden for running local bodies elections.

These are the legal and institutional short comings which have made the whole institution of Election Commission weak in administering and controlling the electoral process. And these shortcomings have lastly paved the way for the caretaker government.

9.2

History of Past Elections

9.2.1 The goal of political development in Bangladesh has been pursued through successive national movements to secure free and fair elections. Historical memories of popular electoral success in 1954 and 1970 underline the conviction that such elections are keys to people’s empowerment. Such empowerment in turn is seen as a necessary precondition for achieving the political, economic and social change which people aspire for and which our Constitution promises.

9.2.2 Bangladesh has had eight parliamentary elections: 1973, 1979, 1986, 1988, 1991, 1996, 2001 and 2007.

9.2.3 Parliamentary elections in 1979, 1986 and 1988 were held under a presidential form of government. In each presidential election (1978, 1982 and 1986) the opposition had campaigned for restoration of a parliamentary form of government. The reason for this was the perception that the presidential form promoted concentration and centralization of executive power, reducing the legislature in effect to a rubber-stamp Parliament. It could hardly play any effective role to ensure accountability or to check abuses of power.

9.2.4 The reluctant participation by some parties and abstention by other s in the 1986 Parliamentary elections was the result of a deep suspicion that elections would not be free and fair given the incumbent president’s aim to have a compliant Parliament. These suspicions proved to be well-founded. The 1986 Parliamentary elections were characterized as “voter less elections”. The announcement of electoral results was described as a “media coup”. This led to a movement for restoration of democracy which set as its goal the establishment of a parliamentary democracy through a free and fair election. It urged that no election would be acceptable under the incumbent president and a free and fair parliamentary election had to be held under a “caretaker government”.

9.2.5 A Parliamentary election held under the President in 1988 was boycotted. A massive movement for restoration of democracy and for the resignation of the President led to his

resignation in December 1990 and to the formation of the first caretaker government headed by the sitting Chief Justice was established. This was truly a constitutional innovation. The parties which had led the movement for the resignation of the President had insisted that the transfer power to an interim “caretaker government” headed by an independent, non-partisan person, who enjoyed the confidence of all of the parties engaged in the movement. The “caretaker government” would then take steps to hold a parliamentary election.

9.2.6 The challenge of finding an individual who would be acceptable to all the prodemocracy parties was formidable. Agreement was ultimately reached on designating the sitting Chief Justice as the head of the caretaker government. This was to be effected by first securing the resignation of the Vice-President, inducting the Chief Justice as Vice-President and then securing the resignation of the incumbent President, whereupon the Chief Justice would take over as the Acting President.

9.2.7 The constitutional difficulty of a sitting Chief Justice taking over the office of the Chief Executive was dealt with by an agreement among all the parties that a constitutional amendment would be effected to ratify these transitional acts.

9.2.8 The Eleventh Amendment (1991) ratified the acts but did not incorporate the “caretaker government” into the Constitution as a permanent feature. A parliamentary election was held in 1991. All parties participated. The parliamentary election, however, held under the incumbent government in February 1996 was boycotted by the opposition, and subsequently became a subject matter of intense controversy as the electoral results were challenged, and a fresh election demanded. A constitutional crisis could only be averted by an agreement with the opposition parties to hold a fresh election, which would be conducted by a “caretaker government”. An amendment had to be made to the Constitution incorporating into the Constitution a “caretaker government” as a permanent interim mechanism.

9.3

Caretaker Government: Composition and Power

9.3.1 A constitutional amendment (the Thirteenth Amendment, 1996) was adopted providing for a non-party caretaker government (CG), headed by a former chief justice, to be designated Chief Adviser, and composed of not more than ten advisers, which would assume the responsibility for administering the country during the interim period between the dissolution of parliament and the date when a new Prime Minister would enter upon the office. Neither the Chief Adviser, nor any of his advisers, could be a member of any political party. Nor could they contest the elections. The CG would stand dissolved on the date on which the new Prime Minister (PM) entered office after the constitution of a new parliament.

The underlying rationale for CG was to ensure that the state machinery (the administration, police and the defense services) did not play a partisan role in the elections. The past experience of ruling parties and incumbent governments influencing the outcome of elections by misusing the state machinery (the administration, police and defence services) had prompted the demand for establishing a non-party “caretaker government”, which thus became a permanent feature of the Constitution.

9.3.2 The Constitution now empowers the President to appoint a ten-member CG, with a Chief Adviser as its head, within fifteen days of the dissolution of the Parliament. Unlike in normal circumstances when the President enjoys some discretion in the appointment of the Prime Minister, his choice in the selection of the Chief Adviser, who enjoys the status, privileges and remuneration of a Prime Minister, is strictly regulated by Article 58C which provides as follows:

9.3.3 The President shall appoint as Chief Adviser the person who, among the retired Chief Justices of Bangladesh, retired last and who is qualified to be appointed as an adviser: Provided that if such retired Chief Justice is not available or is not willing to hold the office of the Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chef Justices of Bangladesh retired next before the last retired Chief Justice.

9.3.4 If no retired Chief Justice is available or willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired judges of the Appellate Division retired last and who is qualified to be appointed as an adviser under this article: 9.3.5 Provided that if such a 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.

9.3.6 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 the citizens of Bangladesh who are qualified to be appointed as advisers under this article.

9.3.7 Notwithstanding anything contained in Chapter IV of the Constitution, 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 Caretaker Government in addition to his own functions under this Constitution.

9.3.7.1 The CG has authority over all ministries/departments of government except defense, which remains the responsibility of the President. The mandate of the CG is quite limited; it essentially acts as an interim administration. Article 58(D) of the Constitution provides that the CG shall carry on the routine functions of the government with the aid and assistance of persons in the services of the Republic. The Constitution also provides that except in the case of necessity for the discharge of routine functions, the CG shall not make any policy decision, the CG has been empowered to make policy decisions, if necessary, to undertake its routine functions. It is expressly provided that the CG shall give to the Election Commission all possible aid and assistance that may be required for holding the general elections of members of Parliament peacefully, fairly and impartially.

9.3.7.2 Reform proposals have been presented by the opposition in relation to the CG. An issue has arisen because of the particular provision in the Constitution relating to the appointment of the head of the caretaker government, which specifies that the immediate past Chief Justice would be the person first called upon by the President and if he is unable or unwilling then his predecessor, and so on. Any action by the incumbent government, which conveys the impression that it is seeking to ensure that a particular person is chosen by adopting such means as altering the retirement date of the existing Chief Justice, raises doubts about the impartiality of that person. The Fourteenth Amendment (2004) raised the retiring age of the Chief Justice. This had the effect of ensuring that the person who was then the immediate past Chief Justice would continue to be in that position when the time came for the formation of the caretaker government. The opposition is strongly objecting to his being designated as head of the CG on account of his past association with the ruling party. The other issue relating to CG is that the Thirteenth Amendment provides that during the period when there is a nonparty caretaker government, the law regulating the supreme command of the defense services (which vests in the President), shall be administered by the President.

The opposition urges that the defense services should be administered during the caretaker government period in exactly the same way as all other subjects, that is, on the advice of the Chief Advisor 9.4

Electoral Reforms: Some Concrete Proposal

Free and fair elections are currently at the top of the national agenda. It stems from a widely shared concern that without such reforms being effected, the forthcoming parliamentary election would not be free and fair and would be materially affected by 3 M’s – muscle, money and misuse of executive authority. Over the years the “cost” of elections has continued to mount – so that in major urban centres the costs are measured in “crores” when the legal limit of election expenses is five lakhs. This is the corrosive affect on elections of “back money”. The deployment of armed cadres, funded by such black money, has introduced another element which undermines free and fair elections through injection of political violence and intimidation. A truly impartial non-party caretaker government and a truly independent and effective Election Commission are seen to be imperative if the election process is to be protected from the destructive impact of the 3-Ms. 9.5

The Caretaker Government and the Independence of the Election Commission

The Caretaker Government as provided for by the 13th amendment has paved the way of making only general elections free and fair. But the question of ensuring free and fair atmosphere for other elections like parliamentary by-election, city corporation election, local bodies election etc are still unsettled.

Secondly, though provisions for caretaker government has been introduced with a view to ensuring free and fair general election, still there are some drawbacks which will hamper free and fair election. The unchecked power given to the returning Officer under the Representation of the People Order, 1972 will still be abused by them sometimes for their personal interest and sometimes for their allegiance to any political party. Question was raised even during the first caretaker government as to the impartiality of the Returning Officers. Returning Officers have been given wide and unchecked powers in selecting and accepting nomination papers, counting votes, controlling polling stations and announcing results and in case of irregularities or partialities by them the Election Commission has not been given any independent power to inflict immediate punishment or other appropriate measures against them. Till such will not be given to the Election Commission there will be no assurance of free and fair election.

Analysis from broader perspective will give the idea that there is no alternative of making the Election Commission fully independent; the flaws and defects of the election laws should be corrected and the Election Commission should be invested with full authority to announce and conduct the elections. The post of District Election Officers should immediately be upgraded so that they can gradually take the lead at the district level in conducting polls.

For an Election Commission to be independent, the following reforms have been proposed: 9.5.1 Appointment of Chief Election Commissioner and Election Commissioners should be made after consultation with the opposition parties and other sections of society which enjoy respect and confidence; 9.5.2 The Election Commission must have financial independence by providing it a direct budgetary grant so that the resources needed by it are granted without intervention of the Finance Ministry.

9.5.3 The EC must have powers to recruit and control its own secretariat and staff under the existing dispensation, the Secretariat of the EC is a division in the Prime Minister’s office – which ex facie negates its independence. This issue is awaiting adjudication in a pending writ petition.

9.5.4 The EC must have powers to appoint returning officers, presiding officers and polling officers, whose independence must be secured; and where staff is provided on deputation, such staff must be exclusively subject to the direction and control of the Election Commission, free from any interference from the executive.

9.5.5 The EC must determine the deployment of police and defence services personnel (with concurrence where necessary of the caretaker government).

9.5.6

Rule-making authority should be vested in the Election Commission.

9.6

Measures to Protect Elections from Black Money

The following measures are intended to protect the elections from the impact of “black money”: 9.6.1 Candidates must be required to file affidavits with their nomination papers disclosing their educational qualifications, their assets and liabilities and those of members of their immediate family; their annual income and sources of income and those of their immediate family; the amount of income tax they paid during the last 3 (three) years, their interests in business and their criminal records. This information should be made available to the public and should be widely disseminated. These returns should be scrutinized by competent experts engaged by the Election Commission.

9.6.2 The Election Commission should properly post such documents filed by candidates on its website.

9.6.3 Candidates who make incorrect or false declarations should incur punishment including disqualification.

9.6.4 The Election Commission should develop a database to store information provided by candidates.

9.6.5 The legal provision which disqualifies candidates who are listed as “loan defaulters” to banks should be strictly enforced.

9.6.6 There should be effective implementation of the requirement for submission of the detailed accounts of all election expenses, and the source from which those expenses are met, which should be subject to scrutiny by competent experts. Detailed reports of election expenses must be filed within a mandatory time limit, which should be strictly enforced. A stringent enforcement measure would be to make timely submission of the statement of election expenses a pre-condition for the publication of the election result in the official Gazette.

9.7

Measures to Prevent Impersonation and False Voting

The following measures are aimed to prevent impersonation and false voting: 9.7.1 Immediate dissemination of information that voters in each case should check the entries relating to themselves in the computerized electoral roll and move for corrections, if

needed. For this purpose, access to the updated electoral roll shall be afforded to voters as early as possible. There is currently a controversy regarding the mode of preparation of the voter’s lit. The questions awaiting adjudication in a pending appeal before the Supreme Court include the appropriateness of a new list, ignoring the existing list. Also, the impartiality of enumerators and registration officers appointed by the Election Commission, many of whom seem to be drawn from the ranks of the ruling party, is seriously questioned.

9.7.2 Issuance of photo identity cards, or preparation of a voter’s list with photographs (or bio metric information) being incorporated in the voter’s list.

9.7.3 Use of voting machines of the type that was reportedly used successfully in the recent Indian election and, if possible, to ensure that such machines are available in all voting centers.

9.8

Measures to Ensure Level Playing Field and to Reduce Election Expenses

The following reform proposals are intended to provide a level playing field among candidates: 9.8.1

Projection meetings should be organized by the Election Commission.

9.8.2 Party-sponsored political meetings should be regulated as to limit their number and the expenses permissible for a single meeting.

9.8.3 Limits should be placed on publicity and expenses for this purpose should be strictly enforced.

9.8.4 Radio and T.V. time shall be equitably allocated and strict limits shall be placed on expenses on radio and T.V. publicity, as w ell as advertisements. Compliance with the expenses and time limits should be monitored and strictly enforced.

9.8.5 The Election Commission should strictly enforce those regulations and recommendations so that any violations of limits are dealt with by prompt and effective action while the election process is underway. If violation is established the candidate, in case of a serious violation, should be liable to be disqualified.

9.9

Democratic Governance and Transparency within Political Parties

The following proposals relate to the need for a regulatory framework for political parties: 9.9.1 Political parties are the key players in the arena of elections. A regulatory framework relating to internal governance of political parties and disclosure requirements at present under the existing law is applicable only to parties which exercise the option to register with the Election Commission. This is strictly optional. The view is widely shared (though not by the larger parties) that effective regulation is necessary and, therefore, registration should be made mandatory.

9.9.2 By appropriate legislation, the provision for registration should be made mandatory for political parties to ensure democratic internal governance including periodic elections of office bearers.

9.9.3 Political parties should be required to submit audited financial statements to the Election Commission, which should also be posted on the Election Commission’s website.

9.9.4 Political parties should be required to provide for participation of voters in local constituencies in the nomination process. Granting of nominations on payment of large contributions and also nomination of people recently retired from Government service (to eliminate the practice of Government officials using their last years in public service to prepare the ground for their own election) should be prohibited.

Legality of Caretaker Government 10.1

Caretaker Government on the Offensive Manner

Bangladesh has been awaiting elections since the last government led by Khaleda Zia handed over charge to the caretaker government (CTG) on October 29, 2006. Though the CTG headed by President Iajuddin Ahmed tried to hold the elections after hurriedly declaring a schedule, the controversy surrounding the institution of CTG and the Election Commission headed by then Chief Election Commissioner M.A. Aziz prohibited them from doing so. The main opposition alliance led by the Awami League, instead of starting electioneering, intensified its agitation for political and electoral reforms. It accused the CTG, the EC and the administration of being biased towards the former government of Khaleda Zia. It refused to participate in the elections unless these anomalies were corrected and a level playing field was created. Awami League did not stop here, and also demanded that the corrupt ministers and officials of the former government should be punished, little realizing that it’s a prolonged process which might actually delay the election process for a very long time. The interregnum might also give an opportunity to forces which are not democratic.

The volatile political situation in Bangladesh forced Iajuddin Ahmed to step down and appoint Fakhruddin Ahmed in his place, at the head of a new CTG. This has helped to restore to a certain extent political stability in the country.

The new CTG has now managed to successfully reconstitute the Election Commission (EC). The deadlock was finally resolved on January 31, when all five Bangladesh Election Commissioners, including acting Chief Election Commissioner Justice Mahfuzur Rahman, resigned on the request of president. Following this the Law Advisor of Bangladesh Mainul Hosein revealed the intention of the caretaker government to form a three-member Election Commission as part of the reform package. Initially, former secretary ATM Shamsul Huda was appointed as chief election commissioner (CEC) whereas another former bureaucrat Mohammad Sohul Hossain was appointed as election commissioner. The process of reconstitution of the EC was completed with the appointment of its third member, Brigadier General (retd) M Sakhawat Hossain as an election commissioner. This is the first time an officer with military background has been appointed in the EC. The new EC members after taking over have expressed their desire to work honestly and sincerely. The Chief Election Commissioner (CEC) ATM Shamsul Huda said that his first task would be to devise an action plan for major electoral reforms in consultation with the political parties and other stakeholders. He however did not mention any time frame for the task ahead.

Awami League has cautiously welcomed the appointment of the Chief Election Commissioner (CEC) and other election commissioners. It has hoped that the new officials will play a neutral role in holding a free and fair election. It has also urged the caretaker government as well as the Election Commission to change all politically appointed EC officials from EC Secretariat to upazila level to make it a powerful, neutral and independent body.

In the meantime, the CTG has taken an unprecedented step. Bangladesh has been notorious for extreme corruption. For the last, several years it had the dubious distinction of being the most corrupt nation. Even this year it is at the third rank. Awami League, during its agitation had been demanding crackdown on corrupt politicians. At that time, probably it was merely a strategy to denounce the former BNP ministers, who were no doubt extremely corrupt during their tenure. Awami Legue, knew that it was virtually impossible for the CTG headed by Iajuddin Ahmed to crackdown on his corrupt party men. Here it should be remembered that Iajuddin Ahmed had become president with the support of BNP and earlier belonged to that party.

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. Eight of the detainees, including ex-minister Nazmul Huda and Salahuddin Quader Chowdhury, are close aides of former Prime Minister Khaleda Zia. The majority of arrested leaders were part of the four party alliance, that were in government. However, the Law Adviser Mainul Hosein told media that the caretaker government will take actions not only against the corrupt politicians of the immediate past government but also those of any other government. Most of these leaders have been detained under country's Special Powers Act (SPA). Under the SPA, anyone can be detained for a month while police frame possible charges against them.

This step of the government has been appreciated by the general public in Bangladesh. Awami Legue has also cautiously welcomed it. But it has not excited BNP whose leaders are now facing difficulties. They are apprehensive that other leaders of the party might also get trapped in the ongoing drive against corruption.

The BNP leadership has voiced its concern. On February 14, the party demanded immediate release of its leaders and workers, people's representatives at the field level as well as the general people arrested "without specific allegations". The party's highest policymaking body National Standing Committee in a press release also urged the government to announce a specific date for holding election without delay under the reconstituted Election Commission to handover power to an elected representative.

Awami League, which at one time demanded action against corrupt leaders now want the CTG to hold elections as soon as possible. Awami League President Sheikh Hasina has said that they want holding of the stalled parliamentary elections at the earliest possible time as the Election Commission (EC) has already been reconstituted. After meeting some members of the House of Lords in Dhaka on February 10 she reportedly said, "We demanded reconstitution of the Election Commission and since the commission has been reconstituted, we want election as soon as possible."

The caretaker government has managed to tighten noose around some of the ‘high profile’ people in Bangladesh politics. The army-led joint forces recovered a good amount of relief materials including quilts and pipes from the prime minister's relief fund from the residence of Tarique Rahman, eldest son of the immediate past Prime Minister Khaleda Zia. They have also seized government relief materials from a business establishment of former BNP lawmaker and businessman Mosaddak Ali Falu in Savar on February 10.

The arrest of corrupt political leaders has been generally appreciated. At the same time, it is feared that these arrests will be of no use, unless the charges against them are proved, and these leaders are penalized for their acts of corruption.

The caretaker government has barred corrupt people from participating in any parliamentary or local government election by amending the rules of Emergency Power Ordinance (EPO). Any person, convicted of corruption by a trial court, will be disqualified from contesting in any election until adjudication of his or her appeal against the verdict and no convicted person will ever be able to hold any job related to the government, according to the amendments to the rules.

Tough laws are being prepared to make registration of political parties with the Election Commission (EC) mandatory in a bid to ensure financial transparency and accountability of the major parties. Besides, the government will issue an ordinance to bar civil servants from participating in the parliamentary election within at least three to four years of their retirement. It is being felt that in the absence of such restriction, many bureaucrats develop a tendency to run the administration with a political end in view.

Several other changes have been done in administration and extensive reshuffle has taken place in police administration. Though this reshuffle is with the intention of neutralizing the administration it may not necessarily make it more efficient.

The CTG has also managed to reconstitute the Anti-corruption Commission (ACC).

It’s Chairman Justice Sultan Hossain Khan and Commissioner Prof Maniruzzaman Miah submitted their resignations to the president on February 7, while the other Commissioner Maniruddin Ahmed said that he would take some time to submit his own. Though processed through a selection committee, their appointments were believed to have been made on political considerations.

The caretaker government has also indicated that it is going to ratify the United Nations Convention against Corruption to bring the country's anti-corruption measures up to the international standard. The convention encourages its signatories to set up autonomous anti-corruption watchdogs, merit-based and impartial public service recruitment, public service codes of conduct, publication of government expenditure and to ensure transparency in election campaign funding, among others.

Concrete steps have been taken to separate the judiciary from the executive. The council of advisers at a meeting on February 7 approved the ordinance on amendments to the Criminal Procedure Code (Cr. PC), necessary for separation of the judiciary from the executive. This will be promulgated by the President in a couple of days. With this promulgation, the long-awaited separation of the judiciary will come into effect. After the separation is done, the magistrates, who are currently under the control of the executive, will then come under the authority of the higher court and be known as judicial magistrates.

International community too welcomes action against corruption. The United States wants to see election in Bangladesh as soon as possible in an appropriate way according to the constitution and rule of law. But Washington also wants "to make sure that there is accountability in government, that corruption and any other illegal activities are managed. At the same time it is strongly opposed to the military takeover of the government and would like to see the charging and prosecution of the detainees in a manner consistent with Bangladesh's laws and international standards of due process. The US has also offered its

help to Bangladesh in fighting corruption. European Union (EU) Ambassador to Bangladesh Stefan Frowein has stated that the international community supports the government's crackdown on corrupt politicians, terming the recent arrests the "right thing" to do. Envoys of the Asian countries have praised the caretaker government's efforts to establish a role model for the future government in Bangladesh. Similar sentiments have been expressed by the development agencies like the Asian Development Bank (ADB) and the United Nations Development Programme (UNDP).

Both India and Pakistan have expressed their interest in providing support for election affairs in Bangladesh and sharing their experiences of electoral process. The US Ambassador in Dhaka Patricia A Butenis has also stressed the need for reforms in political parties to go with the changed political scenario and public demand. Speaking to media, the US envoy said that she encouraged AL and other parties including BNP to examine the wrong practices inside the parties and to find out what the people want.

The general public of Bangladesh which has been suffering at the hands of corrupt political leaders has welcomed the actions of 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.

The military of Bangladesh has tried to dispel this fear. Army Chief Lt General Moin U Ahmed 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."

10.2 How Political Parties tried to and trying to Manipulates the Post of Chief Advisor?

Political parties tried to manipulates chief advisor post for many time and also trying now.

They always want to seta person who will be on their favor. That’s why they always try to do some kind of mechanism for the chief advisor post.

In 2006, when BNP government was on power they want a person who will be in favor of them to be the chief of caretaker government. For that justice K M Hasan was the fittest. He was BNP’s secretary for international-affairs. He was also a relative of Faruk, who was one of the killers of Sekh Mujib. So BNP was petty sure that he will be their favor. To make him fit for the chief advisor post BNP went for fourteenth amendment to the constitution and increased retirement age of justices. But because of the high political pressure and protest of Awami League, they don’t able to implement the conspiracy. Then they went for another one, they appointed the president who was also in their favor as the chief advisor bypassing all other alternative.

Awami League is also trying to manipulate the chief advisor post now. They don’t maintain the seniority for appointing chief justice post. Even they don’t consider merit. Justice Motin is the most senior and justice Naim is the most meritorious. But they appoint Justice Khairul Haq as chief justice and he will be the next chief advisor of caretaker government. They appoint Justice Haq for that post because they think that he will be favorable for them. He has cancelled the Fifth Amendment. On the other hand justice Naim is well qualified but he is the brother of BNP leader Hannan Shah. So they really don’t trust the person.

10.3 The Debate about the Reform of Caretaker Government among the Political Parties The idea of reform of caretaker government first came into focus around the year 2006, when BNP design such a mechanism that the chief of advisors of caretaker government will be a person who was affiliated with BNP in past.

In 2006, before the formation of new caretaker government, AL demand for reform of caretaker government system. They had some specific reform proposal. Main three of them were as below: • • •

The chief advisor of the caretaker government should be elected by consultation with major political parties.

The chief advisor will get the same power as it is prime minister.

The armed forces will be under the control of chief advisor, not under the control of president.

AL leader’s one point behind these reforms proposal was that the framework for selection of a chief adviser acceptable to all parties was very much there in the existing constitution.

There are some options about the appointment of chief advisor in the thirteenth amendment to the constitution and the second last option provided is on the basis of consultation with political parties. The leaders demanded to exercise of this option.

AL leader’s another point behind these reforms proposal was that the president is selected by the majority party in the parliament. Under normal circumstances president work on the advise of the prime minister. When parliament dissolve, then president own the executive power. Chief advisor is accountable to the president. But chief advisor is the replacement of prime minister.

As Suranjit Sengupta said on that time: “Chief adviser should have same powers as prime minister” This is not consistent with the principles of parliamentary democracy in the first place according to AL leaders. Also the president is selected by the majority party can get favor at the time of caretaker government if the president have the executive power and control over armed forces. AL leaders also accused that these were the reason behind their defeat in 2001.

AL leader Abdul Jalil said on that time: “2001 forced us to see defects in the system” But the leaders of that time’s ruling party BNP, defended that if they start to select the chief advisor on the basis of consultation with ‘all’ political parties then finding the right person for the all parties will be impossible. Because they had a belief that major political parties, who are not able to reach consensus on minimum national issues will never be able to rich to the solution of selecting the right person. They also said that caretaker government is for three month but the regular elected government for five years, so it will hhnot be wise to compare each other. The caretaker government must be accountable to president because after the election just the new government form. So if caretakers are not accountable to president then they don’t have any accountability to any one because they are not elected

government and they are just for routine work for the interim period. BNP leader Moudud Ahmed said on that time: “Non-elected chief adviser not equal to elected PM” They also defend that president is not elected by any party; he is elected by the parliament. They strongly believed that the ‘four-person factor,’ whom are the president, the chief adviser, the chief election commissioner, and the chief of staff of the army don’t have any influence the election results. Khandaker Mosharraf Hossain, BNP standing committee member said on that time: “1996 and 2001 proved no advantage for incumbents” “Before the 1996 elections, the president Abdur Rahman Biswas, the chief election commissioner Abu Hena, and the army chief Lieutenant General Nasim, were either elected or appointed by the then BNP government with a belief that they would not be harmful to the party. And according to the constitution, Justice Habibur Rahman was the obvious choice as the chief adviser. But the Awami League won the election.”

But in 2009, the debate on caretaker government system got a new shape. The rolling party Awami League’s leaders think about the change of caretaker government. Their general-secretary Syed Ashraful Islam publicly said this system as a failure. He also suggested that there should be a debate among the political parties about the future of the continuation of caretaker system. On June 28, 2009 when the budget session of parliament was going on, Syeda Sajeda Chowdhury also said in the parliament to bring to an end the caretaker government system to the parliament members. Also the Awami league leader Suranjit SenGupta called for the termination of caretaker government. But BNP leaders reacted to this as AL was trying to capture the power again by elation manipulation. Then the debate turns to anew way. To neutralize the situation the Alauddin Ahmed, who is prime minister’s avdisor said that some Awami league leaders are talking about the change in caretaker system but the governments actually didn’t have any plan to change that on that time.

In 2010, Prime Minister Sekh Hasina said to the journalist at New York that her government doesn’t have interest to change the system of caretaker government system though they have a bad experience of caretaker government for two years.

Conclusion The caretaker government of Bangladesh may or may not be acting as a tool in the hands of military, but its prolonged stay might lead to unpalatable consequences. Several Bangladesh leaders feel that the present environment would create a negative image of politicians and put military in a positive light. In these circumstances, it is possible that some army General might try to seize power. Several people in Bangladesh also feel that as the crackdown is being done against the corrupt leaders and not against those leaders who have been associated with Islamist militancy, and that it might actually strengthen extremist forces. They feel that under emergency only the political activity is banned and not the religious activity. This situation might result in a strengthened political Islam which would be equally dangerous.

Finally, some also believe that by delaying election in Bangladesh the CTG might actually be acting in favour of BNP, because a quick election now is expected to bring Awami League with a huge majority in power. A delay might change this situation. Bangladesh constitution

has visualized the caretaker government as a stop-gap arrangement to hold elections. But this time circumstances took such a turn where a number of new responsibilities have fallen on the second caretaker government in charge after the end of the Khaleda Zia regime. The new caretaker government appears sincere in implementing these responsibilities. But this has also delayed the holding of elections in Bangladesh and installation of a democratically elected government. Bangladesh at the moment appears to be grappling with these difficult questions and conflicting expectations.

Recommendations for Possible Changes of Caretaker Government or Alternative of this System 11.1

Even Bangladesh is a democratic nation but the system of caretaker government proves our immaturity in terms of democratic system. The innovation of caretaker government is not our credit, it is our lacking. It can’t be a solution, it is an emergency condition. It proves the mistrust among our political parties and unstable political situation; and it born from that situation, so it can’t be a solution, it will create some new problem every time. This system can prolong for a critical and momentary moment but not forever. Now reformation can be occurred in the current system. Step by step this system can be knocked down. So we need to re-think about this system. But it will be best if we can remove this unexpected child in democracy. Some necessary stapes should be taken to change this situation: •

• • • •

We have to implement the idea of truly independent election commission with independent infrastructure and manpower. The present Chief Election Commissioner (CEC) ATM Shamsul Huda recently said it is possible to hold free-and-fair elections under a political government. Previous CEC Abu Hena also said that it is obviously possible to hold free-and-fair election under a political government but it should be more powerful.

Law and order ensuring agency will be under the control of Election Commission in the time of election. Political recruitment in this kind or agency should be stopped.

Civil society should be very active in terms of participation and evaluation.

Create social awareness to create a free election commission.

In terms of appointing chief election commissioner and chief justice, prime minister should not give any kind of recommendation to the president. A panel will be create consist of representative form civil society to recommend the name of chief justice.

Before doing these we the people especially the politician have to change their constricted mentality of refusing election results, they should respect the popular consent and accept the victory of their opponents. When our politicians will able to carry on this kind of acceptable mentality and will able to respect each other, then it will become possible to change the system of caretaker government.

11.2

Reactions

Initial reactions of the public were welcoming. The arrests 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. Almost all of the nation's television channels are owned by members from one of the two major parties.

11.3

Reforms

There has been a major change in the election system as the caretaker government has introduced Voter ID cards (with photograph) for the first time. The Bangladesh Army including members of other military forces were deployed throughout the nation including the remotest areas.

They were equipped with laptops, and small digital cameras in an effort that would result in the most orderly voter's list in Bangladesh's history.

The government had also made significant advances in their drive to bring corrupted politicians to justice. The anti-corruption unit of the government known as Durniti Domon Commission (DUDOC) was able to incriminate a large number of politicians including former Prime Ministers and Chairpersons of the two major parties - Khaleda Zia and Sheikh Hasina.

There is a national consensus supporting electoral reforms to ensure a free and fair election and for an effective “caretaker government�. It is important for the Election Commission to be impartial so that it can effectively discharge its role. An effective caretaker government is a necessary complement to ensure that the state machinery is impartial.

11.4

My Own Observation and Suggestion

Since the last caretaker government took almost two years instead of three months to allow the Election Commission to hold the 9th parliamentary elections, questions have been raised as to whether the system should remain or not as it failed to achieve the desired objective.

The caretaker government is a unique institution, to be found only in Bangladesh, largely because the leaders of major political parties were of the view that the ruling parties could not hold a free, fair and credible parliamentary election as it would be manipulated in favour of the parties in power.

Three elections were held in 1996, 2001 and 2009 -- under the caretaker government system. All of them had been judged by losing parties as not being free and fair, even when international election observers considered them to be free and fair.

Losing parties cast aspersions on not only of the head of the caretaker government but also of the president and the Election Commission for not being able to hold fair elections.

Such allegations have tarnished the image of the institutions.

The system of the caretaker government suffers from major faults. They are:

•

•

•

•

•

The language of the provisions of the Constitution (58B to 58E) that deals with the system is not precise and definitive, and conflicting interpretations could be easily provided leading to illegality of the institution.

While the head of the caretaker government is a non-partisan person, the president is most likely to be politically aligned because he is elected by the ruling party.

Therefore, there is a conflict of intent or goal between the president and the chief adviser in running the caretaker government.

The system of the caretaker government is diarchic in the sense that powers and functions are divided between the caretaker government and the president. Some constitutional experts say that the system created two separate but potentially conflicting institutions the president and the caretaker government.

For example, during 1996 the chief adviser had some difficulties in working with the president, and in 2006, four advisers had to resign from the advisory council because they could not work with the president cum chief adviser. This means that if the system were to work, the president would have to be non-partisan/ non-political.

The advisers, though appointed by the president, cannot be dismissed unless they resign themselves. This is a departure from any system of government.

The 1972 Constitution has been amended 14 times as of today, often to suit political agenda. As a result, the organic character of the Constitution has fallen apart because many of the amended provisions in some chapters are inconsistent with those of the un-amended ones.

Furthermore, whatever powers the president had were totally marginalized by the 1991 Twelfth Amendment Act. It is believed that untrammeled powers of the prime minister, as the executive head of the government, have been the source of political ills characterised by gross abuse or misuse of power.

Accordingly, it is suggested that a Constitution Review Commission may be set up to examine many provisions of the Constitution that seem to be contrary to the spirit and letter of multi-party democracy.

The system of the caretaker government may be abolished, and one suggestion is to incorporate the following provisions in the Constitution: As soon as the parliamentary election date is announced, a national government of all parties represented in the last parliament will be constituted with no policy-making powers.

This means that the government would turn into caretaker mode, discharging only routine functions.

The tenure of the national government shall cease at the expiration of three months, and its primary function would be to assist the Election Commission to conduct fair and free parliamentary elections.

If elections cannot be held within three months, the president shall recall the dissolved parliament, and that will decide the time by which the national government will cease.

The Election Commission will have to be provided adequate powers to implement the code of conduct for party-candidates in terms of the Representation of the Peoples Order 1972 as amended.

The bottom line is that an un-elected government has no place in democracy and the Commission may devise some mechanism to ensure credible elections in the country.

List of Annexure Annexure - 1 The Constitution of Bangladesh [CHAPTER IIA] NON-PARTY CARE TAKER GOVERNMENT 58B. Non-Party Care-taker Government (1) There shall be a Non-Party Care-taker Government during the period from the date on which the Chief Adviser of such government enters upon office after Parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of Parliament.

(2) The Non-Party Care-taker Government shall be collectively responsible to the President.

(3) The executive power of the Republic shall, during the period mentioned in clause (1), be exercised, subject to the provisions of article 58D(1), in accordance with this Constitution, by or on the authority of the Chief Adviser and shall be exercised by him in accordance with the advice 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 Advisors, all of whom shall be appointed by the President.

(2) The Chief Adviser and other Advisers 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 appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:

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

(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.

(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.

(7) The President shall appoint Advisers from among the persons who area. qualified for election as members of parliament; b. not members of any political party or of any organization associated with or affiliated to any political party; c. not, and have agreed in writing not to be, candidates for the ensuing election of members of parliament; d. not over seventy-two years of age.

(8) The Advisers shall be appointed by the President on the advice of the Chief Adviser.

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

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

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

(12) The Non-Party Care-taker Government shall stand dissolved on the date on which the prime Minister enters upon his office after the constitution of new parliament.

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 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.

58E. certain provisions of the Constitution to remain ineffective Notwithstanding anything contained in articles 48(3), 141A(1) and 141C(1) of the Constitution, during the period the Non-Party Care-taker government is functioning, provisions in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter-signature shall be ineffective."]

Annexure – 2 A Draft Caretaker Convention for the UK Modeled on that in Australia and New Zealand Supplementary Memorandum by Robert Hazell and Peter Riddell, 21 February 2010 This supplementary Memorandum is submitted to make the case for having a proper caretaker convention in the UK. The Cabinet Office might be encouraged to do so if the Committee expressed its support for a stronger convention.

The current guidance is as follows: “During an Election campaign the Government retains its responsibility to govern and Ministers remain in charge of their Departments. Essential business must be carried on.

However, it is customary for Ministers to observe discretion in initiating any action of a continuing or long-term character. Decisions on matters of policy, and other issues such as large and/or contentious procurement contracts, on which a new Government might be expected to want the opportunity to take a different view from the present Government should be postponed until after the Election, provided that such postponement would not be detrimental to the national interest or wasteful of public money.” (Cabinet Office General Election Guide 2005, Guidance Note G).

The guidance is deficient in three respects: •

It applies only during election periods

•

It offers detailed guidance about public appointments (in the next four paragraphs), but no further guidance about government contracts

•

It contains no guidance about how to consult the opposition parties, if that is required.

In Australia and New Zealand the caretaker convention also applies after an election, until a new government is sworn in. The underlying principle is that a government derives its political authority to govern from commanding the confidence of Parliament. If the government does not enjoy that confidence, it should be careful not to take any decisions which might tie the hands of a prospective government which does enjoy confidence. As the Australians put it, ‘A caretaker government has legal but not political legitimacy. Its role is to ensure the ordinary business of government continues until the outcome of the electoral contest is clear’ (Davis et al 2001).

The text of the New Zealand caretaker convention is at pp 28-31 of our original submission. In essence it can be distilled into the following principles: Caretaker convention  The caretaker convention applies after an election, until a new government is sworn in; and mid term, if a government loses the confidence of Parliament.  The incumbent government is still the lawful executive authority, with all the powers and responsibilities that go with executive office. It is likely to state that it is operating as a caretaker government.  If decisions are required on significant or controversial issues, such decisions should: be deferred, if possible; handled by a temporary arrangement (eg extending a board appointment, or rolling over a contract for a short period); or made only after consultation with other political parties.  Such decisions will be referred to the Minister, who must consult the Prime Minister in cases of doubt, or before approaching other political parties.  The immediate need in the UK is to develop an understanding that a caretaker convention should apply after an election, if it is not clear who can command confidence in the new Parliament, until that becomes clear and a new government is sworn in. This period is likely to last only for a few days, but it could possibly last weeks, if recent experience of parliaments in Australia, New Zealand, Scotland and Wales is any guide. In that circumstance it is desirable to have a shared understanding that the incumbent government continues to govern, but subject to a caretaker convention.

This is not just a matter of constitutional nicety, but could be vital to public policy, especially in a financial crisis. In New Zealand the outgoing National party Prime Minister Robert Muldoon faced a financial crisis after the1984 election. He was urged to devalue the NZ dollar in line with the incoming Labour government’s policies. He refused, and since he was legally Prime Minister, Labour were unable to prevail. It was only after three days of political and constitutional wrangling (during which Muldoon’s own colleagues went to see the Governor General to urge his dismissal) that Muldoon relented and agreed to devalue.

The result of Muldoon’s refusal to devalue was later estimated at NZ$800 million: over 2% of NZ’s GDP in 1984.

It was after that crisis that New Zealand developed a proper caretaker convention. We do not want to wait for a similar crisis before we are forced to develop a caretaker convention here. Far better to put the convention in place so that everyone knows the procedure just in case we face a financial or other crisis at the start of a hung parliament. If the Committee gave its cross party support to that principle, the Cabinet Office could work out the details by developing a proper caretaker convention. The convention needs to apply after the election until a new government is sworn in; to cover government contracts and matters such as financial policy; and to explain the procedures for consulting the opposition parties.

Bibliography Books: 1.

The Constitution and Constitutional Law, Dr. Husain, Belal Joy, First edn. January 2007.

2.

Constitution, Constitutional Law And Politics:Bangladesh Perspective, Halim, Md. Abdul, Third Edition, March 2006.

3.

The Legal System of Bangladesh, Halim, Md. Abdul, First Edition, May 2006.

4.

Legal History & Legal System of Bangladesh, Md. Ahamuduzzaman, First Publication, March 2007.

5.

Al Masud Hasanuzzaman, Role of Opposition in Bangladesh Politics, University Press Limited, 1998;

6.

Mizanur Rahman Khan, Shangbidhan O Tattvabadhayak Sarkar Bitarka, Dhaka City Prakashani, 1995.

7.

Davis et al, 2001. Davis G, Scales B, Lyn A and Wilkins R, ‘Rethinking Caretaker Conventions for Australian Governments’ Australian Journal of Public Administration 60:3, 11-26 Sept 200.

Websites: 1. http://news.bbc.co.uk/2/hi/africa/7629239.stm 2. http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf.

3. http://www.avoidjail.com/content/start/bailstart.html.

4. http://www.npr.org/templates/story/story.php?storyId=122725771.

List of Index Emergency Power Ordinance, 19 Criminal Prosecutions,

20