Caretaker Government and the Constitution

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Caretaker Government and the Constitution


Introductory Chapter

1.01 Aims and Objectives:

This assignment based upon the relation between Constitution and Caretaker government.

From this research work, we will be able –

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

· To know, how it is treated in different countries;

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

· To know its limitation or lacking;

· To know constitutional explanation about caretaker government;

· To provide some suggestions for Caretaker Govt.

1.02 Nature & Scope of the study:

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

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

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

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

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

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

1.03 Introduction:

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

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

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

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

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

In 1988, the fourth general elections were held again under Ershad’s autocratic government, but all opposition parties boycotted that poll demanding resignation of the military dictator. The opposition demanded elections under a no-party neutral government. Ershad had to resign in the face of a mass upheaval in 1990 and the country had first-ever general elections in 1991 under a non-party caretaker government headed by the then Chief Justice Shahbuddin Ahmed.

Al the previous general elections till 1988 were dominated by the politicized administration, black money and muscle power. The electorate did not decide the results of most of those elections on the election day but in drawing rooms of the heads of government and offices of intelligence agencies. The people were disillusioned by the election system and the results. Against the backdrop of these bitter experiences, opposition parties – Awami League-led 15-party alliance, BNP-led 7-party alliance, pro-left 5-party alliance and Jamaat-e-Uskanu raised the demand for a caretaker administration to ensure free and fair election. And Chief Justice Shahbuddin’s caretaker government was the fruit of a long-drawn movement as well as a historic declaration of the three opposition alliances. Jamaat was in the movement, but the alliances kept the party to a certain distance because of its role in 1971 liberation war.


Caretaker Government in Bangladesh

2.01 Definition of Caretaker Government:

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

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

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

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

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

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

Caretaker governments may also be put in place when a government in a parliamentary system is defeated in a motion of no confidence or in the case when the house to which the government is responsible is dissolved, to rule the country for an interim period until an election is held and a new government is formed. This type of caretaker government is adopted in Bangladesh where an advisor council led by the former chief judges rules the country for 3 months before an elected government takes over. In systems where coalition governments are frequent a caretaker government may be installed temporarily while negotiations to form a new coalition take place. This usually occurs either immediately after an election in which there is no clear victor or if one coalition government collapse and a new one must be negotiated.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]

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

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

A person who is legally responsible for the person or property of another considered by law to be incompetent to manage his or her affairs;

The noun has 2 meanings:

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

Meaning # 2: an official who performs the duties of an office temporarily.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]

2.02 Background and development of Caretaker Government:

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

In the period since independence, there was, however, a gradual public alienation from the election process owing to alleged electoral malpractices. As such, election results were always a foregone conclusion rendering no positive effects on the political process. The crisis of people’s confidence in the stage-managed election system reached its peak during the rule of government Hussain M Ershad. Restoration of democracy through fair polls was ultimately transformed into a united anti-Ershad movement by the combined opposition parties with a forceful demand for a neural caretaker government. Opposition formula for the formation of neural caretaker government was categorically mentioned in the 1990 Joint Declaration of the Three (political) Party Alliances. The Declaration specified inter alia that the political alliances would participate in the elections only when conducted by a neural non-partisan caretaker government; but before that Ershad government would have to be forced to resign and an interim caretaker government would be formed; thereafter, election commission would be reconstituted by the caretaker government to hold free and fair election.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]

In the face of the anti-government public outburst and mass upsurge, General Ershad had to yield to the movement. As such the framework for the formation of caretaker government advanced when the Joint declaration was translated into reality on 6 December 1990 through the handling over state power to the nominee of the combined opposition Justice Shahabuddin Ahmed , the chief justice of Bangladesh. Earlier, the then Vice President. Then General Ershad stepped down from the presidency giving his charge to the Chief Justice emerging as the country’s Acting President and head of the neural caretaker government. Subsequently, 17 Adviser of the caretaker government were appointed.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4]

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

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

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

At the initial phase of their movement, opposition parties did not have unanimity with regard to the framework of the proposed caretaker government. This was visualised by three separate bills submitted by the Jamaat-e-Islam Bangladesh, Awami League and Jatiya Party to the parliamentary secretariat in 1991, October 1993 and mid November 1993 respectively. The essence of these bills was more or less similar, but differed on selection of the head of the caretaker government. While Awami League was in favour of appointing the Chief Justice as the head of the interim government, Jatiya Party proposed for selection a neural person as the head of the caretaker government, and Jamaat-e-Islami demanded for forming an advisory council headed by a neural person to be appointed by the President. These bills, however, were not placed in the Jatiya Sangsad because of opposition boycott of the Sangsad and government’s reluctance to consider the case. This made the three major opposition parties to come closer and materialise their caretaker demand through agitation and hartals. To press the ruling party, they went to the extent of submitting en masse resignation of 147 opposition parliamentarian on 28 December 1994.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]

In the face of continuous agitation of the combined opposition, the Fifth Sangsad was dissolved and preparations were underway for forming the Sixth Sangsad to enact constitution amendment for caretaker government. Having failed to convince the mainstream opposition, the ruling BNP moved unilaterally to legalise the caretaker government after the Sixth Jatiya Sangsad was constitution on 19 March 1996. Thus On 21 March 1996 the Thirteen Amendment bill was raised in the Sangsad, and on 26 March 1996 it was passed by 268-0 vote.<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]

The neural caretaker government of Bangladesh had been the products of intense opposition movement centering on the forceful demand for free and fair general polls. By legalizing caretaker government through Thirteen Amendment of the Constitution in 1996, Bangladesh has founded a unique example in the existing parliamentary system.

2.03 How Non-party Caretaker Government Appeared on Political Landscape:

The demand for institutionalizing the non-party neutral caretaker government by amending the Constitution was vehemently raised after Magura by-elections held on March 20, 1994. The election held under the then BNP government of Prime Minister Khaleda Zia was marred by unprecedented fraud, stuffing ballot boxes, intimidation and violence. Ruling BNP candidate was declared elected while the opposition demanded fresh election. This turning point in Bangladesh’s political history paved the way for consolidating the mainline opposition parties against the Khaleda Zia’s government on a single demand for holding future general elections under a neutral non-party caretaker government. The opposition took nearly two years to see their demand materialized through a bloody movement.

This is for the first time in the country’s history that an international organization and foreign diplomats were involved in domestic politics to help find a solution of the political impasse over the demand for caretaker government through dialogue between government and the opposition.<href=”#_ftn7″ name=”_ftnref7″ title=””>[7]

2.04 Constitution Amendment: Caretaker Government:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prime Minister Khaleda Zia has turned down the opposition’s demand for reform of the caretaker government system. She also rejected the plea for the President’s resignation. Rather the Prim Minister and her cabinet colleagues started accusing the opposition of trying to undo the caretaker system.<href=”#_ftn8″ name=”_ftnref8″ title=””>[8]

Barrister Amirul Islam on 13th Amendment

Barrister Islam, one of the architects of Bangladesh Constitution and chief of the Awami League subcommittee on reforms of caretaker government, said the nonparty caretaker-government system incorporated in the Constitution through the 13th amendment lacks checks and balances and accountability.

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

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

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

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

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

Pointing out the weakness in the 13th amendment, he said the process of appointing Chief Advisor is basically confined to a choice from among the retired Chief Justices and ex-judges of the Appellate Division

Barrister Islam argued that a retired Chief Justice may be a highly respectable person and might have been a very successful judge, but that does not mean that he would be a successful administrator as well and could wisely preside over a political turmoil and hold a credible election.

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

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

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

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

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

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

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

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

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

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

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

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

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

There was a “troika” – the President, the Chief Advisor and the Chief Election Commissioner. “Two of them brought out lists from their drawers. On the basis of one list, civil servants were wither transferred or mad OSD while another list of the Chief Election Commission brought major amendment to the eletion law making the army as

law enforcers through the presidential ordinance, ” he said.Under the Constitution, the caretaker government would only carryout routine function and shall not make any policy decision. Besides, Islam said, a list of miscreants was prepared and handed over to the army officers posted in different districts for elections. “The list even included the name of Awami League General Secretary Zillur Rahman.”

The lawyer-politician pointed out that President Justice Shahbuddin Ahmed “did not raise his finger when these acts by the Chief Advisor and the Chief Election Commissioner were pointed out by Awami League delegation.” Islam said new Chief Election Commissioner and other Commissioners must be appointed in consultation with the major political parties “to restore public confidence” in the Election Commission.<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]

2.05 Composition of Caretaker Government:

With the passage of Thirteen Amendment, Article 58(B) (C) (D)(E) were include in the constitution which keep the following major provisions regarding caretaker government as of constitutional language: 58B. Non-Party Care-taker Government

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

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

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

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

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

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

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

(3) The President shall appoint as Chief Adviser the person who among the retired Chief justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article:

Provided that if such retired Chief Justice is not available or is not

Willing to hold the office of Chief Adviser, the President shall appoint

as Chief Adviser the person who among the retired Chief Justices of

Bangladesh retired next before the last retired Chief Justice.

(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appointed as Chief Adviser the person who among the retired Judge of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:

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

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

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

(7) The President shall appoint Adviser from among the person who is-

1. Qualification for election as members of parliament;

2. Not members of any political party of any organization associated

with or affiliated to any political party;

3. Not, and have agreed in writing not to be, candidates for the ensuing

election of members of parliament;

4. Not over seventy-two years of age.

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

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

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

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

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

2.06 Functions of Caretaker Government:

58D. Functions of Non-Party Care-taker Government

(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government and shall carry on the routine function of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.

(2) The Non-Party Care-taker Government shall give to the Election Commission all possible aid and assistance that may be required for bolding the general election of members of parliament peacefully, fairly and impartially.<href=”#_ftn10″ name=”_ftnref10″ title=””>[10]

58E. Certain provisions of the Constitution to remain ineffective

Notwithstanding anything contained in articles 48(3), 141C(1) of the Constitution, during the period the Non-Party Care-taker government is functioning, provisions in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter-signature shall be ineffective.<href=”#_ftn11″ name=”_ftnref11″ title=””>[11]



Election under Caretaker Government and Elected Governments

3.01 Why Caretaker Government:

One of the popular demands during the anti-Ershad movement was for free and fair elections under a neutral caretaker government. This was spelt out in the joint declaration of 19 November 1990 of the three alliances. This was a sequel to the farcical elections the Ershad government had held. The elections held by Ershad government were fraught with misdeeds, from capturing of polling booths to media coup and vote dacoity. There was unprecedented violence at the polls in 1986, but the Election Commission gave out that the elections were held peacefully. Gen. Ershad’s party won only through declaration in the electronic media. The elections were held under martial law when there was no freedom of the media.

In the Third World countries, elections are plagued with malpractices. But what happened in the Bangladesh was blatant. This started with the referendum of “Yes-No” votes on 30 May, 1977. It was reported that 88 per cent of the voters had cast valid votes. The people knew that not even 5 per cent of the voters turned up to cast votes. Foreign press commented on this. Even the general elections of the administration and seats were allocated to the parties according to a prepared blueprint. The general elections were also held during martial law.

Gen. Ershad followed the track of the Gen. Zia in the referendum of “Yes-No” votes of March ’85, general election of ’86, ’88 and the presidential election of’86. The general elections of’86 were a tragedy. The presidential election was held with procured contenders patronized by him. The Election Commission simply used to carry out the orders of the Chief Executive.

Gen. Ershad had to concede to stepping down to make way for free and fair election under neutral caretaker government. The elections, held in February 1998, were acclaimed worldwide as an example of free and fair elections. The Election Commissioner became a symbol on neutrality. The reason for this was that the government had o stake in the elections and did not reduce the Election Commission sub-office of the president’s secretariat.

It, however, did not take long for the Election Commission to slump to the floor with the by-election of Mirpur constituency of Dhaka. There was a repetition of the ’86 election in miniature. The same incidents of stuffing of ballot boxes and interference by high officials at the counting centres and delayed declaration over of the electronic media took place. The Election Commission completed a full circle of the ’86 scene in the by-election at Magura, a constituency the Awami League had been representing since 1954. Stuffing of the ballot boxes, goons of the ruling party moving about freely brandishing weapon from microbuses, criminal released from jails to help in the election were common sights. The Chief Election Commissioner had a preview of all these and he left Magura the day before the4 election, although he had said earlier that he would be present personally on the day of eletion. Before he left Magura he promised to make a statement from Dhaka. He did nothing of the sort and the contenders from the opposition parties rejected the election result.

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

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

Pakistan is another country where the election results do not reflect the will of the people. This was recognized by the legislature and the concept of a caretaker government was introduced by Article 48(5)b in the Constitution which reads, :When the President dissolved the National Assembly, he shall his discretion appoint a caretaker cabinet.: This is the result of Pakistan’s electoral experience.

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

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

The opposition members have gone so far as to declare that they not only would boycott any election held by the ruling party but would also resists any such election from being held. The ruling party has the option of either holding the election or allowing a further crisis to brew or to step down and pave the3 say for an election under a caretaker government. A formula is afloat for the moment. The Prime Minister, however, has to resign, as soon as the date of is announced, facilitating the President to form a caretaker cabinet in terms of Article 56(A) of the Constitution. If she insists on resigning 30 days before the election the purpose of having a caretaker government will not be served. The reservation of the opposition members is because of the presence of the PM in the administration, which they contend would influence the process of the election. The country awaits the decision of the ruling party. The ruling party loses or gains whichever way it decides to steer the country to the ballot box. The apprehension of the opposition cannot be brushed aside also. Merely empowering the Election Commission or voting against identity cards will not be enough to ensure a free and fair poll.<href=”#_ftn12″ name=”_ftnref12″ title=””>[12]

3.02 The election under the CTG of Justice Shahabuddin Ahmed(1991):

The caretaker government of Justice Shahabuddin Ahmed took some immediate steps to create conditions for a free and fair election.The EC was reconstituted. Three Supreme Court judges were made election commissioners and the EC was given independence and authority to conduct a fee and fair parliamentary election. To ensure impartiality of the election administration at the district level, heads of civil and police administration in most of the district were transferred. And all the restrictions on freedom of press, imposed by the military rules, were withdrawn. A large number of international observer groups, most notably from the SAARC, Commonwealth, Britain and Japan were invited to observe the national parliamentary election. Election was held on 27 February 1991 and they were the whole peaceful. Fifty five percent of the voters cast their ballots, of which 53 percent were men and 47 percent were women. 1 All observer groups expressed satisfaction with the elections and deemed the process to be free and fair.<href=”#_ftn13″ name=”_ftnref13″ title=””>[13]

The results of the 1991 parliamentary elections established several trends in the country’s politics (see Table 1 in the Appendix). First, it showed that the two major political parties, the AL and the BNP enjoy near equal popular support. Both parties polled 31 percent of the popular vote (BNP 31.4 percent and AL 31.1 percent). Second, the result demonstrated a wide gap between the popular vote and winning of seats in parliament. For example, with a near equal popular vote, the vote and wining of seats while the AL won only 86 seats. Third, two other smaller parties emerged. The Jatiya Party (JP), founded by the military dictator Ershad, won 35 seats and 12 percent of vote share. It may be noted that during the course of the election campaign. The Islamist Party, Jamaat-e-Islami (JI), won 18 seats with a 12 percent vote share. The left leaning National Awami Party (Muzaffar) and the Communist Party. Bangladesh, both of whom were part of an electoral alliance with the Awami League each own 5 seats. In all, small parties together with independents won 19 seats in Parliament.<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]

Since the AL and the BNP could not form the government on their own as neither commanded an absolute majority, JP and JI were in a position to exercise leverage over the two main parties. The BNP succeeded in getting the support of the Jammat which enable the party to secure a majority vote of confidence in the parliament. The caretaker government of Justice Shahbuddin Ahmed, then, handed over power to the BNP. Sheikh Hasina, leader of the AL, was initially reluctant to accept the election results arguing that there were “subtle” riggings but since all election observer groups agreed that the election were on the whole free and fair, she accepted the results.

3.03 Elections under the BNP (1991-1996):

In the first two years of the BNP rule, there was fierce competition between the AL and the BNP in fifteen by-elections to the parliament. But serious disagreement about the fairness of the electoral process began from 1993 onward when the AL alleged that the by-election in Mirpur was rigged by the BNP government. In the following year, the AL won the mayoral election in the capital city, Dhaka, and the port city, Chittagong, but the election were marred by bloody clashes between the parties, resulting in the killing of several AL supporters.

In 1994, the opposition political parties, including even the JI who helped the BNP form the government in 1991. started a nation-wide agitation demanding the institution of non-partisan caretaker government to organise the next parliamentary election. The immediate cause of the agitation was the victory of a BNP candidate in a by-election in Magura which was an AL stronghold for over 40 years and even in 1991, the AL candidate won the seat with on overwhelming majority. The chaos and confusion over that election was compounded by the hasty departure of the Chief Election Commissioner (CEC), Justice Rauf from the scene, in apprehension of his inability to ensure a free election which lent credence to the opposition’s charges of vote-rigging by the government. The failure to conduct a fair and transparent election in Magura was a blow to the image of the EC which appeared to have demonstrated its weakness in coping with the intimidating behaviour of the ruling party and the partisan conduct of the administration.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]

Instead of opening a dialogue with the opposition, the BNP outright rejected the demand for a neutral, non-partisan caretaker government. In protest at the non-responsiveness of the regime, the opposition parties initiated a boycott of the parliament backed by a series of protest activities including hartals (strikes), rallies and public meetings. In December 1994, the opposition comprising nearly half of the members, 147 in total, resigned from Parliament. The country was, thereby, plunged into a full blown crisis. Several efforts were made by international organisations including the Commonwealth Secretary General, and a national citizens* group known as G-5 to mediate the crisis and bring the two sides to a negotiated settlement.<href=”#_ftn16″ name=”_ftnref16″ title=””>[16]

The en masse resignation created a dilemma: whether to call for fresh elections or to hold by-elections in the vacated seats. The Supreme Court ruled in favour of by-elections to be held in September 1995. In the meantime, the opposition parties intensified their agitational program and the EC used floods as an excuse to invoke the “act of God” clause to postpone the by-elections further till December 1995. On 24 November 1995, the BNP government then dissolved the parliament thus avoiding the necessity of holding by-elections in half the seats of parliament whose five year term was anyway coming to an end by February 1996. The dissolution of parliament in November 1995 made it mandatory for the EC to organise elections within 90 days, that is. by 21 February 1996.<href=”#_ftn17″ name=”_ftnref17″ title=””>[17]

After changing the dates a few times, the EC settled on 15 February 1996 as the final date for the elections. The BNP and the opposition parties, however, could not resolve their differences over the need for a neutral, non-partisan caretaker government to oversee the elections. The two main protagonists. Khaleda Zia and Sheikh Hasina. refused to meet face to face and were adamant in their respective stands. The opposition eventually decided to boycott the February 1996 elections but the BNP pushed ahead with a one sided election.

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

3.04 Elections under the CTG of Justice Habibur Rahman (JUNE 1996):

Five days after the passage of the 13m amendment, Khaleda Zia requested the President to dissolve the parliament and the following day, on 31 March 19%, heresigned. The President then invited the last retired chief justice, Muhammad Habibur Rahman, to take on the responsibility of CA and a ten member Council of Advisors

were sworn in on 9 April 1996. Thus a two year long movement by the opposition, marked by repeated hartals and violence, came to an end.

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

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

However, in May 1996, barely a month before the scheduled 12 June election, a crisis developed due to a dispute between the President and the Army Chief which underscored one major weakness of the 13ih amendment: that is, keeping the Ministry

of Defense under the control of the President and not the CA. Normally, under a parliamentary system, the defense ministry stays under the control of the Prime Minister. Therefore, under the 13ih amendment, the defense ministry should have been placed under the control of the CA who acts as the Prime Minister in a CTG. The placement of the defense ministry under the control of the President created a dual administration and opened up possibilities for partisan interference via the office of the President. This was particularly problematic since President Abdur Rahman Biswas was not non-partisan; rather he was selected for the post because of his partisan loyalty to the BNP.

On 20 May 1996, President Biswas, without consulting the CA suddenly dismissed the Chief of the Army staff, Lt. General A.S.M Nasim, and appointed a new army chief. Major General Mahbubur Rahman (who after retirement joined the BNP). This led to a near confrontation between troops loyal to the opposing sides. However, a bloodbath was avoided and the crisis was diffused when the CA, Justice Habibur Rahman, went on T.V. and radio and appealed for peace and discipline. The AL leader. Sheikh Hasina, charged that the dismissals in the army were motivated by “BNP’s conspiracy to sabotage the polls.” The opponents of the AL. on the other, accused General Nasim and other dismissed officers of being AL sympathisers and planning a coup.1 This charge was questionable since General Nasim had been appointed to the post of Chief of Staff, by Prime Minister Khaleda Zia, superseding several officers senior to him in the army hierarchy.

The 12 June 1996 election organised by the Habibur Rahman CTG saw large scale involvement of Bangladeshi non-governmental organisations (NGOs) in voter education and election monitoring activities. A group of civil society organisations joined together to form a Fair Election Monitoring Alliance (FEMA). In addition, a total of 200 foreign observers from 35 countries came to observe the polls. <href=”#_ftn18″ name=”_ftnref18″ title=””>[18]

Voting turn out was exceptionally high: 75 percent of eligible voters cast their ballots, of which 51 percent were men and 49 percent were women. Polling was generally peaceful. Again all observer groups, domestic as well as international, certified the elections to be free and fair.’

The results of the June 1996 elections (see Table 2 in the Appendix) again showed that the two main parties, the AL and the BNP, have almost equal popular support. The AL secured 37.4 percent and the BNP secured 33.6 percent of the popular vote. This time, however, the AL won more seats than the BNP. AL’s seat strength was 146 and the BNP’s 116. JP’s strength remained roughly the same as in 1991. It secured 32 seats with 16.4 percent of popular vote. JI, however, suffered a setback with only 3 seats and 8.6 percent of popular support. The other smaller parties who won in 1991 lost out winning only 3 seats and 4 percent of the vote. Particularly striking was the loss of seats by all left leaning parties. Several popular leaders won from multiple seats; 24 seats were thus won. The election results indicated that in 45 seats out of the 300 member parliament electoral victory was won with a very small margin of less than 3000 votes difference. 2 These marginal seats became the subjects of much controversy and influenced coalition politics in the next election. Again as in 1991. no party was able to get an absolute majority in parliament and both the AL and the BNP started wooing the smaller parties for support.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19]

Khaleda Zia initially refused to accept the AL as the winner and the BNP offered various deals to the JP to secure its support including a pledge to release its President, Ershad, from jail. But the JP threw in its lot with the AL which then gave the AL a clear majority in parliament. On 23 June 1996, eleven days after the election, Sheikh Hasina was finally sworn in as the Prime Minister and