CARETAKER GOVERNMENT IN BANGLADESH

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CARETAKER GOVERNMENT IN BANGLADESH

1. INTRODUCTION

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.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]

Bangladesh is a democratic country. The aim & object of t he neo-Bangladesh was to ensured rule of law & fundamental human rights for its citizen. Today democracy is playing a vital role in international politics. Bangladesh is not for behind from that system. The Parliamentary democracy was incorporated in the constitution earlier.

After the independence of Bangladesh, it suffered from Military dictatorship several times. After 1991 Bangladesh Nationalist Parties (BNP) came into power throw an election. Free & Fair Election is the prime requirement of Democracy. But this democracy was injured by the Ruling parties several times. The opposition parties could not keep their confidence in he general Election under the Ruling party. In these regard, a non-party caretaker Govt. System was emerged during 1996.’ In the face of the movement, sixth parliament passed the constitution (Thirteenth Amendment) Act. 1996 providing for a non-party caretaker Government consisting of one chief adviser at its head & not more than ten Adviser for a Limited period during which parliamentary election is to be held.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]

2.1 Concept of caretaker Government caretaker:

The concept of caretaker government is used in various ways in different countries. In true sense the term caretaker government is a non-party government & obtain itself from contesting the election & is pointed particularly for conducting a free & fair diction.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]

When the Parliament has expired its duration or is dissolved the existing government continues in office till the new government enters into office. This continuing government undertakes to take care of the affaires of the state without making any serious and bold policy decision. This presumed caretaker government is recognized either by a constitutional convention or express constitutional provision. In some other instances the caretaker government is a government which has lost the confidence of the Parliament but has been asked by the President to continue till an alternative government enjoying the confidence of the parliament is formed. It is only a temporary arrangement to ensure that the day to day’ functioning of the state machinery is not held up due to the absence of a government. It is a practice that the interim government does not make any important decisions or large financial commitments. This government seeks reelection and so cannot be called Caretaker Government in the proper sense of the term. But in Bangladesh the caretaker government we mean and see today is a suit generic one. Here a government headed by a retired Chief Justice of the Supreme Court is formed to assist the Election Commission in holding the parliamentary election. The outgoing the Prime Minister and the cabinet go out of the office totally.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4]

2.2 Various Kinds of Caretaker Govt.

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

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 for 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 though 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, the Prime Minister in office at the-lime of the dissolution of the legislature or The termination of its constitutional lie, carries on the administration of the country as head of the caretaker government. This transformation is recognised in all democratic countries. In Britain. Canada, New Zealand it is a conventional practice and in countries with written constitutions it is specifically mentioned that when parliament is dissolved the sitting government continues in office till its successor has entered upon office.

T-e-be_noted-4hat this transformed nature of the sitting government during the election period is not universally recognised as caretaker government as such and it cannot be said to be ‘caretaker government’ in true sense of the term, for this government talcing 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 ^1S automatic and natural in countries where constitutionalism is practiced.

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 conductin^g 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 _th_at it is not British practice to appoint a ‘caretaker government’ for the duration of general election. It was done in 1945 because the wartime coalition had broken up. The electors had to decide whether they wanted a Conservative Government or a Labour Government, and meanwhile the King’s servic⁶ had to be carried on. This was quite exceptional. The government which advises the dissolution remains in office throughout the election and continues to do so after the election, unless it is defeated.

Again, in, 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 appoint a date not later than 90 da^ys from the date of the dissolution, for hold’n^g of a general election to the Assembly; and appoint a Caretaker Government”.

But there is no provision for appointing a non-part^y 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.

Caretaker Government in True Sense

In true sense the term ‘caretaker government’ means an interim 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 provide by the 13th Amendment of the Constitution of Bangladesh ensures a caretaker government in true sense, for none of the government

Law has the right to contest general election. Caretaker government of Pakistan of 1993 and of 1997 were caretaker governments in proper sense. The interim government to conduct election in South Africa in 1994 was also a caretaker government in true sense. The interim government of Justice Sahabuddin Ahmed which was formed, after the fall of military dictator Ershad regime in 1990 ^ln Bangladesh was riot, from constitutional point of view, any caretaker government because there was no provision for caretaker government as such in the Constitution of Bangladesh. Under the provisions of the Constitution Justice Sahabuddin Ahmed — as appointed as the Vice-President and when Ershad resigned Sahabuddin Ahmed acted as the Acting President and until lie came out of his office he acted as the Acting President. But if we examine his government from factual, political and philosophical point view, we find that his government was essentially though not constitutionally a caretaker government in true sense. Because all of his government were non-political persons and none of them, took part in the election.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]

Caretaker Govt. Under Bangladesh

3.1 Caretaker Govt. of Bangladesh

The Caretaker Govt. of Bangladesh is a Government takes the power offer a ruling government finish its five years. Then the Caretaker Govt. rules the nations for 3 months to place a fare election for all the parties in Bangladesh. No other countries have adopted any such Govt. in history. Only Bangladesh has it. The Military didn’t step in & took the power. It is actually helping the current Govt. to accomplish its Govt. which is abolish corruption.

Ordinarily, the Caretaker Govt. of Bangladesh is a form of Govt. system. The Country in which ruled by a selected Govt. for an interim period during transition from one Govt. to another, after the completion tenure of the ‘Lorrner. The main objective of the Caretaker Govt. is to create an environment in which an election can be held in a free & fair manner without any political influence of the out going Govt. The held of the chief Adviser & is selected by the President and the chief Adviser, selects the other adviser. The administration is generally distributed between the advisers. The chief Adviser & the other advisers are committed for their activities to the President.

Chief Advisers since 1991

Justice Shahabuddin Ahmed — Election of 1991.

Justice Habibur Rahman — Election of 1996.

Justice Latifur Rahman — Election of 1991.

Professor lajuddin Ahmed was compelled to resign.

Dr. Fakhruddin Ahmed — Election of 2008.<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]

According to Article 58 (B) of the constitution provides. The Nonparty Caretaker Govt. There shall be Non-party Caretaker Govt. during the period from the date on which the chief Adviser of such Govt. enters upon offer office Parliament is 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.

The Non-party Caretaker Govt. shall be collectively responsible to the President. Article’ 58 (B.C.D.E) Provides the Non-party Caretaker Govt. of Bangladesh.

Certain provisions of the constitution to remain ineffective provides according to the Article 58 (E). In articles 48 (3), 141A(1) & 141C(1) of the constitution during the period the Non-party Caretaker Govt. requiring the President to act on the advice of the Prime Minister or upon his prior counter signature shall be in effective.⁷

3.2 Historical Background of the CTG

The most significant event in Bangladesh politics in 1994 was the continuous boycott of Parliament by opposition parties^ they pressed their demand for a constitutional amendment that would provide for holding all future national elections under a neutral caretaker government. This demand was speeded up when Awami League (AL), Jatya Party (JP) and Jamaat Islami (JI) alleged that the March by-election in Magura -2 constituency had not been free, fair and clean due to the BNP government’s interference and use of government machinery to win the seat. The Magura -2 seat, vacated due to a death, had been occupied by the AL for the last several terms and its loss to the BNP led to complains of large scale vote rigging. Several media reports also noted unfairness and some observers thought that the BNP was trying to regain the image lost in the mayoral election just a few weeks earlier. The opposition parties complained that there can not be free and fair elections under a BNP government and declared that they would not participate in any election except under a caretaker regime.’ The issue, of caretaker government aroused a national intellectual debate. The opposition parties pressured the government by calling nationwide strikes and in 1991 after the formation of parliament a “bill for neutral caretaker government,” for holding free, fair and impartial election future, was placed in the second session of the 5th parliament on behalf of Jamat-e-islami. But the ruling party did not allow the bill to be moved in the house. Then in September 1993 Awami league and Jatiya party deposited two separate bills for neutral care-taker government in the secretariat of the parliament for introducing the same in the house of the nation. But the said two bills were never allowed to come to the house. Awami league proposed for amendment of article 56 and in place of clause 4 of art. 56 a clause stating for the period between and after the dissolution of Parliament and until the declaration of the result of the national election, the president of the republic shall invite the chief justice of Bangladesh to form the interim care-taker government. Awami league also proposed for insertion of three more clauses e.g.-

01. The Chief Justice shall not be a candidate in the National election. The Chief Justice shall form a small Advisory Council with neutral persons.

02. The Care-Taker Government shall hand over power to the newly elected Government as soon as they take oath of office.

03. The duties performed by the Chief Justice as head of the Caretaker Government shall be deemed to have been done in addition to his own duties and there will be no impediment on the way for the Chief Justice to return to his own original post and to discharge his duties as Chief Justice after handing over the power of interim Care-Taker Government.

Jatiya Party had proposed for amendment of Art. 123 of the Constitution. J. P. proposed for addition of a few more clauses after clause 4 of Art. 123. It was proposed that on the date of declaration of the date of election the Prime Minister should resign and the President to his satisfaction would appoint a Prime Minister for interim period and the said Prime Minister would form an interim Care-Taker Government as successor to the outgoing Government.

3.3 Formation

According to Article 58 (C) of the constitution, the Non-party Caretaker Govt. shall consist of the chief Adviser at its head & not more that ten other Advisers, all of whom shall be appointed by the President.

The Chief Adviser & other Advisers shall be appointed within fifteen days after Parliament is dissolved & the chief Adviser is appointed on that day.

The President shall appoint as chief Adviser who among the retired chief Justices of Bangladesh & who is qualified to be appointed as an Adviser.

If no retired Chief Justice is available, the President shall appoint as chief Adviser the person who among the retired Judges of the Appellate Division retired last & who is qualified that post.

If no retired Judge of the Appellate Division, the President shall appoint the chief adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers.

If the provisions of clause (3), (4) & (5) cannot be given effect to the President shall assume the functions to the chief Adviser of the Non-party Caretaker Govt. The President shall appoint Advisers from among the persons who are

• Qualified for election as member of Parliament.
• Not members of any Political Party.
• Have agreed in writing not to be, candidates for the ensuing election of the member of Parliament.
• Not over seventy two years of age.
• The advisers shall be appointed by the President on the advice of chief Adviser.

The chief adviser may resign his office by writing under his hand addressed to the President.

The Chief adviser shall cease to be chief adviser if he is disqualified to be appointed his post.

The chief advisor shall be entitled to the remuneration & adviser shall have the status & shall be entitled to the remuneration & privileges, of a Minister.<href=”#_ftn7″ name=”_ftnref7″ title=””>[7]

3.4 Power of Function:

According to article 58 (D) of the construction, The non-party Caretaker government shall discharge its function 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 it shall not make any policy decisions.

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

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

(i) If parliament is dissolved for any reason a caretaker government shall be appointed within 1 5 days after such dissolution.

(ii) If parliament stands dissolved, a caretaker government shall be appointed within 15 days after such dissolution. [(Article 58C(2)]

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

Under Article 58C (7) the President shall appoint Advisers from among the persons who are:

(a) qualified for election as members of parliament;

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

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

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

Who can be appointed as the Chief Adviser

Following persons having qualification of an Adviser may be appointed as Chief Adviser by the President: The person who among the retired Chief Justices of Bangladesh retired last.

01. 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.

02. 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.

03. 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.

04. 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.

05. 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 (Article 58C).

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.

Caretaker

Article 58D of the Constitution of Bangladesh provides about function of the caretaker government:

(i) The non-party caretaker government shall discharge its function as an interim government and shall carry on the routine function of such government with the aid and assistance of pet-sons in the services of the Republic; and, except in the case of necessity for the discharge of such functions it shall not make any policy decisions.

(ii) The non-party caretaker government shall give to the Election Commission all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially 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 3 months before an elected government takes over. In systems where the non-party caretaker government shall give to the election commission all possible aid and assistance that may be required for holding the general election of members of required for holding the general election of member of parliament peacefully, fairly and impartially.<href=”#_ftn8″ name=”_ftnref8″ title=””>[8]

4.1 Caretaker Govt. in UK, USA, India & Pakistan & International perspective :

Great Britain has a unitary from of Government and all power are center in the hands of the Central Government. The English Constitution is partly written and partly unwritten and the unwritten part is more important than the written part. It can be amended without much difficulty. In England they have a parliamentary form of government which means that the executive is responsible to the legislature. The Ministry remains in office so long as it enjoys the confidence of the House of Commons and it much resign as soon as it loses the confidence of the House of Commons.”

In the United States they have a federal form of Government in which authority is divided between the Federal Government and the States. In the United States, the Supreme Court can declare any low ultra vires. The person who is elected as President holds his office for 4 years and no adverse vote in the Congress can force him to resign. Neither the President nor the members of his Cabinet sit in the Congress and hence are not accountable to it.

The Constitution establishes as democratic set-up in the country. The Legislatures of the States and the Parliament of India are both elected. Provision is made for elections at regular intervals. The people are given the opportunity to choose their masters after regular intervals. The minister are responsible to the Legislatures and through them to the people. The supreme Court in Shamsher Singh v. State of Punjab.

In the United Slates they have a federal form of Government in which authority is divided between the Federal Government and the States. In the United States, the Supreme Court can declare any low ultra vires. The person who is elected as President holds his office for 4 years and no adverse vote in the Congress can force him to resign. Neither the President nor the members of his Cabinet sit in the Congress and hence are not accountable to it.

The Constitution establishes as democratic set-up in the country. The Legislatures of the States and the Parliament of India are both elected. Provision is made for elections at regular intervals. The people are given the opportunity to choose their masters after regular intervals. The minister are responsible to the Legislatures and through them to the people.

Caretaker Govt. and political Govt./ Elected Government

The Election Commission which is the fourth organ of the state as envisaged in the Constitution is a constitutionally independent body to ,Control and conduct election process. Administering election process 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:

(i) The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law [Article 118(4)].

(ii) An Election Commissioner shall not be removed from Ilk office except in like manner and on the like grounds as a Judge of the Suprenv Court [Article 118(5)].

(iii) 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 (Article 120).

(iv) 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 (Article 119).

(v) It shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions (Article 126).

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. 1 Under section 39 of the Representation of the People Order, 1972 the principal function of pronouncing election results of parliamentary election is done by the Returning Officers 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 punish him.

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.

The Election Commission which is the fourth organ of the state as envisaged in the Constitution is a constitutionally independent body to control and conduct election process. Administering election process 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:

(a) The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law [Article 118(4)].

(b) 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 [Article 118(5)].

(c) 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 (Article 120).

(d) 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 (Article 119).

(e) It shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions (Article 126).

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 Ministers 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 parliamentary

Election is done by the Returning Officers 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 punish him.

Fourtyly, 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 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. In most 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 24th November, 1995, 194 election petitions were filed out of which only 26 petitions were decided and that too very lately.

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 Election Commission. The Commission is engaged with abnormal load of 50 thousands elective offices 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.

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.

Election Commission’ has not been given any independent power 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 Officers 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 care take 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 power 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.

5.1 Caretaker Governments

5.2 Caretaker Government, 1990

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.

5.3 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, aw ami

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 visualized 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 materialize 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 formalizing 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.

5.4 Caretaker government of 2001

2001 Following are 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.

5.5 Caretaker Government of 2006-08

The 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 proceeded the llth 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.

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.

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. It should be noted that almost all of the nation’s television channels are owned by members from one of the two major parties.

An election was scheduled for the end of 2006; however it did not take place. The caretaker government was accused of BNP bias by Hasina and her coalition, who fomented nationwide protests and shutdowns. In January 2007, the head of the caretaker government stepped down, many believe under pressure from the military.

Fakhruddin Ahmed, former World Bank economist, was selected to replace him and has committed himself to rooting out corruption and preparing a better voter list. Emergency law was declared and a massive campaign to crack down on corruption is underway. By July 2007 some 200,000 people had been arrested. The government says it will hold elections before the end of 2008.

In April, Ahmed’s administration attempted to reform the political parties by exiling Hasina and Zia, but they backed down amid domestic and international protestations. Hasina, who had been visiting her children in the US, was allowed to return but she faced serious charges, including involvement in the assassination of four political rivals. In July, she was taken into custody after two businessmen testified that she had extorted 80 million taka (US$1.16 million) from them.¹¹²¹ This provoked angry protests from her supporters; even her bitter rival Khalida Zia, as well as six British MPs and MEPs, called for her release. Khaleda herself faces charges of tax evasion.

Chief Advisers since 1991

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

5.5.1 Biased Caretaker Government Brings Bangladesh on the Verge of Constitutional Crisis

After the end of five year term of the Khaleda Zia government in Bangladesh the country was supposed to prepare for the elections under a caretaker government. But the deliberate attempt of the immediate past government to manipulate the caretaker government, Election Commission, voter list and the administration has created a politically volatile situation in Bangladesh. Despite all this, for a while, it looked like that both the leading parties BNP and the Awami League would be able to tie over these difficulties. Unfortunately, so far this has not happened. The Bangladesh president who also doubles up as the chief advisor to the caretaker government reneged on the compromise deal which he had offered to the opposition alliance demanding electoral reforms. The president is now acting in a manner which shows that he has taken charge of the Caretaker Government (CTG) to implement the agenda of his political masters from the BNP and Jamaat. Probably, with this aim he has also called out army on the pretext of maintaining law and order. Though president is once again willing to negotiate with the 14-party opposition alliance, his actions are hardly above board.

Bangladesh constitution stipulates that election for the new government should be completed within three months after the end of the tenure of earlier government. These elections are to be conducted under the supervision of a neutral Caretaker Government. As of now, it looks highly unlikely that the elections in Bangladesh would be held on the schedule announced earlier. This situation might lead to a constitutional crisis in the country.

The opposition in Bangladesh had sensed much earlier, the intention of Khaleda Zia government to manipulate the system prescribed by the constitution. The government was making changes in several laws so that its chosen persons could take charge of these bodies. To nullify this game plan of BNP and Jamaat, the opposition groups have been demanding electoral reforms. As expected these demands were promptly rejected by the Khaleda Zia government.

What was worse, making a mockery of Bangladesh constitution, Khaleda Zia government handed over power to the president after making him the chief advisor of the CTG. The constitution provides several alternatives before the president assumes this charge. The present president, lajuddin Ahmed has been elected by the BNP and Jamaat. Hence, his neutrality as chief advisor to the CTG was always in doubt election schedule hurriedly and addressed the nation, keeping all the advisers in the dark about those. Such actions triggered a wave of controversy and deepened the political stalemate.

As the advisors were suggested by various political groups on the request of the president, some of them tried to sincerely work for the holding of free and fair elections. The council of advisers in a last ditch effort to resolve the political crisis prepared a package of proposals after a series of hectic meetings between the advisers and the two major political alliances. The proposals include reconstitution of the EC by sending election commissioners SM Zakaria and Modabbir Hossain Chowdhury on leave and appointing new election commissioners, transfer of secretaries, rescheduling of the announced election schedule and correction of errors of the updated voter list.

The package proposal gave hope to the people of an amicable resolution of the dispute as the BNP also agreed with it and the Awami League led 14-party started moving towards election, shunning street agitation.

Unfortunately, all this effort was wasted when the BNP-led four-party alliance opposed sending of Zakaria on leave. Similarly, president also became adamantly opposed to steps to make Zakaria take time off work. President, being a BNP man could not have been expected to go against what the party was saying. President under pressure from the BNP reneged from implementing the package deal. This forced Awami League to reconsider its earlier decision of participating in the elections.

The advisers however kept continuing their effort to reach an amicable solution to the issue of recasting the EC through further negotiation with the political parties. But the discussions among the advisers to implement the package proposals fully virtually fizzled out on December 9, when the president decided on his own to deploy the armed forces, ignoring strong objections from all the ten advisors.

This was one more unilateral, controversial decision of the president. He had called out the army 44 days before the election presumably to assist the civilian administration. The army in Bangladesh has a dubious record in maintaining the law and order. Last time, army was called out in 2002 as part of the ‘Operation Clean Heart”. In this operation, at least 50 people.

6. Evaluation of the 13th Amendment

In the constitutional development of Bangladesh the 13th Amendment of the constitution may be sala 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 to the people” becomes a mere farce. More the election process will be free and fair, more the people will see their voting right, in other words, right to elect representatives meaningful. The most important positive merit of the 13th Amendment is that it has paved the way for making the general elections free and fair, particularly free from government influence. Secondly, it has been a common trend in the politics of almost all developing countries that during the election period the party in power makes the worst abuse of public purse and properties to get the victory in their favour. This manipulation in the election process virtually creates an insurmountable stumbling block to the development . of some important democratic institutions like the Election Commission, voting right, press, media and political party etc. 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, coining to power every government from now on Mill have to think that once “parliament is dissolved or its term is ended, it Mill automatically find itself out of the power and then the public Will have the fullest opportunity and atmosphere to exercise their right to elect representatives and of the government. On the other hand, no government will be in a position to think for manipulating in the election process. There is therefore, possibility that the government will now be more responsive than in the past.<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]

Fifthly, to get redress of violation of election laws and irregularities there is 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. In most 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 24th 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:

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 Election Commission. The Commission is engaged with abnormal load of 50 thousands elective offices 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.<href=”#_ftn10″ name=”_ftnref10″ title=””>[10]

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. We will see later in this chapter that the present caretaker government backed by military has taken up steps to fulfill these lacunae in law.

W?’o^\

l.The executive power of the Republic rests with the Chief Adviser and his Advisory Council. It is describe that the administration of the defence service should come within the preview of the CTG and not on the President loan.

2.The President of Bangladesh is not elected on a bipartisan or consensus basis among political parties represented in parliament. The ruling party nominates the President, who is elected by members of parliaments.

3.1n 2001 the Chief Adviser, after approval of the council of advisers ,wanted to amend the penal code (Amendment) Ordinance but the President did not agree.

4.1t is also suggested that it has not been prudent to involve retired chief justice to be eligible

for holding the post of the Chief Adviser which is an executive post. It is counter to the sprit

of the doctrine of separation of powers.

S.There have not been any criteria enumerated the provision for the president to appoint a

citizen to hold the position of the Chief Adviser, if he failed to appoint any retired chief

justice or judge if the Appellate Division of the Supreme Court.

6.The phrase “noretired chief justice is available” employed in Article 58c(4) lacks clarity

and is confusing. The phrase is open-ended and therefore has been interpreted differently.

7.The powers of the chief adviser have not been spelt out clearly in relation to what the chief adviser can do, or cannot do, without the advice of the advisers. The absence of such provision has led to confusion as to what “collective responsibility” means under Article 58b(2) of the Constitution.

On January 7, the 18- party Opposition alliance led by Awami League (AL) decided to boycott the elections. This isolated BNP and undermined the legitimacy of the ninth parliamentary election. Large scale violence erupted across the country, forcing President lajuddin to impose emergency on January 11 and resign from the post of Chief Advisor of the Caretaker government. Thus, a new chapter was added to Bangladesh’s tumultuous history on 1/11, as the event is popularly referred to.

On January 12, 2007, Dr.Fakruddin Ahmed, renowned economist and former Bangladesh Bank Governor, was appointed as the Chief Advisor of the military-backed caretaker government. Although people were not overjoyed by the move, it brought a sense of relief from the continuing violence.

Dr. Fakhruddin Ahmed’s government is the country’s second caretaker government since October 2006. This government enjoys the mandate of the Bangladesh Army. The main objective of the government as declared by Fakruddin Ahmed (on January 11, 2008) is to hold free, fair and credible election.

The Constitutional validity of the government, however, is questionable. As per Bangladesh’s Constitution, “a Caretaker Government should have been constituted within 15 days of the dissolution of the Jatiya Sangsad and should be in a position to hand over powers to a duly constituted popular government within 90 days after the dissolution of the previous parliament.”2. Hence, already, this government has completed the stipulated time limit that qualifies itself to be a caretaker government. However, observers of Bangladesh’s politics suggest that since the main objective of this government is to hold election, therefore, it can be called a caretaker government. This is one of the distinctive features of this government. Unlike previous such caretaker regimes, the present government’s administrative and development initiatives also show its failure to control the prices which affected the common man the most. Inflation could become a major issue in the elections.

The government remained in the shadow of the Army Though the caretaker government was at pains to give the impressing on that it remained free of the Army, it was Army Chief Moeen Ahmed who is ultimately calling the shot s, Chief Advisor Fakhruddin remained a puppet of the Army. In fact, Army’s dominance in the present government has raised concern about the prospect of democracy in the country. The government was heavily criticized for sending intelligence officials to the house of the professors who were arrested in August 2007. Though the Army Chief had declared that he was not keen on grabbing power, it has been met widespread skepticism. People fear that the Army might just stay back in the saddle and delay the restoration of democracy. The caretaker government enjoyed support and recognition from major powers. In fact, envoys of the United States and Great Britain played influential role in 1/11. However, no major policy change was noticed in the last one year. It received generous support and aids from the international community to deal with two