CARETAKER GOVERNMENT OF BANGLADESH | The Lawyers & Jurists

The Caretaker Government of Bangladesh (Bengali: বাংলাদেশের তত্ত্বাবধায়ক সরকার) was a form of government in which Bangladesh used to be ruled by a selected government for an interim period during the transition from one elected government to another, after the completion of tenure of the former, during the period between 1996 and 2008. The outgoing elected government used to hand over its power to the nonelected nonpartisan caretaker government (CTG).

Top members of the caretaker government did not represent any political party; nor were they allowed to contest the elections. The main objective of the Caretaker Government (CTG) was to create a level playing field environment in which an election could be held in a free and fair manner without any political influence by the outgoing government.

It was not empowered to take any policy decisions unless it was necessary. The head of the Caretaker Government (CTG) was called the Chief Adviser (in place of Prime Minister of Bangladesh) and was selected by the President of Bangladesh. The Chief Adviser selected the other advisers. The top positions of the administration were generally distributed among the advisers. The Chief Adviser and the other advisers were committed for their activities to the President of Bangladesh.

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 organising general polls has been observed.

Caretaker government of 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.

Caretaker government of 1996 In 1990 the demand for caretaker government was raised by the mainstream opposition political parties with the immediate objective of removing Ershad government from power and restoring democracy through fair polls. Thus any future necessity for such caretaker administration during elections was not considered by the Joint Declaration of the opposition. Although there was a proposal from the left parties for conducting subsequent three elections under a caretaker government, this was not supported by the two major parties, Awami League and Bangladesh Nationalist Party (BNP).

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

At the initial phase of their movement, opposition parties did not have unanimity with regard to the framework of the proposed caretaker government. This was visualised by three separate bills submitted by the Jamaat-e-Islami Bangladesh, Awami League and Jatiya Party to the parliamentary secretariat in 1991, October 1993 and mid November 1993 respectively. The essence of these bills was more or less similar, but differed on selection of the head of the caretaker government. While Awami League was in favour of appointing the Chief Justice as the head of the interim government, Jatiya Party proposed for selecting a neutral person as the head of the caretaker government, and Jamaat-e-Islami demanded for forming an advisory council headed by a neutral person to be appointed by the President. These bills, however, were not placed in the Jatiya Sangsad because of opposition boycott of the Sangsad and government’s reluctance to consider the case. This made the three major opposition parties to come closer and materialise their caretaker demand through agitation and hartals. To press the ruling party, they went to the extent of submitting en masse resignation of 147 opposition parliamentarians 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 Sangsad there will be an 11-member non-party caretaker government headed by the Chief Adviser; (b) the caretaker government will be collectively responsible to the President; (c) the Chief Adviser will be appointed by the head of the state while other ten Advisers will be selected as per advice of the Chief Adviser; (d) the Chief Adviser will hold the status of Prime Minister while an Adviser will enjoy the status of a minister; (e) the non-party caretaker government will discharge its functions as an interim government and will carry on routine jobs, except in the case of necessity it will not make any policy decisions; (f) the caretaker government will assist the Election Commission to hold general polls impartially, fairly and peacefully; (g) this caretaker government will be dissolved on the date a new Prime Minister assumes his office.

After formalising the measures for caretaker government and in the midst of massive opposition agitation, the controversial Sixth Jatiya Sangsad was dissolved on 30 March 1996. Subsequently, a caretaker government was formed under the Thirteenth Amendment of the Constitution, 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 govrnment.

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

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

Caretaker government of 2006-7 After the completion of the tenure of the BNP government in October 2006 there was a great disagreement over the formation of caretaker government, and violence engulfed the country including the capital city, Dhaka. In such volatile situation the last retired chief justice declared his unwillingness to become the chief adviser of the next caretaker government. Subsequently, the President of the Republic, Professor Dr. Iajuddin Ahmed himself took over the charge of the chief adviser and constituted the council of advisers. The date of the ninth parliamentary elections was fixed on 22nd January, 2007. However, apprehensions and doubts on the holding of free fair polls continued unabated, and during this time a dialogue on electoral reforms between the two major contending political parties, BNP and Awami League, failed which led to massive violence and clash all over the country. Faced with such grave crisis, President Iajuddin Ahmed declared a state of emergency on 1 January 2007 and the proposed elections were cancelled. He thus stepped down from the post of chief adviser, and another caretaker government led by Dr. Fakhruddin Ahmed was formed. The new caretaker government declared a road map for holding the above polls by December 2008 and embarked upon a number of reform measures. Ultimately, on 29 December 2008 the ninth parliamentary elections were held and the caretaker government of Dr. Fakhruddin Ahmed continued in office till 3 January 2009 when the grand alliance led by Sheikh Hasina assumed the state power and formed the cabinet. [Al Masud Hasanuzzaman]

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 governments 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 The Caretaker Government in Bangladesh

The idea of interim or caretaker government assigned in between two elected governments, an unusual institution in Bangladesh, came into being first and for one

term in 1991 through the 11th amendment to the constitution. The constitution was amended again in 1996 (13th) to set this institution for an indefinite period to run the State for three months in between two governments and assist in organizing “free and fair” elections for the contesting political parties. This is a unique situation in Bangladeshi politics, where the political parties that rule the country have agreed that under their rule elections cannot be organized in a “free and fair” manner. This makes the caretaker government an important beat for reporting during its tenure .

In Australia; the caretaker convention is that the Government does not do anything odd, unusual, or out of the ordinary during an election period in relation to governance. In most of these convention instances they remain valid only as long as someone doesn’t break them.

The Non-party Caretaker Government is headed by a Chief Advisor who adopts the role of Prime Minister and advises the President as head of the Executive. The Chief Advisor and up to ten other non-party advisors comprise a citizens executive cabinet and are appointed by the President.

The Chief Advisor is the last retired Chief Justice. The other advisors cannot be members of parliament, cannot be running for election, cannot be members of a party and must be under seventy-two years of age. This mixes community specialists with a judicial specialist.

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

Like the caretaker conventions in Australia which implies no policy decisions will be made by an interim government, the Bangladesh constitution entrenches this requirement and the Non-party Caretaker Government is excluded from making policy.

The first three interim and caretaker governments were instituted without much hurdle under the guidance of the constitution. But in 2006 serious concern arose during the

time of choosing the chief of the caretaker government. The choice of the BNP-former

Chief Justice KM Hasan-was unacceptable to the 14-party alliance led by the

Bangladesh Awami League. The main allegation of the 14-party alliance was that the 4-

party alliance government increased the retirement age of the Supreme Court Judges from 65 to 67 Years (through the 14th amendment to the constitution) to have Justice KM Hasan, once a member of BNP, as the chief of the caretaker government. The opposition to Justice KM Hasan’s appointment as the chief of the caretaker government was so intense that he ultimately stepped aside and announced his unwillingness to become the chief. All that happened around the appointment of the chief of the caretaker government became very important for the media to attend and to report. All these incidents are also related to the 14l amendment to the constitution and politics beyond the election season. A journalist engaged in election reporting is required to check the containments in the 11th, 13th and 14th amendments to the constitution as regards the caretaker government. Then there are many other aspects during the tenure of the caretaker government to seriously attend-appointment of other advisors, actions takes by the caretaker government, how it assists or guides the election Commission,etc.

Chapter-II

2.00 Caretaker Government

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 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 governor wish to run for the seat themselves in the 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 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 resign 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 there 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 judge rules the country for 3 months before an elected government takes over. In systems where coalition governments are frequent a caretaker government may be installed temporarily while negotiations to form a new coalition take place. This usually occurs either immediately after an election in which there is no clear victor or if one coalition government collapses and a new one must be negotiated.

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

2.02 What Is Caretaker Government?

When Parliament dissolved on Thursday, 11 November 1999, all Members of the DeWine Rakyat would have ceased to receive their allowance as from that day onwards. This is a basic principle of the Parliamentary System. In this connection, it has to be pointed out that with the dissolution of Parliament, the status and function of the government also changes accordingly.

From 12 November, the government becomes a caretaker government with caretaker functions.A caretaker government in a Parliamentary democracy merely performs the rudimentary duties of the state. Apart from maintaining law and order, it ensures that government machinery continues to function so that the day-to-day task of administration can be carried out.

From a moral standpoint, a caretaker government cannot initiate new programms or launch new projects in the name of the government. This is an unwritten role of electoral competition in a Parliamentary democracy. For the party that acts as the caretaker government is also a participant in the election. If it transgresses its caretaker functions by using the authority that a government enjoys hi ordinary circumstances, it would have an unfair advantage over its other competitors in the election.

In a parliamentary system, a caretaker or interim government administers the state after the outgoing government is dissolved and before a new one can be formed following a general election.

The term “caretaker government” is used in Bangladesh. Ahead of the 2006 general election, violent clashes erupted over the outgoing government’s choice to head the caretaker government. The opposition accused the ruling parties of attempting to rig the poll.

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 an a new government is formed .This type of caretaker government is adopted in Bangladesh where an advisor council led by the former chief judge rules the country for three months before an elected governments takes over .In systems where coalition governments are frequent a caretaker government may be installed temporarily while negotiations to form a new coalition take place .This usually occurs either immediately after an election in which there is no clear victor or if one coalition government collapses and a new one must be negotiated.

2.03 History of Caretaker Government of Bangladesh

‘The caretaker conventions in Australia which implies no policy decisions will be made by an interim government, the Bangladesh constitution entrenches this requirement and the Non-party Caretaker government is excluded from making policy.

Presumably, politically of Bangladesh did not honour the caretaker convention, and

unwilling to trust any party machine with the caretaker convention.

The first parliamentary election under the caretaker government was held in 1991 and its success in holding a free and fair election satisfied all the political parties, and the people in general, accepted the idea of such a system indicating that the future of the democratic government in Bangladesh depended partly on a neutral and non party caretaker government.

The first caretaker government, as can be seen, was based on the consensus of the political parties which were agitating against the Ershad government. Such consensus was possible because the political parties were united against there common enemy. But one incident and two years of political movement against the BNP government led to the constitutional amendment for the creation of a statutory caretaker government.

Caretaker government of 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 peoples movements which ultimately led to the emergency of sovereign Bangladesh in1971

Caretaker government of 1996 in 1990 the demand for caretaker government was raised by the mainstream opposition political parties with the immediate objective of removing Ershad government from power and restoring democracy through fair polls. Thus any future necessity for such caretaker administration during elections was not considered by the joint Declaration of the opposition. Although there was a proposal from the left parties for conducting subsequent three elections under a caretaker government, this was not supported by the two major parties, Awami league and Bangladesh National Party (BNP)

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

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 preceded 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

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
Profssor lajuddin Ahmad – was compelled to resign
Dr. Fakhruddin Ahmad – Election of 2008

2.04 History of world’s Non-Party care-taker government

The democracy of Ancient Greece was a nonpartisan, direct democracy where eligible citizens voted on laws themselves rather than electing representatives.

Historians have frequently interpreted Federalist No. 10 to imply that the Founding Fathers of the United States intended the government to be nonpartisan. James Madison defined a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” As political parties had interests which were adverse to the rights of citizens and to the general welfare of the nation, several Founding Fathers preferred a nonpartisan form of government.

The administration of George Washington and the first sessions of the US congress were nonpartisan. Factions within the early US government coalesced into the Federalist and Democratic-Republican parties. The Era of Good Feeling, when the Federalist party collapsed, leaving the Democratic-Republican party as the sole political faction, was the United States’ only experience with a single-party system.

The Non-Partisan League was an influential socialist political movement in the United States, especially in the Upper Midwest, particularly during the 1910s and 1920s. It also contributed much to the ideology of the former Progressive Party of Canada. It went into decline and merged with the Democratic Party of North Dakota in 1956. The Progressive Party of Canada and the United Farmers movement (which formed governments in the provinces of Alberta, Manitoba and Ontario) also acted on a similar philosophy. In the case of the United Farmers of Ontario while in power (1919-1923) the administration of Ernest Drury suffered lots of infighting as the result of conflicting views.

Because of their non-partisan ideology the Progressive Party of Canada refused to take the position of the official opposition after the election of 1921 when they came in second place. Four years later they lost that position and their rural supporters began to move to the Liberal Party and CCF. Eventually the Progressive Party of Canada and the United Farmers movement faded into obscurity with most of their members joining the Liberal Party of Canada and the democratic socialist, Co-operative Commonwealth Federation (CCF, or present day New Democratic Party).

The election for the 9th Parliament was held on December 29, 2008 in presence of thousands of outside observers. The caretaker government, which took power on January 11, 2007 through army backing, must be congratulated for a job well-done. This caretaker government had reformed the Election Commission, prepared an honest voters list, make ready the voters’ photo ID, and finally conduct a fair election. The electorates have given their verdict by casting their votes in a free and non-threatening environment. It is now up to the losing party or alliance of parties to gracefully accept the verdict of voters.

In other democracies around the world, the losing party is the first one to give the concession speech, which is usually short. The losing candidate or party offers the proverbial olive branch to the victorious candidate and then assures the winner his or her help to move forward the country in the right direction. This happened on November 3, 2008 in the U. S. Senator McCain did not wait for the last precinct to be reported. When he saw that Senator Obama has come out victorious in many states and had garnered over 50% of the electoral votes, Senator McCain thought it was appropriate for him to give that concession speech. He was gracious, polite, and his tone was conciliatory. In fact, he gave one of the best concession speeches in recent times.

CHAPTER – III

3.00 Theory of Neutral Ground – on Neutral Government

One of the more interesting constitutional innovations of recent times is the Bangladeshi Non-party caretaker government. This is covered in chapter IIA of the Bangladesh Constitution.

Bangladesh is a parliamentary system with a largely ceremonial President who is appointed by the Parliament. The Executive is embedded is the Legislative, similar to the Australian Westminster style systems. In Australia the caretaker convention is that the Government does not do anything odd, unusual, or out of the ordinary during an election period in relation to governance. In most of these convention instances they remain valid only as long as someone doesn’t break them.

For instance the convention prior to 1975 in Australian Federal parliament was that the States would appoint a Senator of the same party as an outgoing one. This did not happen twice in the run up to the Dismissal and soon after a constitutional amendment come down forcing this behavior. Presumably, a Bangladeshi government did not honor the caretaker convention, and the Bangladeshis, unwilling to trust any party machine with the caretaker convention, took over the running of government themselves during this period.

The Non-party Caretaker Government is headed by a Chief Advisor who adopts the role of Prime Minister and advises the President as head of the Executive.

The Chief Advisor and up to ten other non-party advisors comprise a citizens executive cabinet and are appointed by the President. –

The Chief Advisor is the last retired chief Justice. The other advisors cannot be members of parliament, cannot be running for election, cannot be members of a party and must be under seventy-two years of age. This mixes community specialists with a Judicial specialist.

The constitution grants the chief Advisor and Advisors the remuneration and status of the Prime Minister and Ministers respectively during this period. Like the caretaker conventions in Australia which implies no policy decisions will be made by an interim government, the Bangladesh constitution entrenches this requirement and the Non-party Caretaker Government is excluded from making policy.

3.01 On neutral ground

Bangladesh prepares for parliamentary elections under the charge of a non-party caretaker government.

With the completion of a full five-year term by Prime minister Sheikh Hasina’s Awami League government, the first-ever elected government in Bangladesh’s 30-years-old political history to record this achievement, a non-party caretaker government headed by former Chief Justice Latifur Rahman_was sworn in on July 15. As per the Constitution, Rahman will act as the Chief Adviser; he has nominated a 10-member council of advisers to run the country for the period until the general elections.

Former Prime Minister Sheikh Hasina in Parliament on July 10.

Her government is the first in the country to complete a full five-year term. It was the kind of constitutional transfer of power that Bangladesh, ruled successively by military and pseudo-democratic leaders, had never witnessed before. And, for the first time, the Seventh Jatiya Sangsad survived until the last day of its tenure, though its smooth functioning was obstructed, mainly by the long absence of members representing the main Opposition parties.

Justice Latifur Rahman’s assumption of power took place in accordance with the 13l Amendment to the Constitution. The Amendment was the outcome of a countrywide agitation in 1996, during Khaleda Zia’s tenure as Prime Minister, spearheaded by Sheikh Hasina, who was then in the Opposition. It provides for the constitutional arrangement whereby a non-party caretaker authority, headed by the immediate predecessor of the Chief Justice of the Supreme Court, will take over the reins of power as soon as the term of the elected government expires. The caretaker government’s job is to assist the Election Commission in holding free and fair elections.

Article 58 D of the Bangladesh Constitution says: “The non-party caretaker government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the republic; and, except in the case of necessity for the discharge of such functions it shall not make any policy decision.” The whole of Bangladesh seemed to welcome the transfer of power, and that was evident in the congratulatory messages received by the caretaker government. The majority of political leaders attended the swearing-in ceremony at Bangabhaban.

However, leaders of the four-party Opposition alliance, including Bangladesh Nationalist Party (BNP) chairperson Khaleda Zia, boycotted the ceremony. The boycott was on the plea that Sheikh Hasina had “pressured” the President, Justice Shahabuddin Ahmed, to delay the ceremony.

However, the BNP-Jamaat-led alliance swiftly congratulated the Chief Adviser and pledged to extend their full cooperation to him. Sheikh Hasina, who is also the president of the Awami League, congratulated the Chief Adviser and promised him full support. But she said the caretaker government should hold the polls within the stipulated 90-day time-frame.

President Shahabuddin Ahmad with Chief Justice Latifur Rahman who was sworn as Chief Adviser to the caretaker government on July 16.

There is great expectation that the administration of Justice Latifur Rahman, the third such in the country’s history, will be able to hold credible elections and aid the nation to make a success of its democracy. Latifur Rahman has earned a good image in the judiciary, and is considered neutral as far as politics is concerned.

Within an hour of his swearing-in, the caretaker government transferred 13 Secretaries appointed by the Awami League government. The transfers were mainly in the key Ministries of Home, Information and Foreign Affairs. The Principal Secretary and the Press Secretary to the outgoing Prime Minister were also transferred. The BNP-Jamaat-let coalition welcomed the action. The Awami League, shaken by the drastic action, was guarded in its response. It expressed shock over the way the transfers were made, within an hour of the Chief Adviser’s swearing-in, and before that of the Council of Advisers. Sheikh Hasina, in a meeting with Latifur Rahman, reminded him of his government’s constitutional mandate – that is, only to ensure free and fair elections, and not to undo or review the actions of any elected government. Non-political, “pro-liberation” groups reacted strongly and said that the caretaker government should keep in mind its constitutional jurisdiction.

Such a controversy over the very first action of the caretaker government was unexpected. The past two caretaker governments kept away from controversies. However, Barrister Syed Ishtiaque Ahmed, a respected constitutional expert and one of the leading members of Latifur Rahman’s Council of Advisers, defended the government action. Latifur Rahman, at a conference with editors of leading publications, explained that what his government had done was within its mandate.

The appointment of former Auditor and Comptroller General M. Hafizuddin Khan as one of the advisers was not to the liking of the outgoing government. The Awami League chief questioned the “legal and moral” authority of Syed Ishtiaque Ahmed to head the interim government’s team to review the political cases filed during the tenure of the Awami League government. “How can Barrister Ahmed review the cases when he himself was the lawyer of a BNP lawmaker who filed a writ petition against the Public Safety Act? She asked on July 23.

The leaders of the caretaker government were also criticized for not visiting, soon after their swearing-in, the national mausoleum in Savar to pay respects to the martyrs of the nation’s War of Liberation. The Chief Adviser and the Council of Advisers made the visit after three days. The interim administration also faced flak for stopping the broadcast of quotations from Sheikh Mujibur Rahman, “the Father of the Nation”, by the state-run Bangladesh Television (BTV) and Bangladesh Betar. The administration has issued a warning against damaging or destroying Mujib’s portraits, after newspapers reported that BNP and Jamaat-e-Islami activists damaged Mujib’s images and attacked the offices of the Awami League and its front organizations in many places.

The major political players are well aware of the limit to which they can criticize the government. Even if they feel aggrieved by any of its actions, they have to take it in their stride. They know that if the system of having a caretaker government to hold free and fair elections fails, there will be no alternative before the country.

The initial controversies notwithstanding, the caretaker government has given top priority to seizing illegal arms and arresting terrorists and their patrons in order to make the law and order situation congenial for peaceful elections. It is reported that Bangladesh has more than 3000 unauthorized small arms in circulation, mostly in the hands of terrorists, who are being hired by political parties. A countrywide drive has begun to round up the terrorists and seize their arms.

By all initial indications, Latifur Rahman’s stint will be different from that of his two predecessors – President Justice Shahabuddin Ahmed in 1990 and Justice Habibur Rahman 1996. The challenges before the third caretaker government are much greater, and if it succeeds -probably it will – the credit will be of a much higher degree.

Justice Latifur Rahman has hinted that he will arrange a meeting between Sheikh Hasina and Khaleda Zia, the two main contenders for power, in an effort to make his job easier.

BNP leader Khaleda Zia. Her party hopes to win a majority in the next Parliament. Despite her initial criticism, Sheikh Hasina felt that the caretaker government – she had insisted that the concept be included in the Constitution – should not be embarrassed. She, however, said that the caretaker authority should not consider the elected government of the immediate past as “an opponent”.

In a dramatic development on the evening of July 23, Khaleda Zia led a five-member delegation to the Chief Adviser. After an hour-long meeting with him, Khaleda Zia told journalists that she had expressed her “dissatisfaction” over the performance of the administration, which she said had “failed to maintain neutrality”. “Awami League people are being put at all places,” she alleged. She threatened to announce certain “programmes” if the alliance’s charter of demands were not met immediately.

It is certain that the coming round of elections will be a fiercely fought one. The battle lines have been drawn. The Awami League, which will go it alone, believes that it will win with a comfortable majority. In support of this confidence, it cites the “massive infrastructural development” its government has carried out, the achievement of “surplus food production from a situation of deficit”, and the government’s “laudable disaster management”, “commendable women’s empowerment”, and achievements in poverty alleviation and on the foreign relations front, including relations with India. Its government, it says, made “immense successes” in the resolution of the decade-old Chittagong Hill Tracts (CHT) insurgency and in the signing of the 30-year Ganga water sharing treaty with India.

The BNP-Jamaat coalition has claimed that it will win a “two-thirds majority”. Its confidence is based on the argument that the Awami League stands “discredited” after its “five years of misrule”, for “pursuing pro-Indian and anti-Islamic policies”, “plundering the national wealth”, “rampant corruption” and “politicization at all levels”. One of the major charges leveled by the coalition against the Sheikh Hasina government is that its tenure witnessed “the worst forms of terrorism”, which involved the ruling party’s musclemen. Incidentally, the caretaker government, in its anti-terrorism drive, has arrested the son of a prominent Minister in the Sheikh Hasina Cabinet, besides several thousands of listed terrorists. It has seized large quantities of small arms.

It may be too early to predict the winner, but if one goes by the percentage of votes won by the BNP, the Jamaat-e-Islami and the small fundamentalist groups in the 1996 elections, the margin of victory will be very thin. But till date, the anti-Hasina forces have failed, despite repeated efforts, to create a sufficiently strong anti-incumbency wave to give themselves extra mileage in the race.

The fact that former President General H.M. Ershad dramatically quit the Khaleda Zia led alliance and formed the Islami Jatiy Oikya Front with the Pir of Charmunai Maulana Fazlul Karim, an orthodox sectarian leader, has weakened the BNP-led alliance to some extent. Ershad’s political compromise has gone to such an extent that he even agreed to the Pir’s diktat that his wife, Raushan Ershad, an ex-Member of Parliament and a senior leader of the Jatiya Party, must wear a veil if at all she comes to attend any of the front’s meetings. The Pir is against women’s leadership in politics.

The 11 -party Left-leaning alliance, in which the dominant forces are the Communist Party of Bangladesh (CPB), the Workers party, the Ganoforum led by Dr. Kamal Hossain, and the two factions of the Bangladesh Samajtantrik Dal (BSD), has decided to field candidates in 180 of the 300 constituencies. These parties had no seats in the last Parliament. Their long-cherished dream to become the “third alternative” in national politics has also not materialized. They seemed highly critical of the Awami League, but were neither soft towards the BNP – mainly because of the BNP’s alliance with the fundamentalist Jamaat-e-Islami. The candidates of the 11-party alliance, if fielded, are likely to cut into the votes of the Awami League.

Another tiny stream in politics is the rebel faction of Ershad’s Jatiya Party, which is now led by the Communications Minister in Sheikh Hasina’s Cabinet, Anwar Hossain. This faction, with 12 MPs in the just-dissolved Parliament, will fight the elections on its own. The selection of candidates have begun. The Awami League has finalized most of its nominees, even those for the prestigious seats in the Dhaka metropolis. The BNP-Jamaat-led alliance appears to have decided to delay the announcement of its list, may be for strategic reasons. It is likely that Khaleda Zia will announce the nominees only after the poll schedule is announced by the Election Commission.

3.02 Elections and Crisis of Confidence

The institution of election is held in high esteem in democracy. This is because it does not only uphold the freedom of the citizens to choose their leaders, but also creates genuineness of the government and thereby helps sustain stability in the political order. Democracy theorists regard election as a useful tool for legitimization of regimes and control mechanism, integration of social order, system capability, participatory behaviour, and political institutionalization. It is through the means of election, the politicians reassure their commitment to deal with the crisis involved in the process of national development. The essence of this commitment is that while the competing sides do not agree on different political issues, they keep consensus on fundamental matters of the state. This agreement establishes trust of the parties and people in the election process and a tradition where the ‘winning party’s forming the government and losing side’s accepting defeat’ gets its roots.

It is worth mentioning that elections have played a historical role in this country. During the days of united Pakistan, the elections of 1954 and 1970 were widely acclaimed as fair polls and they had significant impacts on the people’s political movements which ultimately led to the achievement of independent Bangladesh in 1971. But as observed, in the post-independence period, there had been a gradual alienation of the electorate from the election process. This was mainly because of the alleged electoral malpractices committed by the power holders. The situation further deteriorated since the assumption of state power by the politically ambitious military rulers. There were attempts to use elections as the instrument to legalize their political authority by creating a faced of democracy. Thus the whole election process ranging from nomination of candidates, scrutiny, campaigning, voting, and counting to declaration of results, was subjected to abuse of the self seeking quasi-democratic and autocratic regimes. During elections, the use of government machinery and violence were pervasive but the state controlled election Commission declared the fairness of the polls. As the election results were always a foregone conclusion, the consequences of the four parliamentary elections of 1973, 1979, 1986 and 1988, three presidential elections of 1978, 1981 and 1986, and two referendums of 1977 and 1985 did not prove instrumental in rendering positive effects on the political process. The nation, instead witnessed subsequent precipitation of political crises leading to prolonged instability.

3.03 Demand for Fair Polls and Caretaker Government of 1990

During the rule of General Ershad, the crisis of people’s confidence in the stage-managed election system culminated into an anti-autocracy movement led by the country’s major opposition political alliances. People’s aspiration for restoration of democracy through fair polls was ultimately transformed into a united struggle with a forceful demand for ‘neutral caretaker government’. It was known that the ‘caretaker’ demand was first raised by the fundamentalist Jamat-i-Islami in 1983 but it did not enlist any support during that time from the major parties including Awami League and BNP. Eventually ‘caretaker government’ became a common demand of the combined opposition in 1990. as such, the Joint Declaration of Three Alliances included the following specific points on ‘neutral caretaker government’

“We the 15-Party, the 7-Party and the 5-Party alliance, shall participate only in an election to a sovereign parliament and only when such an election is held under a non-partisan, neutral government.Ershad and his government will be forced to resign.An interim caretaker government will be formed the prime responsibility of that government …will be to ensure holding of a free and fair election to a sovereign parliament within three months…. The head of the caretaker government will be non-partisan and neutral and will not participate in presidential, vice-presidential or parliamentary elections.No minister or his caretaker government will likewise participate in elections….The caretaker government will only run the routine administration and will reconstitute the Election Commission…..With a view to holding free and fair elections…… The interim, caretaker government wills handover power to the sovereign parliament, elected through free and fair elections”

The above opposition formula was soon translated into reality through the ousting of Ershad regime and handing over power to Chief Justice Shahabuddin Ahmed. It is noteworthy that the neutral caretaker government of Justice Ahmed was formed without prior amendment to the Constitution. It was understandable that there was indeed a difficulty in convening the Parliament on account of shortage of time and hiding of most MPs belonging to Jatiys Party. While questioning the legality of the new government, Ahmed made the following observation, “a question arose as to whether, having not resigned from his post of Chief Justice which was an office of profit, Shahabuddin could assume the political office of the Presidency and return to the post of the Chief Justice again after completing his term as Acting President. The answer was that the new Parliament would make the necessary provisions to cover such temporary illegality under the doctrine of ‘supreme necessity'”. Needless to mention, the caretaker government of Justice Shahabuddin Ahmed had the basis of Public support and hence the legality of its action was beyond question. All its activities were thus ratified subsequently by the popularly elected 5th Parliament in 1991.

3.04 Neutral Caretaker Government and Shahabuddin Syndrome

In a critical situation of the country, Justice Shahabuddin Ahmed took over the position

of Acting President and headed a much demanded neutral caretaker government. It was indeed greatly difficult for anybody to function under prevailing odds.

The system left by the autocratic rule was characterized by corruption, mismanagement and recklessness, and, in such a situation, restoring a congenial environment for organizing fair polls was not at all easy. Notwithstanding this baffling scenario, Justice Ahmed’s sincerity was all along observed. He steered the wheel of the state in a purely unbiased manner and left no scope to question his neutrality.

Although, Justice Shahabuddin Ahmed received necessary support from the major political alliances and parties, he had to intelligently balance the conflicting relationship between the two rivals, Awami League and BNP. He also got prepared to face other challenging forces including the supporters of the fallen autocrat both in Jatiys Party and in the armed forces. During his service as the head of a caretaker administration, necessary efforts were made to avoid any sort of dilatoriness in state management. His certain innovative moves like the formation of the Task Force to suggest remedies for the prevailing problems at various sectors, and improving the services of the judicial system, paved the way for streamlining the activities of the next government. Besides such actions, the major steps which were taken by Justice Ahmed for organizing free and fair elections have been discussed in the earlier chapter.

In our political history, as was observed, there was a time when whoever had held state power never left office willingly. Justice Shahabuddin Ahmed has been an exception in this regard. Unlike the previous rulers, his actions and words proved that he was an unavaricious person. He could linger his stay in office if he had wished so, but he set an example that he had no craving for state power. During his tenure as the head of the state as well as government, Justice Ahmed reportedly refused to accept any state benefit. He had all integrity in his own profession and thus, before accepting the Acting President ship, he made it conditional to return to his original position once his imposed task was completed.

As noted earlier, in the event of lack of agreement between the Treasury and the opposition bench in the 5lh Parliament, Justice Ahmed used his good office for the smooth passage of the Twelfth Amendment. Later on, his rejection of the offer of Presidentship did signify his magnanimity. It can be said that his timely and unbiased efforts, arbitration, mediation and dedication contributed significantly to organizing the widely acclaimed free and fair national election and subsequent transition to parliamentary democracy in Bangladesh.

Chapter-IV

4.00 Appointment and ambit of Caretaker Government

4.01 Appointment procedure

Caretaker Government is an interim government.It is body consist of II member of which one is chief Advisor and other are advisor.The constitutional reference to composition of caretaker government is Article 58C of Bangladesh constitution .For better understanding of the topics the original text of Art.58C are posted here.

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

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

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

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

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

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

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

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

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

(7) The President shall appoint Advisers from among the persons who are –

qualified for election as members of parliament;
not members of any political party or of any organization associated with or affiliated to any political party;
not, and have agreed in writing not to be, candidates for the ensuring election of members of parliament;
not over seventy-two years of age.

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

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

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

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

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

new parliament.

4.02 Is Advisor a baby seater ?

Caretaker government is a constitutional body designed and appointment to run.the country for a definite period .The panel of Advisors headed by chief Advisor are constrained by constitutional limitation to discharge its function .The position of caretaker government would be much clear before us if we compare it with a Baby seater .For clear understanding let an illustration be stated here .For example. A spouse is employee of a private company .They have a milkman children. During office hour they are to keep the baby to a profession Baby seater .The authority concern take care of the baby up to his betterment .But no crucial decision can the authority take to nourish the baby .In case of emergency the are to resort to parents ,as their authority subsist upto terms and condition .To this effect learned senior Advocate of Bangladesh supreme court Mr.Azmal Hossen QC opined in an interim taken by young Journalist Tanjim Al Islam that the caretaker government is nothing but a baby seater .He further added the role of caretaker government limited by constitution .The are to perform only routine function laid down by constitution .They can’t solve a fundamental question involving interest of states . I am also after observing all the legal provision found their in made my mind to proclaim the states of caretaker government all in to Baby Seater.

4.03 Function of Caretaker Government

Art. 58D. Functions of Non-Party Caretaker Government

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

(2) The Nonparty 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.

4.04 Ambit and rationality of Caretaker Government.

No doubt true the caretaker government plays primary and principal role to gift a constitutional government .The prime function of caretaker government is to arrange a free and fair election. The very ambit of caretaker government is to dispose some routine tasks. But a question now-a-days arise, is there any rational to have an interim government to hand over powers to newly selected one? proper democratic practice teaches us to no need of caretaker government to do the same. In satisfying the rationality political culture is vital one. In a democratic country like Bangladesh political stability hardly found. Though rules of business shows soft love to caretaker government constitutional limitation government final priority.

In the recent days there arising a question in he mind of think tasks of politics where the provision regarding CTG should further be sustained. Distinguished learners opted for continuing the provision while others are opposite to it.

For example Sr.Advocate of B.D Supreme Court Mahmud Islam opined that Martial law likely to come if the provision for CTG repealed. Barrister Aminur Islam has agreed with Islam. Taking into consideration the reality and political practice in BD,the provision of CTG required to be sustained in the constitution,to handle a proper handover a power, from one elected govt .to another.

Chapter –V

5.00 Comparative Study with Bangladesh regarding the practice of Caretaker Govt.

5.01 Caretaker Government in Bangladesh Perspective Background of the 13th Amendment

On the way to restoration of liberation from the bondage of military autocracy the historic 5th parliament election was a milestone which was held under the Acting President justice Sahabiddin Ahmed in 1991. An unprecedented degree of enthusiasm was shown by all quarters. The election was nationality and internationally recognized as free and fair. Whining majority seats in parliament the BNP formed government. But from the beginning of the BNP the opposition parties hi the parliament began to create pessure on the govt so that it include provision for Caretaker government in the constitution, hi 1993 first Jamat-i-Islam and the AL and JP submitted their respective Bills concerning Caretaker government. Every Bill contained the same object -to make general elections free and fair and to make the whole process of election free from the Govt. influence provision for Caretaker government should be introduced in the constitution. But this demand of the opposition parties was treated by the govt as unconstitutional and illegal. The Magura By election was the turning point for all the movement of Caretaker government. It was this Magura By election in which the govt Party BNP took resort to an unprecedented malpractice and rigging. This election manipulation of BNP govt as reported by most important dailies, defeated even the Ershads election manipulation in 1988 and it has got a title of Elections Magura’ in the election politics of Bangladesh. Before this Magura incident all the opposition parties made walkout from parliament hi protest of a statement made by information Minister Nazmul Huda Concerning Hebron killing issue of Israel. And they made commitment that they would not return to parliament if the information Minister did not expunge his statement. To this Boycotting of parliament Magura election malpractices provided an extra strength and now the opposition parties got their direct way of demanding that they would not go back to parliament till a caretaker government Bill was introduced in the House. The Government did not pay a heed to this demand. On 28l December, 1994 about 147 MPs resigned in protest. When the government proceeded to hold by-election in 142 vacant seats the political impasse took more outrageous condition leading to continuous country¬wide strike. On 24th November, 1995 the government dissolved the 5th parliament and the 6th Parliamentary Election was scheduled on 15th February, 1996. But since the government did not pay any heed to the demand of caretaker government by the opposition, all the oppsition parties boycotted election. The ruling party proceeded to contest the election with sudden hand-picked parties as the military director Ershad did. The announcement of the resut of the election added fuel to the fire-like opposition movement. All the opposition parties launched their country wide non-cooperation movement and demanded the fall of the government as well as the dissolution of 6 parliaments. The whole politico -economic condition of the country was leading to a complete civil was. Lastly finding no other the way out BNP government introduced the Caretaker Govt. Bill on 21st March at the first session of the 6th parliament. The bill was passed on 26the March. Then the 6th parliament after 7days of its life was dissolved on 30 March and Justice Habibur Rahaman was appointed as the chief Adviser of the Caretaker Govt. as envisaged in the 13th amendment of the constitution.

The 13th Amendment of the constitution

This amendment was passed with 268-0 votes on 26th March 1996 and it became law on 28th march. The Amendment added a new chapter (chapter IIA : Non-party Caretaker Govt.) in part IV of the constitution with 5 new Articles (5 8A -E). it is also Amendment Article 61,99,123,147 152 and the third schedule of the constitution. 58B. Non-Party Care-taker Government

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

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

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

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

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

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

(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:

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

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

(7)The President shall appoint Advisers from among the persons who are-

qualified for election as members of parliament;
not members of any political party or of any organization associated with or affiliated to any political party;
not, and have agreed in writing not to be, candidates for the ensuing election of members of parliament;
not over seventy-two years of age.

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

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

(7) 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.

(8) 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.

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

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

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

(2) The Non-Party Care-taker Government shall give to the Election Commission all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially.

58E. certain provisions of the Constitution to remain ineffective

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

5.02 Caretaker Government in Uk Perspective

In May 1945, following the defeat of Germany the coalition government broke up and Churchill formed a new administration, including Conservatives, Liberal Nationals and various non-party individuals who had been previously appointed to Ministerial posts. However, significantly, with the exception of the Earl of Rosebery there were no other Liberal Nationals in the Cabinet – excluding even the Lord Chancellor Lord Simon. This government nevertheless used the title National Government and could be seen as the heir to the 1930s governments, even though the personnel were very different. The government fought the 1945 general election as a National Government but lost.

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

CHAPTER-VI

6.00 Bangladesh Constitutional provision on Non-party Caretaker Government

6.01 Constitutional Provision in Bangladesh Constitution

Art. 58B. Non-Party Care-taker Government

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

(3) The executive power of the Republic shall, during the period mentioned in clause (1), be exercised, subject to the provisions of article 58D(1),in

accordance with this Constitution, by or on the authority of the Chief Adviser

and shall be exercised by him in accordance with the advice of the Non-Party Care-taker Government.

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

Art. 58E. Certain provisions of the Constitution to remain ineffective

Notwithstanding anything contained in articles 48(3), 141 A(l) ad HC(l)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 country signature shall be ineffective.

6.02 An Analysis of the Constitution Provisions

As stated before, the provisions for the caretaker government were included in the constitution as the Thirteenth Amendment. Articles 58B, 58C, 58D and 58E laid down the provisions of the caretaker government. Article 58B provides that a non-party neutral caretaker government would be appointed by the president within 15 days of the expiry of the term of the parliament. The Chief Adviser who will be the head of the caretaker government will be appointed from among the retired chief justices who retired last. If no person is found from among the retired chief justices or judges of the Appellate Division of the High Court, the president will assume the charge of the caretaker government. The Chief Adviser and his cabinet of 10 Advisers will remain in office till the constitution of the next parliament and the appointment of the prime minister after the election.

The 10 Advisers are appointed by the president on the recommendation of the Chief Adviser. To be appointed an Adviser, a person must not be a member of any political party, must not be a candidate for the ensuing election to parliament, and must not be over 72 years of age.As an interim regime, the caretaker government discharges “routine functions” with the assistance of the government officials. It is not empowered to take any “policy decisions except when it is necessary for the due discharge of its functions. It is the duty of the caretaker government to give the Election Commission all possible aid and assistance for holding the election of the members of parliament peacefully, fairly and impartially. The caretaker government must complete all the election procedures within 90 days of the expiry of the term of parliament.The rank of the Chief Adviser is that of the prime minister and the Advisers hold the rank of the ministers. They are collectively responsible to the president.Although, the Chief Adviser holds the rank of the prime minister, two of the important powers which were usually performed by the prime minister were not given to the Chief Adviser. According to the constitution, the president is the head of the armed forces, but he is to act according to the advice of the prime minister. Under the caretaker government, the military power would be exercised by the president without the advice from the Chief Adviser. This provision created a problem for the caretaker government as the deployment of the army during the election could only be done by the president. Also, the caretaker government could not deploy the army to recover the illegal arms which was necessary for peaceful election. When the president declares a state of emergency, he can cancel the fundamental rights of the people without the advice from the Chief Adviser.

CHAPTER – VII

7.00 Role of the Previous Non-Party Caretaker Governments in Bangladesh

A caretaker government was first introduced in 1990 when three party alliances jointly made a demand to appeal for it. In 2006, the system was activated for the fourth time. It was again activated on 11 January 2007, and the newly appointed government has been running the nation up to the date of 29 December, 2008. If we want to know about the history of caretaker government in Bangladesh at first we should divide the history in some parts for the reason of systematically analyzed. At the first part we should analyzed when caretaker government was first introduced.

7.01 The first Caretaker Governemnt of 1990

Bangladesh had two caretaker governments before the one appointed in 2001. The first caretaker government was appointed in 1990 following the resignation of Hussain Mohammad Ershad. The major political parties which had launched the agitation against the autocratic rule of Ershad did not any election under him and agreed to the formation of a non-party, neutral caretaker government.

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 was to 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.

The new government took office on December 7, 1990 and was headed by justice Shahabuddin Ahmed who was nominated by the 8-party, 7-party and 11-party alliances. Soon after assuming office, he addressed the secretaries to the government in the Cabinet room of the secretariat and promised to make all out efforts to hold a free and fair election for establishing a truly democratic government fulfilling the hopes and aspirations of the people. The caretaker government took several steps for this purpose.

First, it repealed the executive orders issued under the Press and Publications Act of 1973 and formed a 10 member committee headed by a Supreme Court judge with the representatives from the journalists, editors, owners of the newspapers, and Journalism Department of Dhaka University to examine the provisions of the Act.

Second, it made some changes in the Representation of the People Order 1972

for imposing stiffer punishment for election offences. To prevent vote buying and resorting to corruptions, strict laws were made to regulate the election expenses by increasing the terms of imprisonment and the amount of fines.

Third, the local governments – the Union Parishads and Paurashavas were given special responsibilities for maintaining peace during the polling time. Under Union Parishad and Paurashava (Special Responsibilities) Ordinance 1991, the government could dissolve any Union Parishad or Paurashava if they had failed to discharge their responsibilities of maintaining peace and discipline from the last day of the nomination to the next 7 days after the completion of the election. They were required to keep in touch with law enforcing agencies and report all the disturbances. Any local government that would fail in their duties would be dissolved.

Fourth, the government prohibited the use of all jeeps and cars of the Upazila Parishad for party election campaign. It instructed all the Deputy Commissioners of the districts to report to the government within 48 hours of the closing of the poll whether the union Parishads and the Paurashavas have carried out their responsibilities in maintaining law and order during the election.

Fifth, the heads of the local governments were ordered to maintain strict neutrality or face dismissal.

Sixth, the caretaker government made some new rules for the accuracy of the voting procedures. It introduced a new indelible ink which would be used on the hand of the voters so that they could not vote again, and designed a new rubber stamp to mark the ballot papers. To prevent the misuse of the ballot papers, the government decided not to print additional ballot papers. In addition to making new laws and introducing new procedures, the government launched an extensive voter education programs on the voting procedures which was needed because of the large illiterate voters.

To stop violence during the election, the government initiated a program of collecting illegal arms. On December 12, the government directed to surrender all illegal arms by December 26 and no action would be taken against those who would lay down their I arms by that date. After that date, the police would start to recover the illegal arms.

To make the Election Commission independent and strong, it was reorganisd by appointing three judges from the Supreme Court. Justice Mohammad Abdur Rouf was appointed Chief Election Commissioner and Justice Mesbahuddin Hossain and Justice Mayeenuddin Ahmed were appointed as Election Commissioners. By an ordinance -Election Officers (Special Rules) Ordinance 1990 all the persons engaged in the elections were placed under the control of the Election Commission from the date of their appointment to the date they would be released by it. Once appointed for the election work, they could not refuse to take the responsibility or express their inability. Any one who would intentionally fail to perform the election duty or would express inability or violate the election rules would be charged with misconduct, or his election rules would be charged with misconduct, or his service could be terminated.

7.02 The Second Caretaker Governemnt in 1996

Unlike the first caretaker government which was appointed on the basis of the consensus of the major political parties, the second caretaker government was appointed according to constitutional provision made by the Thirteenth Amendment. As soon as this amendment was passed, Khakeda Zia resigned from the position of Prime Minister, and President Abdur Rahman Biswas appointed Justice Habibur Rahman as the head of the caretaker government on March 30, 1996. A Council of 10 Advisers was also installed in office.

Soon after assuming the office, Justice, Justice Habibur Rahman addressed the nation | over Radio and Television and said that the maintenance of law and order was the precondition for holding the election peacefully and smoothly. He observed that the two-years1 of unsettled political situation posed a threat to the law and order in the country. He asked for the cooperation from all the political parties and assured the nation that he would not use Special Powers Act so long as the work of the government was made possible and sounded a note of caution that he would use it if necessary.

The Chief Adviser gave directives to the officials to discharge their responsibilities with neutrality saying that the government officials have no scope to express solidarity with any quarters. He warned the officials that he would not hesitate to take any stern action against those who would indulge in or allow wrong doings intentionally, illogically, or inspired by ill motives.

In an address to the Deputy Commissioners and Superintendents of Police, the Chief Adviser emphasized the need for freeing the society from terrorism with a view to holding a peaceful and impartial election.

The Election Commission Reorganized:

During the second caretaker government the Election Commission was reorganized and more power was given to it. Abu Hena who was a member of Planning Commission was appointed Chief Election Commissioner in place of Justice A.K.M. Sadeque who resigned because of demands made by some political parties, including the Jamaat-e-Islami to reorganize the Election Commission, Mohammad Fayezur Razzaq, Secretary to Ministry of Power, Energy and Mineral Resources was appointed as Secretary to the Election Commission Secretariat. The Election Commission was given additional power for conducting the election fairly and neutrally. Previously, the Presiding Officer was granted the power to stop the poll at any stage when he would confront with any problem. This power was transferred to the Election Commission. The Commission was also given the power to review the acceptance or rejection of the ballot papers by an election official. Furthermore, the Commission was authorized to form the Election Enquiry Committee for each district comprising of one working judge, one Senior Assistant Judge, or, one Assistant Judge of the respective district to investigate the pre¬election irregularities either on a petition by an aggrieved person or on its own cognizance and submit its report to the election commission. The Violators of the electoral laws could be fined up to taka 5,000.

Starting from April 17, 1996, the caretaker government began to transfer officials to make them neutral and reduce their influence in the election. It transferred 54 Secretaries, 69 Additional Secretaries, 43 Joint Secretaries and 76 Deputy Secretaries, At the field level, it transferred one Divisional Commissioner, 5 Deputy Commissioners, 22 Additional Commissioners and 90 Upazila Nirbahi Officers.

The Bangladesh Nationalist Party raised objections to the mass transfer of government officials. It complained that some officials were transferred within six months of their posting and others within one year of posting. It, however, held the position that only those officials who involved themselves with a particular political party should be transferred. The BNP also complained that the caretaker government was tilted to a certain camp.

7.03 The third Caretaker Government in 2001:

The terms of the 7th parliament and of the prime minister expired on July 12, 2001. According to the constitutional provisions, the Chief Adviser to the caretaker government should be appointed within 15 days of the expiry of the terms of the parliament and of the prime minister. President Shahabuddin Ahmed invited Justice Latifur Rahman, the last retiring Chief Justice of the Supreme court, to assume the charge of the caretaker government and on his acceptance, was appointed the Chief Adviser. The BNP boycotted the oath-taking ceremony because, it alleged, the president had fixed the date and time of oath-taking ceremony according to the wishes of the Awami League Chief Sheikh Hasina. The BNP had demanded that the caretaker government would take office immediately after the expiry of the term of parliament which was on July 12. But the Chief Adviser was appointed on July 15 giving two more days of political power to the Awami League. The party had also suggested that the oath-taking ceremony should be held at 12:30 P.M. as was originally planned, but the president rescheduled it at 7:30 P.M. as Sheikh Hasina had informed the president that she would join the ceremony after her public meeting at National Parade Ground. The original invitation to attend the ceremony bore the time 12:30 P.M. but it was crossed out and the new time 7:30 was written in its place. This incident created a deep concern in the mind of the BNP leaders who were already at daggers drawn with the Awami League. The party leaders said that they were displeased with the president and not with the Chief Adviser and would extend all cooperation to him. The next day, a council of 10 Advisers was sworn in.

Eight Parliamentary Election in 2001:

The eighth parliamentary election held on 1 October 2001 was unique in the electoral history of Bangladesh. The elections were held at the end of the full five-year term of the government of the Bangladesh Awami League (AL). Although the AL celebrated the completion of its term, political tension and violence was also mounting, and continued unabated throughout the campaign period.

The caretaker government took over on 15 July 2001. Former Chief Justice of the Supreme Court, Latifur Rahman headed the 11-member caretaker government. The main function of the caretaker government was to organize the elections within 90 days and ensure that the elections were free, fair and neutral. The caretaker government extensively exercised executive powers for conducting the elections.

The caretaker government reformed the electoral laws, reshuffled public officials, recovered illegal arms and made the Election Commission take certain necessary steps. However, the caretaker government’s efforts to recover arms and arrest the listed criminals were not very successful and violence, including killing, continued. From 15 July to 10 October at least 217 people were killed and 6686 were injured in 414 major election-related incidents across the country.

The pre-election violence and tension caused much apprehension about “free and fair” elections. However, as the elections approached the government engaged the military and almost all other security agencies to keep the law and order situation under control. Ultimately when the election took place as scheduled on 1 October 2001 everybody was taken a back at the peaceful atmosphere that prevailed. Some incidents, of violence occurred but they did not have any major impact on the elections. Compared to the pre¬election violence and tension. The law and order situation on the election-day was good and well under the control of the security personnel.

7.04 The Fourth Caretaker Government of 2006-08:

The President, lajuddin Ahmed, reconstituted the non-party caretaker government on Friday, January 12, 2007 by appointing Dr Fakhruddin Ahmed, a former central bank governor, as the new chief of the interim administration.

President lajuddin, who resigned on Thursday January 11, 2007 from the post of the chief adviser and promulgated a state of emergency throughout the country, administered the oath of office to Fakhruddin Ahmed at a ceremony at Bangabhaban, the presidential residence.

Fakhruddin Ahmed, a renowned economist and former governor of the central bank, was serving as managing director of the Bangladesh Palli Karma Sahayak Foundation, a public sector micro credit institution, before being made the chief adviser to the caretaker government. Khakeda Zia and the leaders of her Bangladesh Nationalist Party-led alliance abstained from attending Ahmed’s swearing in ceremony. Sheikh Hasina and the leaders of her Awami League-led alliance, attended the function.

The situation was just the opposite on October 29 last year, when lajuddin took over as the Chief Adviser. Khleda attended the swearing in ceremony and Hasina boycotted it. Former advisers, foreign diplomats stationed in Dhaka, senior civil and military bureaucrats, and a section of eminent citizens were present at the ceremony.

The cabinet secretary, AH Imam Majumber, conducted the oath taking ceremony at 7:00 pm.

But the president in his address to the nation, through which he declared a state of emergency on January 11, 2007 suspending fundamental rights, mentioned that a number of tasks needed to be completed for holding a free, fair and credible election and that it would take time.

The Election Commission, meanwhile, formally announced postponement of the January 22 general elections. They will now go for massive reconstitution of the judicial body and electoral laws as well and before holding the election, the EC sources said. With the swearing in the chief adviser, the authorities apparently relaxed emergency provisions, including restrictions on the print and electronic media.Private television channels were reportedly asked by the press Information Department on Thursday not to air news programmers, and they followed the instruction accordingly. The channels resumed news programmers on Friday, January 12.

The authorities also lifted the night-time curfew imposed for six hours everyday in Dhaka and other district towns for an indefinite period.

The police were seen announcing the lifting of curfew by loud hailers at different places in the city. The withdrawal of curfew eased tensions in the capital and other parts of the country.

The police and the elite Rapid Action Battalion launched a hunt for listed criminals, some businessmen and a section of politicians having criminal links.

In an announcement, the Awami League general secretary, Abdul Jalil, said that the AL-led alliance had called off all street protests. The alliance had earlier announced a series of agitation programmes, including transport blockades and general strikes to resist holding of the January 22 elections.Jalil refused to comment on the ‘promulgation of emergency’, but found the president quitting the office of the chief adviser a ‘people’s victory.

The BNP in a statement said that it believed the emergency was a temporary measure. The statement said the party hoped the interim government would do everything possible to hand over power to an elected government in the shortest possible time.

The left leaning political parties opposed emergency while major political parties refrained from making direct comments.

In another addition to the advisory council, Chief Adviser Dr. Fakhruddin Ahmed on January 21 appointed business leader Mahbub Jamil and former Secretary Manik Lal Samaddar as Special Assistants to the Chief Adviser of the caretaker government.

Mahbub Jamil, former president of Metropolitan Chamber of Commerce and Industry (MCCI) and Foreign Investors Chamber of Commerce and Industry (FICCI), will enjoy the status of a Minister while Manik Lal Samaddar the status of State Minister.

The appointments would come into immediate effect, said a government notification on 5 January.

Mahbub Jamil has been given charges of Civil Aviation and Tourism, Industries, and Youth and Sports Ministries while Samaddar got Fisheries and Livestock, and Science and Information Communication Technology portfolios.

Earlier, on January 10, the government had appointed three Special Assistants to the Chief Adviser.

Bangladesh: Caretaker Government Targets Dynastic Politics

Endless political hostility between the two main political alliances has been seen by many as the root cause of several ills plaguing Bangladesh. The caretaker government in this country, after targeting corruption, corrupt politicians and Islamist militants, now appears to be acting against the dynastic rulers of Bangladesh who have alternated in power. With this objective extortion and murder charges have been leveled against Shaikh Hasina. Khaleda Zia and her two sons are already in trouble with various corruption charges. The predicament of these political giants seems to be a matter of joy for the people of Bangladesh who have suffered at the hands of these politicians. At the same time, these actions are creating a political vacuum in the country. It is feared that this vacuum might be occupied by forces which may not be democratic.

Bangladeshis went into jubilation when the heir apparent of the BNP, Tariq Rahman was arrested. Rahman during the tenure of the BNP led alliance was seen as the most important extra-constitutional power centre in Bangladesh without whose support no major decision was taken in the country. He was considered as the most corrupt person in the country. Tariq was widely expected to succeed Khaleda Zia in near future. People in Bangladesh were pleasantly surprised when law caught up with Tariq Rahman and he was put behind bars.

Six months after a state of emergency was imposed in Bangladesh by the military-backed caretaker government, the people have started to speak of their concerns. These included the spiraling price of commodities, the fight against corruption and plans to prepare a new voter list.

Immediate provocation for the arrest of Tariq Rahman on March 8 was an extortion case filed by a fellow BNP member who also happened to be a leading businessman. Tarique was charged with extortion of Taka one crore from a construction firm, Al-amin Construction. Earlier the army-led joint forces had recovered a good amount of relief materials including quilts and pipes from the prime minister’s relief fund from the residence of Tarique Rahman. Governments relief material was also seized from the jjr houses and business establishments of many former BNP and Jamaat lawmakers.

During interrogation Tarique Rahman admitted to having bank accounts in five countries Malaysia, Singapore, Thailand, South Africa and Switzerland. He also disclosed names of some top ‘Hawa Bhaban men’ who used to control major businesses and look after his bank accounts. Tariq also revealed about his investments in several foreign countries including South Africa and Malaysia.

Action against Tariq Rahman and many other politicians belonging to both the BNP and Awami League was appreciated by the people of Bangladesh. They thought that this will give a serious blow to corruption and might free the politics from it. The action against Islamist militants was similarly appreciated.

The country, however was surprised when a similar extortion charge was leveled on April 9, 2007 against the former prime minister Shaikh Hasina who is also the leader of Awami League led political alliance in Bangladesh. The case was filed with Tejgaon police station under the non-bailable sections of the penal code by Tajul Islam Farook, chairman of Westmont Power Company. In this case Tajul brought allegations against Hasina of extortion of 30 million taka (USD 434,000) and abuse of power in 1998, when she was the prime minister.

This charge was soon followed by a separate charge of murder. Hasina was charged for killing six persons in a political clash on October 28, 2006, the day when Prime Minster Khaleda Zia relinquished power in favour of a caretaker government. Fundamentalist Jamaat-e-Islami, the main partner of Zia’s Bangladesh Nationalist Party-led four party alliance, had filed the case in which Awami League general Secretary Abdul Jalil was also accused of involvement in the incident.

Along with Hasina, 45 leaders and workers of her party and the other 14-party have been charged. They include Awami League General Secretary Abdul Jalil, former home minister Mohammad Nasim, General Secretary of Awami League Dhaka city unit Mofazzel Hossain Chowdhury Maya, Awami League Law Secretary Advocate Sahara Khatun, former lawmakers HBM Iqbal and Haji Selim, Jubo League President Jahangir Kabir Nanok, Chhattra League General Secretary Mofazzal Haider Chowdhury Roton, Workers Party President Rashed Khan Menon, and JSD President Hasanul Haque Inu. Jammat Chief Matiur Rahman Nizami has also been charged in the same case along with nine other leaders of his party.

The charges brought against Hasina and her colleagues are for unlawful assembly, inflicting injuries ranging from minor to grievous on people, murder, attempt to murder and for aiding and abetting criminal activities.

Sheikh Hasina wanted to return to the country to face those charges but was persuaded to postpone it. According to Awami League General Secretary this decision was taken after a responsible person in the government assured her that the government will take necessary measures not to tarnish her honor and image.

In the corruption ridden politics of Bangladesh, charges of this kind are not surprising. What surprised most Bangladesh was the timing of these charges. Few days before, Shaikh Hasina in a media interview had criticized the caretaker government for delaying elections in Bangladesh. She was especially critical of 18 month time-table which the EC had announced for updating the voter list. The chief election commissioner on April 5 said no elections would be held before at least 18 months, as that time is required to simultaneously prepare the voter list with photographs and national ID cards. These 18 months would end in October 2008.

Charges were leveled on Sheikh Hasina immediately after this interview. Both these charges are pretty weak. The charge of extortion is pretty old. This charge was not leveled during the five year period of Khaleda Zia regime which was known for its hostility towards Awami League. In fact, the-BNP led four party alliances would have been more than happy to pursue these charges if they were brought during its tenure.

The great delay in bringing this charge by the complainant raises questions about its veracity.

Even in the murder case, violence had taken place five months ago but the charge sheet was brought after she objected to delay in holding of elections. In the case filed by Jamaat, complainant ATM Sirajul Islam, amir of the. Paltan unit of the Islamist party, mentioned that on directives from Awami League General Secretary Abdul Jalil, Workers party President Rashed Khan Menon, and Jatiya Samajtantrik Dal President Hsanul Haque Inu the other accused killed five Jamaat activists and injured several others.

In the first information report (FIR) however the complainant had not named Hasina as an accused but the charge sheet had the Awami League Chief as an accused. The charge sheet said that at the very end of BNP-Jamaat-led alliance government’s rule, Hasina called her party activists to march to Dhaka with oars and sticks too take control of the streets of the capital. Following her call, her party activists gathered in the city sparking the violence of October 28.

A country like Bangladesh is not unfamiliar to this kind of political violence. Awami League alleges that 10,000 of its cadres have been killed during the regime of Khaleda Zia government. This tally included several top leaders of Awami League like Ivy Rahhman and S.A.M.S Kibria, Hasina, herself was attacked in a political rally in Dhaka. The incident had left many people dead. Hardly any action has been taken against the perpetrators of this violence. The play of the interim government appears that even if Shaikh Hasina is freed from the charges later, for the time being it will keep her occupied with it. These charges were also leveled against Hasina to keep her outside the country. Reports have now also indicated that Hasina, who is now on a private visit to the USA, finally may not be allowed to return home.

Even the Law and Information Adviser Barrister Mainul Hosein finds the extortion case against Awami League President Sheikh Hasina ‘peculiar’. He has said that the caretaker government would examine the case and take action only if the allegations are proved to be true. He added that due to this oddity, the national task force will examine the allegation.

The law adviser however, observed that there were no prime ministers in Bangladesh in the past against whom charges of corruption were not made. Without naming anyone and referring indirectly to the chiefs of the two top political parties of the country, Mainul said that if they are convicted in corruption cases, they would be disqualified from running in the polls as per the electoral laws.

Along with these charges on Hasina, the caretaker government also tightened noose on Khaleda Zia. Her movement inside the country was completely restricted. She is virtually now under house arrest.

To increase pressure on Khaleda to leave the country her younger son Arafat Rahman has been detained. Reports have also indicated that Arafat Rahman was not shown arrested officially because a process was on to persuade Khaleda to leave the country. She was determined not to leave the country, but finally agreed when her family members including her younger brother Major (retd) Syeed Iskandar persuaded her to agree to leave.

Khaleda, however, bargained for Trique Rahman’s release and asked the authorities concerned to allow him to go with her, but the authorities told her that he might be sent to Saudi Arabia very soon for ‘treatment’.

Khaleda will now leave the country along with her younger son. Her elder son Trique Rahman will join them later on. She will leave Bangladesh for Saudi Arabia where her permanent residence will be finalized.

The BNP is also facing the worst ever crisis in its history as a chasm has been formed within the party dividing its leaders regarding Khaleda Zia’s usefulness as the chief. A section of leaders now feel that the BNP would be better off without Khaleda, who lost popularity inside the party in the last five years. The rebel leaders feel that she would get little support from the party once she is made to leave the country. Some leaders also believe that their move against party chief Khaleda Zia and her family members will help them to avoid the axe of the interim movement.

Meanwhile, Chief Adviser (CA) Fakhruddin Ahmed on April 12 said the ninth parliamentary elections would be held before the end of 2008 as the present caretaker government is committed to handing over power to an elected government. Before that however, the caretaker government would like to implement electoral reforms and create an atmosphere conducive to holding free, fair and acceptable elections. He said the ongoing electoral reforms would ensure intra-party democracy and the government would take strong steps to encourage honest and competent candidates to take part in elections.

The law adviser of the caretaker government has also observed that the politics of the country has turned into ‘dynastic polities’ as practice of democracy is absent within the political parties. He also advised the politicians to think about what has been going on in the name of politics, adding that it could not be allowed to continue. He said, “if we want to see an end to confrontational politics as well as corruption, killings, plundering, grabbing of lands and properties, then the present leadership of the parties will have to be changed.” He added that it was national demand to exclude those who had contributed to the criminalisation of politics in the past.

The charging of many leading political figures, mostly from the 14-party alliance and some from the Jamaat-e-Islami, with murder has suddenly changed the political landscape in Bangladesh. There is also an extortion case against the Awami League chief. With this move the caretaker government in Bangladesh has lost support of both the political alliances for the ongoing political reforms in the country. Perhaps being aware of the ramifications, in influential adviser negotiated a temporary settlement with the Awami League and thus averted a further worsening of the political situation. The filing of a murder and extortion case against the Awami League chief soon after she voiced her criticism of the caretaker government in distant America gives the impression that the law is being used to neutralize high profile political leaders rather than serve the interests of justice. The political use of law has always been a cause of concern. It is possible that the present steps are taken by the caretaker government to free the country from both leading political leaders who have engaged in endless political hostility. At the same time, it is equally possible that the military is deliberately trying to create a void so that it can conveniently step in as has been done by Mussarraf in Pakistan. Things however, might prove little different in Bangladesh. Both Khaleda and Hasina though discredited have strong following in the country. The gravity of charges against Khaleda and her son may keep her down for the time being. But it will be difficult to restrain Shaikh Hasina, who now appears to be itching to start another political movement. The people of Bangladesh who are temporarily happy with the caretaker government may not like to give up their democratic rights which they have won with great difficulty first in 1971 and then in 1990. This process may also give a chance to the tainted political leaders look lot better.

Chapter VIII

8.00 Future of the caretaker Government

I will discuss on the matter as per Article of the prominent person. Actually by this chapter I want to show that the caretaker government system is in vulnerable condition because the system is not use properly and so why the future of it is in dark situation

8.01 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.

The Awami League initially strongly protested the assumption of post of Chief Advisor of CTG by the president. But later, it decided to give president a chance hoping that he might act neutrally because of the strain that had developed between him and the Khaleda Zia government towards the end of the regime. Khaleda had tried to replace the president by Speaker Barrister Jamiruddin Sircar who became president-in-charge of the country, lajuddin Ahmed was declared unfit on the health grounds. In the past, the BNP had forced Badruddoza Chowdhury to step down from the presidency in 2002. Awami League probably also agreed, because no other mutually acceptable candidate was available.

The president initially tried to fool people by making superficial changes in administration. But very soon his bias became obvious. Though president appointed ten other advisors as mentioned in the constitution, he gave them insignificant portfolios and kept the most important ones with himself.

The Awami League had stated that it would judge the president on the basis of his actions. Hasina demanded immediate removal of Chief Election Commissioner MA Aziz and three other election commissioners, cancellation of “political” appointment of 300 upazila election officers, using transparent ballot box for the polls, preparing the voter lists with voters’ photographs, and overall congenial atmosphere for a free and fair election. She expected the president to carry out these demands in order to protect people’s democratic rights to voting.

The BNP, however, was not willing to allow president this liberty. It asked president that removing election commissioners would be violation of constitution. The party suggested him not to do anything BNP and Jamaat, the EC came out with a hastily decided election schedule.

With great difficulty, Chief Election Commissioner M.A. Avis agreed to proceed on leave. Still the EC could not be depoliticized as there were three other commissioners -Justice Mahfuzur Harman, SM Zakaria and Mohamed Hasan Mansur. These election commissioners were initially willing to resign but afterwards they changed their mind under pressure, probably from the BNP.

The president has been embroiled in controversy since he took charge of chief advisor to the caretaker government. He had earlier unilaterally decided twice to deploy army, appointed two election commissioners, allegedly forced the Election Commission (EC) to announce the 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 Zechariah on leave. Similarly, president also became adamantly opposed to steps to make Zechariah 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 hi 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 had lost their lives in custody. The army termed all these deaths as ‘heart failures.’ Army in Bangladesh is known for massive human rights violation. What is worse, during her tenure, Khaleda Zia has managed to further politicize army. She hopes that the involvement of army hi the election process will help her candidates.

The US based Human Rights Watch in a recent report has stated that Bangladesh’s elite security force, the Rapid Action Battalions has killed more than 350 people in custody and could be used by the country’s former ruling party ahead of next month’s election. The group said, “Human Rights Watch is concerned that Zia’s Bangladesh Nationalist

Party, which maintains great influence over the caretaker government and its security structures, may use RAB for political means during the campaign.”

President and Chief Adviser lajuddin Ahmed’s decision to deploy troops and his unwillingness to recast the Election Commission (EC) in line with the package proposal forced four advisors – Akbar AH Khan, Hasan Mashhud Chowdhury, CM Sheri Sami and Sultana Kamal – to resign. This development further deepened the political crisis in Bangladesh.

President Ahmed however surprised everybody by significantly changing his earlier order on December 13. In the latest order, now he has asked the armed forces to remain on ‘stand by’ but not to actively engage in law enforcement. He has also promised that he would re-initiate moves to send two ‘controversial’ election commissioners on leave.

The international community, including the EU and the US are closely watching the developments in Bangladesh. They are interested in making these elections free and fair. The EC in Bangladesh has signed a memorandum of understanding (MolJ) with the European Union (EU) on sending an EU election observer team. The US Ambassador Patricia A Butenis however, considers the demand of some political parties’ for resignation of the president from the office of chief adviser (CA) as ‘impractical’.

Meanwhile, the Awami League (AL) has also started making all-out preparations for the upcoming parliamentary elections although almost all its top leaders are against contesting the polls under the caretaker government led by President and Chief Adviser lajuddin Ahmed. The AL and its allies—11-party, Jatiya Samajtantrik Dal, and National Awami Party—will hold a grand rally in the capital Dhaka on December 18 where Hasina will make a formal announcement over the election.

The controversial actions of president have proved beyond doubt that he has accepted the post of chief advisor to the CTG to further the interests of BNP alliance in the upcoming elections. It is difficult to hold a free and fair election under him. Hence the opposition alliance, which was earlier opposed to the politicized elections commission, now wants removal of the president from the post of chief advisor. Even Ershad who was earlier trying to negotiate a political alliance with the BNP led group now says that he would not participate in elections, in case any major political group boycotts it. But any drastic reorganization of caretaker government in Bangladesh at this juncture is highly unlikely. It appears that the Awami League led opposition alliance will have to come to terms with the present caretaker government. At best, with the help of monitors sent by the countries like the EU and the US it can try to keep this partisan caretaker government in check. The political scenario in Bangladesh is changing almost everyday thanks to the partisan president whose indiscreet actions could push the country into complete turmoil.

8.02 How effective a Caretaker Government can be?

After we have lost parliamentary democracy in 1975, it took long 16 years and blood shedding struggle to regain it. In 1990, after removal of the then President H.M. Ershad, Chief Justice Md. Shahabuddin Ahmed was appointed as the president of the country to hold a free & fair election which he successfully conducted. Since then the elected government was supposed to hold the next general election.

But wide rigging in various parliamentary by-elections, especially in Magura, led to the demand of making an arrangement of holding general election under the authority of a non party caretaker government and after a long political confrontation articIe-58 of our constitution was amended by inserting various provisions for such a non party caretaker government in article 58(B, C, D, E). Article 58B (3) provides that all the executive power of the republic shall be exercised by the chief adviser in accordance with the advice of the non party caretaker government.

The combined effect of article 58D(1) &58D(2) is that the non party caretaker government is empowered to take all measures to assist the Election Commission in holding free, fair and peaceful election and in taking such measures, the caretaker government does not have the limitation relating to policy decision provided in article 58D(1). The provision of article 58d (2) is not in any way controlled by the provision of article 58D (1). So the caretaker government enjoys some unfettered powers to perform any function to ensure the environment for holding free & fair election.

As the non party caretaker government is not any elected body, they are only responsible to the president [article 58B (2)]. Article 58C provides that immediately retired chief justice of Bangladesh and in his unwillingness, any other retired Chief Justice or retired justice of the appellate division has to be appointed as the chief adviser of the caretaker government. Being the judges of the highest judiciary is always considered to be very prestigious and honorable portfolio. It should not be exaggerating to hold that after introducing the provision of caretaker government hi this country, this office has got importance of a different dimension. Now every judge of the appellate division is a potential head of the government for a specific period.

The judges, being a human being, must have, in person, some political ideologies which do not seem to affect the due discharge of their duties. But after the 13th amendment, our politicians have seemingly become desperate to have like-minded person in the office of chief adviser. As a result, there have been a lot of incidents like more appointment of judges (who are alleged, by some quarters, to be ineligible and inefficient), non-confirmation of the appointment of those who are considered to be of different political beliefs and promotion of the judges belonging to similar ideology breaking the rules of seniority. As presumed by members of the civil society, the underlying objective for unstable practice in relation to appointment of judges is that politicians want to have a like-minded person as a chief adviser. If the aforesaid statement is true, such practice undoubtedly is very much opposed to the benevolent concept of non party caretaker government and harmful for the image of the supreme judiciary.

Though this kind of untoward incidents are not new in this country but after the inclusion of caretaker government provision, the politicians have become more uncompromising in this regard. In the previous regime of B.N.P nine persons were appointed without consultation with the then Chief Justice Shahabuddin Ahmed. But after he objected about two of those judges, the government cancelled their appointment.

Afterwards in 1999, two high court judges were promoted to appellate division superseding two other senior judges of HCD allegedly for their different political identities. This time also there was allegation that no consultation with Chief Justice was done. Consequently there was agitation and attempt of negotiation but all such attempts went hi vain. After coming to power in 2001, BNP government appointed one of those superseded judges as chief justices again superseding two senior judges in the appellate division and their justification was that by this they have given due treatment to a person who was unduly deprived of his entitlement. We have all reason to believe that such practice of our politicians is leading to a situation when only identical political belief will be the only eligibility for appointment as a judge in the apex judiciary.

Bangladesh is not the only country where on various occasions judges in apex court have been appointed and promoted on political consideration. The trace of such practice can also be found in countries like UK, USA etc. But in those countries no compromise has yet been made in relation to the qualification and integrity of the proposed persons and no where it has been alleged, as much as is made in this country, that almost unqualified persons are appointed or quite eligible person has been denied of proper position. In the aforesaid countries, government may decide to appoint a party man as judge in higher judiciary for rewarding him for long term service to the party provided that he possesses all necessary qualifications and as soon as he is appointed, his relation with that party ends. The new judge is expected to be quite neutral while discharging his duty. In contrast, all the politicians in our country seem to be expecting that the judges, appointed or promoted during their tenure, will render then’ support to them on every occasion whatever it might be, even after their retirement while occupying another portfolio like chief adviser. Resultantly, it is alleged that to select a very loyal party man for such post, politicians are even ready to waive some crucial criteria like eligibility and integrity.

Bangladesh falls in that category of the countries where the constitution has been given supremacy over the legislature and the highest judiciary of the country has been entrusted with the duty of supervising and maintaining this supremacy. So from the very beginning, the office of the judges of Bangladesh Supreme Court became very crucial in establishing democracy in this country in its true sense. The preamble of the constitution of Bangladesh says: “it shall be a fundamental aim of the state to realize through the democratic process a socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social will be secured for all citizens.” To ensure rule of law, fundamental rights, equality and justice in a society the most crucial role is played by the court of law.

Accordingly the supreme court of Bangladesh has been accorded the power to enforce certain fundamental rights, embodied in chapter-3 of the constitution which has been given direct enforceability through the said court. Indeed after reintroducing parliamentary democracy in 1991, our highest judiciary has done some commendable jobs in ensuring fundamental rights, public interest and, importantly, to put effective restrictions upon the arbitrary exercise of the executive power. Against all the deprivation, corruption, suppression of the government or any other, the judges of the highest judiciary remain as the last hope for the nation. But when it is vehemently alleged that ineligible & inefficient persons are appointed there, we are afraid that we are losing our last ray of hope. We have all reasons to apprehend that such person may not be able to act going beyond all kind of fear and favor.

In a developing country like Bangladesh, both peoples’ participation and the existence of a strong judiciary are equally important. To ensure peoples’ true participation in democracy, the concept of caretaker government has been introduced. But it is now evident that influence of politics is undermining the very concept of caretaker government and posed a severe threat to neutrality and efficiency of our apex judiciary vis-à-vis democracy. More to the point the politicians seem to be devoted not to separate judiciary from the executive. The caretaker government, which was made to strengthen democracy, has become a threat to it. If necessary-, the provision of caretaker government should be amended. And obviously before everything, the judiciary should be made totally independent.

8.03 Caretaker Govt. to face time dearth challenge:

The next caretaker government, which is likely to be formed hurriedly in the wake of impasse over the appointment of chief adviser, will face challenges to create a level-playing field for free and fair polls within a short time.

Officially, the caretaker government has 90-day tenure, but it will have only 58 workdays to complete the massive task of creating a peaceful atmosphere for the election besides running day-to-day routine work.

With the formation of the next non-party interim government close at hand, nothing however is certain yet due to the prevailing political impasse over the possible chief of the caretaker government.

Former Chief Justice KM Hasan is supposed to be the next caretaker chief, but his path is not so smooth like his predecessor Justice Latifur Rahman as there has been a political deadlock over his assuming the post.

Justice Latifur Rahman, who led the previous caretaker government in 2001, had over four months’ time to complete the groundwork to lead the interim government. He prepared himself as well as finalized the names of his ten advisers and made them prepared mentally before assuming office in July 2001.

But, the scene is totally different this time as both the ruling and opposition alliances are at loggerheads over Justice Hasan’s becoming the chief adviser.

There is also little possibility that the stalemate will break before the present government’s tenure expires on October 27 despite the ongoing dialogue between ruling BNP and main opposition Awami League (AL).

8.04 Caretaker Government Unwilling to Give Up Reform Agenda

A section thought that the failure of the caretaker government to exile former premiers Khaleda Zia and Sheikh Hasina Wajed – whose bitter rivalry has been blamed for plunging the country into political chaos – has chastened it. The caretaker government however is unwilling to give up the reform agenda so easily. It has asked the political parties in Bangladesh to ensure they practice internal democracy before the country holds free and fair elections.

The main thrust of the proposed reforms is to end the dynastic leadership in the parties. It will also change the way these leaders rule when they are in power. These reforms are proposed targeting former prime ministers Sheikh Hasina and Begum Khaleda Zia. Hasina is the daughter of independence leader Sheikh Mujibur Rahman, and Khaleda is the widow of former president General Ziaur Rahman.

The caretaker government also wants to strip the parties of their powerful and often militant student wings, which triggered immediate protests by Hasina’s Awami League and Khaleda’s Bangladesh Nationalist Party (BNP). Both the BNP and Awami League bank heavily on the support of students and professional groups in this politically volatile south Asian country.

The government plans to implement democracy and financial transparency in the political parties. The Election Commission has proposed that parties register with it by submitting lists of their elected leaders. According to a senior Election Commission official, retired army Brigadier-General Sakhawat Hossain, these parties will have to complete elections to their central and grassroots committees in accordance with their constitutions before applying for registration. They will also have to disclose sources of funds. No political party would be allowed to contest national elections if it failed to register or complete the stipulated reforms.

Fakhruddin Ahmed also sought the media’s cooperation in government efforts for a free, fair and credible vote. Talking to senior media officials and editors in Dhaka, he said the government would not retreat from plans to hold elections within the stipulated time. He said, “The government does not intend to make just one election fair and impartial but wants to ensure that every future election would reflect the people’s will”.

8.05 Bangladesh: U-Turn on Dynastic Politics by the Care Taker Government

In a dramatic reversal, the military backed interim government on April 25 withdrew the bar on Awami League President Sheikh Hasina’s return to the country and also said it never put any pressure on BNP Chairperson Khaleda Zia for leaving the country. The decision ended weeks of intense speculation and drama regarding the future of the chiefs of the two major political parties in Bangladesh.

8.06 Need Reforms:

A reformed independent Election Commission or EC, has vowed to provide the nation with a free, fair and transparent election in a peaceful environment. Our national army has been given the most difficult task to make the voters’ identity card. Eighty million voters are expected to be issued identity cards.

Whether the caretaker government is sincere about its commitment to holding the election remains to be seen. A free and fan- election under the caretaker government would give us an opportunity to choose a truly civilian government. So far, both the government and EC appear to be working sincerely to fulfill the promises.

If the political parties fail to resolve their differences at a time of nationwide disaster, it may cause a third party, the army, to be brought into the scene. That is exactly what has happened in Bangladesh. The army’s involvement in the domestic politics is not desirable for a nation and not healthy for a democracy as well. But the army-backed government was the very last remedy to bring the country back on the trail.

A free and fair election is not the exclusive task of the caretaker government. The government will have to focus on the key institutes like judicial department, anti-corruption body ‘Dudak1 and police forces, to make sure that these organizations can never be manipulated or undermined by the future political governments. In recent months, a few essential actions have been taken by the authorities to make these institutions independence bodies free from interference. But there will always be an urgent need for additional reforms.

Due to the government’s massive drive against corrupted politicians, our political parties have become fragile entities, but the party organizations at the grassroots level have remained very much resilient so far. The present crisis in the political parties is the result of an absence of internal democracy which makes the parties incapable of solving problems. The political parties do not seem to heed the EC’s appeal for internal reforms. The Bangladeshi politicians are not known to appreciate being told what to do by someone else. The Election Commission should highlight internal reforms, financial accountability, affiliations to student organization etc., during the discussions with the politicians. The political parties’ branches in foreign countries also need to be disbanded as they split the non-resident Bangladeshis socio-politically on the foreign soil.

The idea of setting up a National Security Council (NSC) in Bangladesh, originally proposed by the some quarters within the caretaker government has come to public attention again, although it still remains uncertain whether or not the idea will see the light of the day. The government should initiate the creation of an executive body responsible for coordinating policy on national issues and advising the future political government on matters related to national security, anti-corruption drive etc. The NSC may include the president, the prime minister, the main opposition leader in the parliament, the chief justice and the chiefs of three armed forces as its members. At a time of national crisis, the NSC can play a significant role to mitigate conflicts and ensure stability in the country. The proposed NSC can function as an advisory body rather than a decision-making council. The council should be empowered merely to suggest guidelines and the course of action for the government. A few of our political leaders are urging the nation to support a greater involvement of our army in the political process. In a democratic society, the army should have no role hi politics. Fortunately, the army chief and the chief advisor have reiterated that the army does not have any political ambitions and is only interested in improving law and order. Recently, Gen Moeen U Ahmed stressed the importance of our own brand of democracy, recognizing the country’s social, historical and religious background as the western democracy does not seem to function properly in Bangladesh. Which things remain yet unclear about such an observation -however well-intentioned it may be in the context of aggression and hostility by the political parties in the recent past, one cannot also forget the experience of “our own brand of democracy”, –“basic democracy “-during the sixties? It was a framework for politics that failed ultimately to win public support and was rejected by the Bengalis.

The transfer of power to an elected government is one of the key responsibilities of the incumbent caretaker government through a transparent election. Now, time has come to take decisions about lifting or partial withdrawal of the state of that would restore civil rights and facilitate the election process hi an open atmosphere. The right to free expression must not be restricted and any abuse of human rights must not be allowed. On the other hand, the politicians must end the politics of vendetta and victimization, as was witnessed in the past. We expect them to refrain themselves from politically motivated violence, hartal and boycotting the parliament, and settle their disputes hi a civilized manner through dialogue and negotiation.

Chapter – IX

9.00 Legality of the Non-Party Caretaker Government.

9.01 The question of Legality on 13th Amendment in 1996 :

The caretaker government was given the constitutional status by the 13l Amendment to the Constitutional people; however, thought that although non-party and neutral in nature, it was not democratic.

On July 25, 1996 a writ petition was filed in High Court challenging the 13th Amendment because it changed the constitution in several ways. The court in its judgment said that no fundamental change was made in the constitution by the 13th Amendment. Moreover, it was a temporary provision and no unconstitutional acts here performed through the amendment. The High Court, therefore, dismissed the petition.

On June 24, 1999 a writ petition was filed challenging the rules framed by the caretaker government. The court issued a rule nisi to the government to show why the 13th Amendment should not be declared illegal or unconstitutional. The court, in its opinion, said that the concept of the caretaker government was contrary to the principle of democracy. By the amendment, changes were made in Articles 48 and 56 because, so long as Article 58(4) is in force (the caretaker government being in power), those provisions would remain ineffective. Article 48 stipulates that the president would act in accordance with the advice of the Prime Minister who is popularly elected. Article 56(4) says that if any occasion arises to appoint a Prime Minister, the persons who were members of Parliament at its dissolution shall be regarded as continuing to be the members thereby showing the continuity of the representative government, the court opined that as long as these provisions would remain ineffective, the people would remain without representation. This is contrary to the constitution as people can not remain without representation. The constitution stipulates a representative democracy and the caretaker government is not a representative government. As such the 13th Amendment is against spirit of the constitution.

Attorney General Mahmudul Islam argued that the 13th Amendment should not be taken out of context of the prevailing political situation in the country. The February 1996 election and the passing of the 13th Amendment could be regarded as the violation of the constitution but the people accepted it as a “doctrine of necessity”. The court however, sent the case to the Chief Justice to be adjudicated by a larger bench of the court.

On January 25, 2000, Supreme Court lawyer M. Salimullah filed a petition challenging the 13lh Amendment. The petition stated that the basic structure of Bangladesh government was democratic and the people’s representatives would run the administration but under the amendment non-elected caretaker government run the administration. The petition was considered by a larger High Court bench which gave its judgment in August 2004 declaring that the 13th Amendment did not distort the basic structure of the constitution. Rejecting the writ petition the bench also ruled out that the constitutional amendment would negatively influence the judiciary. The bench also observed that the 13th Amendment did not amend Articles 8, 48 and 56 of the constitution but only temporarily suspended for 3 months. The Articles were not repealed and so there was no need for referendum. “The three-member bench maintained that the amendment is not inconsistent with the constitution’s basic structure, rather it helped institutionalize and strengthen democracy which is the basic feature of the constitution. Free and fair election is the heartbeat of democracy, which the caretaker government ensures.

Although the High Court said that the 13th Amendment would not affect the judiciary adversely, some concerns have been expressed on this matter. Some political leaders and legal experts said that since the last retiring chief Justice would be appointed as the Chief Adviser, there would be chances of the judiciary being manipulated by the party in power to make a certain justice available to appoint as head of the interim government. There could be promotions, transfers, of extension of services to have that desired result.

Justice Habibur Rahman, the former Chief Adviser to the caretaker government expressed such apprehension. ‘The provision of appointing the Chief Justice as the head of the caretaker government has given way to a depression on the Supreme Court premises and it is not a good sign.

9.02 Constitutional and Legal Status:

The recent CTG has completed over a year, but its constitutionality remains dubious. The fact is that there is nothing in the emergency provisions regarding a caretaker government. The CTG headed by lajuddin resigned before the expiry of 90 days and holding of election to Parliament. The appointment of second caretaker government did not violate any provision of the constitution. The issue is whether it is valid after 90 days.

There was a case in the High Court, challenging the continuity of CTG beyond 90 days time limit. But it was dismissed on technical grounds. The issue is often raised in various talk shows and seminars, where speakers and legal scholars take two opposite stands. The proponents of the recent CTG give two arguments in favour of its constitutionality;

The 90-day time limit is not applicable to CTG. Article 58C (12) stipulates that “The Non-Party Caretaker Government shall stand dissolved on the date of which the Prime Minister enters upon his office after the constitution of the new Parliament.” This implies the CTG can function till the new Parliament comes into being.
The 90-day time limit is binding for Election Commission (Article 123(3), which states that, “A general election of members of Parliament shall be held within ninety days after Parliament is dissolved, whether by reason of the expiration of its term or otherwise than by reason of such expiration.” The Election Commission’s plea is that the voter list prepared by the previous EC was declared invalid by the High Court after 1 November 2007 and a new election cannot be held till a new voter list is prepared.

The critics of this theory maintain that the Election Commission is taking too long a time for preparing the voter list and the delay has occurred because the new list is prepared on the basis of new law (for voter ID), which is not required by the High Court judgment. They argue that the Government or the Election Commission cannot extend the life of CTG unilaterally. The road map of election needs the concurrence of the Supreme Court as per Article 106 of the Constitution, which states,

“If at any time it appears to the President that question of law has arisen …. he may refer the question to the Appellate Division [known as Supreme Court for consideration and the Division may… report its opinion thereon to the President.”

They conclude that till it receives the blessing of Supreme Court, the constitutionality of CTG will remain doubtful in public mind.

Be that as it may, the de facto current emergency caretaker government has created a gap in its functions and governing capacities. Being a caretaker government, it can only have a cabinet of eleven advisors to oversee routine government operations, originally fixed for four months mainly for organizing Parliamentary election. But being also a government under emergency it has to manage and oversee all government operations including policy and routine functions for an indefinite time. This gap in functions and governance capacities has created a serious impediment in providing effective supervision over various government ministries and agencies.

To be specific, the government has been experiencing immense difficulty in managing over 50 ministries by only 11 advisors which were done by 60 ministers previously. It sought advice from the Law Commission in May 2007 on “the procedure for increasing advisors” and found no easy way to overcome the constitutional constraint in increasing the number of advisors beyond 10. Other alternatives like appointment of consultants continue to be explored, as noted recently by the Army Chief in London. The issue is germinated to the efficient governance but it poses four major hurdles.

First, constitutional propriety, which seems to negate extension of advisors beyond ten.

Second, is the question of appointing deputies to the existing advisors using other titles, such as consultant or deputy adviser.

Third, the main issue of the legal or formal status of these assistants and how will they function.

Fourth, the real challenge was how to use of one or a combination of these options would actually lessen the burden of responsibilities of the ten advisors?

While the title may not be a real problem, the difficulty will arise from their placement and the authority they will exercise. Obviously, they have to be placed above the Secretary, who has to accept their authority. The critical question will arise if these appointees will be able to take final ministerial decisions according to the government Rule of Business. If they cannot take final decisions and put their signatures on the files, their utility is significantly reduced. If they are kept only as consultants or even deputy advisers without formal decision-making authority but with the responsibility of making recommendation to the respective advisers, they will have limited usefulness. Even this limited help may be beneficial if harmonious relationship can be maintained with the Secretary and the trust of the relevant advisor can be secured and their position.

Chapter X

10.00 Loopholes of the activities of earlier Caretaker Government and suggestions there under 10.01 Where lies the weakness of the caretaker government?

With the change in the political scenario in Bangladesh and government becoming more lenient towards corruption and corrupted politicians and giving more importance towards an election with the participation of politicians of all feathers, many people become frustrated. They questioned the objectives of the caretaker government and many concluded that the government is to some extent already a failure.

The ordinary citizen also ponders over the situation and tries and still trying to understand the underlying cause of the shift of the political situation in Bangladesh. He assessed that the expectation of the people was too high to the caretaker government after 1/11. There is little to blame the common people. The expectation was actually created by the caretaker government itself and their sponsors by their projections of then-objectives and their initial steps.

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

Some may cite the support of the military for the caretaker government. The Chief Adviser of the Caretaker Government of Bangladesh in his speech in UN in September 2007 cited Bangladesh is a country of civil-military cooperation in the governance which may be an example to be followed by the developing countries.

But it is found the role of the military was more indirect, from distant and was not uniform in this fusion. People could feel the presence of the military but could not held them responsible for the failure of the government if any The indirect relation of the military gives the government more acceptability but less strength and as the days are coming to the end for the caretaker government, the shadow of the military is more fading.

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

election.At the end of its declared tenure, let us hope that at least a free and fair election the nation would be able to see.The caretaker government is also thinking of safe exit. The compromise in its strategy may be a way to find more acceptability to the political parties and to avoid the repurcation which might fall on them if the next elected government remains displeased with the way the caretaker government behave with the political parties.

The approach of this civil-military government fusion initially was more military in nature, but at the end it is more civil in character.

The time proves that it would have been better if the government be more civil from the beginning. It would take less time for them to hold an election free and fair then.

Some may argue that though the effort to try the corrupts nosedived, the CTG has made reforms in many constitutional bodies and the election commission has made a voter list with national ID card with the help of military which is a historical achievment for Bangladesh. The constituional reforms would have no value if the next parliament does not endorse them, that means that the CTG has no constitutional right to make all these Reforms and taking 2 years to make an electronic database of the voters as the only reason

to lengthen the tenure of the CTG would not be acceptable to people. Regarding the separation of judiciary, people have profound doubt about its independence and efficiency.

The other agenda of the goverment to make a change in the political culture of the political parties also couldn’t progress. The attempt is still going on by the election commission to introduce registration of the political parties and PRO, the credit if it succeeds against the opposition from BNP and JI will go to the EC. Government would get the credit if it could; make the parties to come to consensus in relation some political behaviour after the election. So far government could make little progress though they are trying to make the two top leaders of AL and BNP to sit together for dialogue.

Above mentioned chapter 3,4,5 are actually criticise about the caretaker government but those are mere discussion but following are most short come. The basic things are that still now we are not in good position in respect of democracy. By caretaker we have not got good democracy at all because our practice is not bonafide but malafide.

10.02 Some reforms are suggested in this regard and which are as follows:

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

Though election is not the only pre-condition for democracy, it has to be accepted that it is undoubtedly the most important condition. The people can exercise their power only through free and fair election. Article 7 (1) of our Constitution says, “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.” Article 11 of the Constitution says,” The republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed and hi which effective participation by the people through their elected representatives in administration at all levels shall be ensured.” The Constitution reflects the ideals and values nurtured by the nation over a long period of time. Admittedly, these ideals of democracy came to us from the Western societies. It is from the British that we got the idea of representative government. Today, people in Bangladesh know that free and fair election is a sine qua non for ensuring a democratic form of government. This was evident during the movement against the military autocracies of the past. The elections in 1954 and 1970 occupy a crucial place hi our history. Actually both these elections assumed the character of referendum. While the 1954 election reflected the people’s rejection of the Muslim League and its communal politics, the 1970 election was a vote of confidence on Sheikh Mujib and the Awami League. In fact, the demand for full independence was but a logical step from the 1970 elections. The struggle to restore democracy was resumed in 1975 after the assassination of the Father of the Nation Bangabandhu Sheikh Mujib. The practice of rigging elections with the active support of the government started during the military regime of Gen. Zia. In fact the use of the administration to manipulate the elections and their results was an open secret during the martial law regimes of Gen. Zia and Gen. Ershad. The Parliaments, elected through these rigged elections, was used to legitimize their usurpation of power. However, popular agitation for election under a caretaker government gathered momentum after the Magura by-election that was blatantly rigged by the ruling party. Finally, after the voter less one party election of February 1996 Begum Zia’s government was forced to accept the proposal for a caretaker government and enact the necessary change in the Constitution. The concept of a caretaker government during the interim period, when the term of an elected government ends and elections are held for installing a new government, is not new. Those who follow the Westminster style parliamentary system are familiar with it. When a new general election is scheduled and a date is fixed, the outgoing government remains in office but in effect it becomes a caretaker government. According to long established practice and tradition, the outgoing government is not expected to make any new law or take major policy decisions. They are expected to simply carry on the day- to -day routine work of the government. Not only the British, all the countries with parliamentary system follow this practice. I have seen this in Australia. I believe this practice is strictly followed in India. Bangladesh is unique in the sense that the outgoing elected government, under the law passed in 1996, actually steps down and an interim government is installed as a caretaker government. I believe nowhere in the world such a system exists.

The Bangladesh practice of a caretaker government is the result of deep distrust of the outgoing elected government. With the fall of Ershad in 1990 and the installation of an elected government, it was expected that the practice of rigged election would come to an end. It was a matter of profound disappointment that the ruling party headed by Begum Khaleda Zia was unable to live up to the expectations of the nation. She was .not willing to accept defeat. Instead, her government resorted to the same practice of rigging that was followed by the military rulers. In fact, the Magura by-election in 1994 convinced the Opposition parties that they did not stand the ghost of a chance to win if the ruling party remained in office. The one-party election held on 15 February 1996 further convinced the common people that unless the government resigns a free and fair election could not be held. Public agitation assumed a serious turn. Begum Khaleda Zia had to bow to public opinion and resign. However, before resigning she quickly enacted a law on caretaker government. Though the law followed the basic formula advocated by the Awami League, none of the Opposition parties was consulted on the actual text of the draft law. In order to stem the rising tide of public anger she hurriedly passed the law. We are still living with this law under which two elections have been held. The flaws in the law were detected right from the beginning. It may be recalled that a crisis was brewing in early 1996 when President Abdur Rahman Biswas ordered tanks in the streets and sacked the chief of army staff Gen. Nasim. Though the chief adviser and his council enjoyed all the powers of the government, the president retained control over the armed forces. Thus the seed of conflict within the government was sown when the relevant law virtually split the powers of the government. The chief adviser exercised great restraint and averted a crisis. His skill and acumen were crucial in maintaining peace and tranquility in the country. Given the history of Bangladesh where most elections in the past were rigged, the introduction of the caretaker system is indeed a positive development. If the system is implemented honestly the people’s expectation of free and fair election can be fulfilled.

The experiment with this system in 1996 proved to be a success. Neither side complained of rigging. Admittedly there were minor complaints but on the whole the elections were accepted as free and fair. Both the national and international observers expressed satisfaction about the arrangements. It should be pointed out that the primary responsibility for holding rigging-free elections rests with the Election Commission. However, the government has the power to influence the results if it so wishes. The Deputy commissioners and their subordinates function directly under the government and they are the ones who make all the administrative arrangements. Since the DCs act as Returning Officer, the government can manipulate the results through the DCs who are under its direct control. The Upazila level officers also function as presiding officers and polling officers. Through them the government can rig the election. In 1996 the government was truly neutral and, as a result, the Election Commission was able to discharge its duties without direct or indirect interference.

The general election on October 1 in 2001 was different from the earlier one. There were widespread complaints of rigging and corruption. The problem started right from the moment when Justice Latifur Rahman took the oath of office as chief adviser. He violated the spirit of the underlying principle of the caretaker government. For example, he requested the president to pass ordinances that were not acceptable to the Opposition. Article 58 D (1) of the Constitution clearly says that the caretaker government will perform only the routine duties of the government and that it will not take any policy decision. However, Justice Latifur Rahman and his colleagues changed the ground rules of the election system in Bangladesh. Such far-reaching changes in the law should have been done either by the elected Parliament or on the basis of a national consensus. On the question of changes in the electoral laws, the Election Commission also acted arbitrarily. In the absence of a national consensus, such hastily passed laws compromised the fairness and neutrality of the electoral process.

The Constitution does not give the caretaker government the right to review and annul the orders and decisions of the outgoing government. After all, the outgoing government was an elected government that enjoyed the confidence of the nation. The caretaker council of advisers had no legal or moral right to sit on judgment over an elected government. Their sole duty is to deal with routine work and oversee the elections. Justice Latifur Rahman acted as if his was a successor government with the mandate to undo the actions and decisions of the outgoing elected government. The caretaker council of advisers suspended the implementation of many on-going projects. These presumptuous decisions caused delay and confusion in project implementation. In fact, Justice Latifur Rahman created an impression that the outgoing government was guilty of corruption and that it had taken many wrong decisions. This was certainly a violation of the basic principles of neutrality of the caretaker concept. Clearly it went against the letter and spirit of the provisions of the Constitution. The continuity of the government was disturbed. Justice Latifur Rahman surrounded himself with officers whose anti-Awami League bias was well known. In league with members and advisers of the BNP, these officers sent instructions to the district officers on the so-called “risky” centres. All the centres that were known to be strongholds of the Awami League were identified and military officers were given lists of Awami League volunteers in these centres as threats to law and order. This was clearly done to prejudice the military officers on duty. The deployment of the army personnel was done as desired by Begum Zia. Justice Latifur Rahman was visibly eager to please Begum Zia. During the 1991 and 1996 general elections, the army personnel were required to patrol the main roads. They did not have the right or duty to enter polling booths. The idea was to use the army to maintain law and order in the area. They should remain within reach of the civil officers in charge of the polling centres. Should there be violence in any centre they would be requested to intervene. This arrangement was not acceptable to Begum Zia who demanded that the military should not only enter the election centres, they should also get police and magisterial powers. Justiee Latifur Rahman immediately acceded to Begum Zia’s request. Later it was seen that this regrettable decision was responsible for putting the army in the centre of a controversy. The first election under the caretaker law went smoothly largely due to the integrity, firmness of character and efficiency of the chief adviser. The major flaws in the law became clear during the term of the last advisory council headed by Justice Latifur Rahman.

10.03 Caretaking isn’t the last word

Obey law not because it is always right, but because it is right to obey law:” RM Mclver. Democracy implies,fromthedaysof Herodotus, a rule of the people. The people have ruled themselves directly as in the Greek city states or elected their representatives who candi ruled on their behalf with their con- sent. That speaks why the system of con election has become so significant in democratic order. In the words of SP Huntington, “Elections, open, free and fair, are the essence of democracy, the inescapable sine qua non. “In the western democracies, social conditions have been so orchestrated that a voter can cast his vote on his own volition, without anybody’s prompting or coercion. Neither any voter, finding his vote already cast by somebody else on his behalf, gets dithered nor prevented from voting by force. In other words, social conditions are so modulated that elections require the politicians to compete for people’s votes. The politicians take the entire electoral exercise in sports- man ship spirit. The election com¬mission, like a dispassionate umpire, takes care that the electoral rules are strictly followed. The political leaders trust the people and trust one another. Being victorious, the candidates do not lose confront their sense of proportion. At defeat jug they do not feel that the sky has fallen down; rather they start working for victory in the next election. Societal norms negate any form of captive votes. Social conditions make any type of vote-rigging practically impossible. These states thus prehave not been in need for any such political contrivance like the Non- Party Care-Taker Government for making elections open, free and fair. If any irregularity crops up any time, the political leaders concentrate on social conditions, come together, look at them selves, discuss and get it settled without caring for any mechanical political mechanism or any intervention from any quarter. In the new democracies like ours elections are held, though not regularly in all cases, and quite often these are rigged. The politicians, instead of competing for people’s votes, try either to purchase them with their black money or cajole them to vote for them through questionable means.

In some cases, they use their muscle power, often with hired goons, in broad day light, to force the recalcitrant voters either to abstain from voting or vote for them, thus getting themselves elected. They talk of black money and muscle power but have never made any ser iousattempts to eradicate these evils with a view to creating a congenial atmosphere for fair poll in the society. They take election as the veritable gateway to political power and win they must, by means fair or foul. If they win, everything is fine. When they lose, they go on discovering conspiracies all around, at all layers of electoral exercise, as if the whole world were busy conspiring to bring about their defeat. Then they start talking about rigging or vote- robbery, whether subtle or blatant, even if an angel were in charge of the whole exercise. This is how the former President of Bangladesh Justice Shahabuddin Ahmed portrayed the cognitive map of our political leaders a few years ago in a seminar. The political leaders in our country do not trust the people nor do they trust themselves. No-Party Caretaker Government, the unique political creature in our history, brought forththroughtheThirteenthConst itutiona amendment Act, reflects in fact a kind of no-confidence of the political leaders against the political leaders themselves. The elected ones run the government for five long years but they are adjudged unfit for handling the general election. Isn’t it a dire aspersion on the integrity of the entire crop of political leadership in the country? I still remember how Mujahedul Islam Selim, one of the better products of Dhaka University, came up with a draft of a neutral caretaker government system in the dying days of!990 for approval of the top leaders of different political parties so that elections could be free and fair during the tumultuous post-movement period. He prepared it as a temporary measure, for three or four general elect ions. Social soil , he thought, could then be prepared by the political leaders themselves so that the important political sapling of election could have a luxuriant growth in the society, bringing in both vigor and sanity in political activities.TheThirteenth Amendment Act however has made it a permanent feature .Every body remembers how the Thirteenth Amendment Act was passed by the sixth Jatiya Sangsad. The demand for neutral caretaker government began to be ociferous from the later part of 1994, though the sitting government was adamant against it. The opposition leaders knew that after the resignation of 148 members of the Jatiya Sangsad no constitutional amendment was possible; even then they went on pressing for the neutral caretaker government, thus taking the count r y to a no-government situation. Ultimately the sixth Jatiya Sangsad appeared as a necessary evil. Evil in the sense that general election, which was held, was not free and fair. Necessary in that the Non-Party caretaker Government was brought for the through the thirteenth Amendment A c t i n M arch 1996.After a decade or so since then, the issue of free and fair election through the contrivance of Non-Party Caretaker Government has again come to the fore. The leader of the opposition Sheikh Hasina herself has raised this issue, although she has not yet spelled it out clearly. Being utterly disappointed with the outcome of the last general election she, instead of taking closer look at the social milieu, has raised the issue of electoral reform. Top leaders of several left leaning political parties have also joined the chorus. Indeed there’re areas which need to be straightened. In the interest of fair poll the evil influence of black money must by checked. The ominous role of muscle power must be brought to a halt. The lection commission must be independent and strengthened so that it can effectively exercise its supervisory role. The financial dimension of the electioneering persons must be made transparent. Law and order situation must be normal. Everybody in the society would be happy to see the default lines rectified. What can the poor No n-PartyCaretake government do about the mighty intrusion of black money or muscle power in the electoral process? I stiller collect the operation of countrywide small project initiated by a left party, when some dedicated workers of the party went out indifferent parts of the country with such slogans as: I will cast my own vote: I will vote for my own candidate at my own will. That was a small beginning. If the move connection some of the aberrations now, confronting the electoral process in the country could have been wiped out. The spirit of the move is the very essence of democracy. This is how the western societies have been prepared for a democratic order. Indeed the game of politics must be played according to certain fixed rules. These rules are formulated and accepted by the political leaders themselves. Election Commission plays the role of a neuventedtral umpire. To enable it to play the desired role, it must not only be independent but also powerful. Much of what is required in this area depends on democratic culture rather than on the Non-Party Caretaker Government. The consensual approach involving mutual give and take, being respectful to one another’s view sand the overriding concern of the majority party to work harmoniously with the minor ones emerges from the societal norms rather than from any political mechanism. In other words, the political leaders should be consciously inward — looking. Taking a close look at the social conditions and at themselves they should fashion their political orientation so the system of neutral caretaker government becomes a thing of the past in, the last analysis, and the political leaders themselves would emerge as the prime movers of general election. The non-Party Caretaker Government stands out as a veritable slur on the nature and capability of political leadership in the country. They should stop thinking of any reform measure fort heNon-partyCaretake government, because it can neither handle the evils of black money nor can it do anything of the undesirable muscle power nor cant make the Election Commission independent. That the Chief Adviser heading the Non-Party Caretaker Government should be consensus candidate sounds quite good, but political reality in Bangladesh does not warrant it. Where consensual approach in the society is conspicuous by its absence, how can you think of a consensus candidate? One can argue that those who matter in this area would be forced to accept the proposal. In that case it is not politics but something else that would work and to that extent political class in the society would hurtle themselves to the crevice of deep calumny and political system, to a deep crisis. The political leaders, moreover, must shift their attention from the rule of persons to rule of law. Here lies the area where they can exhibit the best in themselves. In here the creativity of political leadership should be demonstrated best, not in their expertise to fabricate confrontatheirtional politics or agitational jugtheygernaut. If the rule of law becomes their overriding concern and if they can build consensus among themselves on the key social issues including electoral issues, political activities are bound to be back on the rail. Without consciously preparing social soil for eradicating the evils, any tinkering with the Non-Party Caretaker Government would certainly be fruitless, nay positively harmful. The political leaders should concentrate more on social conditions to make the society safe for democracy.

In the new democracies like ours elections are held, though not regularly in all cases, and quite often these are rigged. The politicians, instead of competing for people’s votes, try either to purchase them with their black money or cajole them to vote for them through questionable means

Chapter- XI

11.00 Conclusion

Recommendation

From the above discussion we can say that from very early of civilization democracy was discussed from various viewpoints and applied it various way. Today most of the people want to enjoy this form of government. The people of Bangladesh are not out of them. But Bangladesh has been facing various problems to institutionalize democracy since its independence. Yet it, prospects of democracy in Bangladesh today are not insignificant. I think the suggested policy measures given above would be helpful for the policy makers of the state for democratic development. For this the media, civil society and socio¬political organizations and institutions must play the pioneering role. The military-controlled interim government, which made 79 ordinances in 19 months, nulls over promulgation of new ordinances despite the High Court’s rulings that the caretaker government has no authority to promulgate any ordinance making provisions not directly related to elections.

Article 58 D (1) and (2) of the Constitution, which clearly says that the non-party caretaker government shall discharge functions as an interim government and shall carry on the routine functions of such government with aid and assistance of persons in the services of the Republic; and except in the case of necessity for discharge of such functions it shall not make any policy decision.

Constitution experts, however, said the government should not make any more ordinance as the High Court in two verdicts observed it had no power to make ordinances not related to elections.

The High Court verdicts, which have put the ordinances into uncertainty, paved the way for courts to strike down almost all of the 79 ordinances, if they are challenged in the High Court, as only three of them, to some extent, are related to the holding of elections, said constitution experts.

Observing that the powers of the Caretaker Government are narrower than those of a politically elected government, the Court said, “An ordinance can only be promulgated by the caretaker government if it is directly related to elections. Otherwise, that would be without lawful authority. If the power of the president is widened at the demand of particular quarters beyond the constitutional framework, the balance of the people’s powers would be jeopardized. Before promulgating any ordinance, the President must be satisfied that the elections will be hampered unless the ordinance is promulgated. Otherwise, the President cannot promulgate such an ordinance.

Still now Debate on Caretaker government system of Bangladesh

A political debate on Caretaker government system of Bangladesh i,s ongoing among die politicians. The rolling party Awami League (AL) general-secretary Syed Ashraful Islam said on Tuesday that the caretaker government ‘experiment’ had failed, and a national debate should decide whether or not to continue with the system. Before that Deputy leader of parliament Syeda Sajeda Chowdhury had called the parliament members to abolish the caretaker government system on June 28 during the budget session of parliament.

AL MP Suranjit SenGupta also advocated the repeal of the system. Later the main opposition party Bangladesh nationalist party (BNP)react that and said, “Awami league want to capture the power again by the election manipulation.” on the other hand But an adviser to the prime .minister said on Friday thai the government is not considering the cancellation of the caretaker government system at the moment though some ruling Awami League leaders have been speaking for it.

“The government has made no decision on the abolition of the caretaker government system,” Alauddin Ahmed, who advises Prime Minister Sheikh Hasina on education, social development and politics, he paid in New York on Thursday. Awami league GS said the time had come to rethink the interim government system, and all those involved in the electoral process should debate the issue.

“Let the Election Commission consider the opinion of all the political parties on the matter,” said Ashraf, the local government minister.. He criticized the caretaker governments of 1991, 2001 and 2006: although he conceded that the AL had called on a caretaker government to assume power at the end of the last BNP-led administration. On the other hand the Chief election commissioner ATM Shamsul Huda recently said it was possible to hold free-and-fair elections under a political government. AL leaders proposed to the Election Commission to consider the opinion of all the political parties on the matter.

BNP secretary general Khandaker Delwar Hossain criticised Syed Ashraf for his comments over caretaker government on Wednesday. Delwar said the AL-led Grand Alliance government was intent on doing away with the caretaker government system since it wanted to control the next elections. Chief election commissioner ATM Shamsul Huda on Aug 12 said the caretaker government system was for political parties to decide and the EC’s main concern was the

security of the voters. The other election commissioners told on Thursday that the EC was unwilling to discuss the issue of whether the caretaker government system should remain during the planned upcoming dialogue with political parties. A national debate should decide whether or not to continue with the system. But it would not be on the Election Commission’s agenda, they added. The system was introduced after the political unrest in 1991. The AL strongly advocated the system at that time, while a reluctant BNP eventually conceded to the proposal. The two main political parties have reversed their role on the issue. So lastly we can say it is still now vegue to us that what will be the consequence of caretaker government..

Bibliography AM Hasanuzzaman, Role of Opposition in Bangladesh Politics, University Press Limited, 1998; MR Khan, Shangbidhan O Tattvabadhayak Sarkar Bitarka, Dhaka City Prakashani, 1995; AM Hasanuzzaman, Bangladeshey Sangsadiya Ganatantra, Rajniti O Prashasan, 1991-2007, Dhaka University Press Limited, 2009.

Disclaimer:

Latest Articles

PROTECTION OF PUBLIC SAFETY AND WELFARE WITHIN A COUNTRY BY LAW

LAWS HELP TO PROMOTE SOCIAL COHESION AND HARMONY BY ESTABLISHING SHARED NORMS AND VALUES THAT GUIDE BEHAVIOR AND FOSTER A SENSE OF COMMUNITY

HOW LAW AFFECT PROMOTION OF ECONOMIC DEVELOPMENT OF A COUNTRY

JUSTICE AND EQUITY ARE FUNDAMENTAL PRINCIPLES UPHELD BY THE LAW IN ANY COUNTRY

PROTECTION OF RIGHTS AND FREEDOMS OF COUNTRYMEN DEPENDS ON LAW

ORDER AND STABILITY OF A COUNTRY DEPENDS ON LAW

Law Frim in Bangladesh