Conceptual understanding of Caretaker Government

[This was prepared and presented by this author as lecture at the Department of law and Human Rights, Asia Pacific University on 13 April, and then was published in part one  and two on 06 and 07 May 2012 in the Financial Express, Dhaka, Bangladesh].

In a democracy a dissolution of parliament by reason of  expiration of its stipulated timeframe or  by  reason otherwise and constitution of a new one accordingly through holding of a general elections are deemed to be conditions precedent for a transfer of power from one elected government to another elected government in a peaceful and ordered manner. Space between such dissolution and constitution of Parliaments is called ‘Interim period between the immediate past and the immediate next Parliaments’ and so the government that leads during this interim period goes by the name ‘Interim Government’

Caretaker means one that temporarily performs the duties of an office say, the government resigned, but the premier served as caretaker until new leaders could be elected.  Hence, both from objective and operative standpoints, an interim government is  organically a  caretaker government since it is entrusted with a package of designated assignments to look after so that a free and fair atmosphere prevails under all the circumstances for holding a general election to Parliament conducted by Election Commission independently. Therefore, the taxonomy of such government deserves to be marked befittingly as ‘Interim Caretaker Government’, although, in practice, popular and customary exercise is simply ‘caretaker government’ or ‘interim government’.

Here a line of demarcation has to be maintained and carried out with all sorts of correctness and fairness that it is the EC which conducts elections being free from any pressure, influence, temptation or bias, political or administrative or otherwise under all the circumstances, favorable or not while the tasks of caretaker government are to aid and assist EC in creating a congenial and peaceful atmosphere under which a free and fair elections to Parliament may be held duly and timely. Therefore, holding of elections peacefully, fairly and neutrally is never possible if there is any gap or non-cooperation between these two pillars of democratic and constitutional orders. If a CTG fails to create and ensure expected level of free, fair and peaceful environment for holding elections within the timeframe of say, 90days, it shall not be possible on the part of EC to hold and conduct elections accordingly. That’s why CTG and EC should equally be discussed, weighed and empowered to suit the very purposes of holding elections to Parliaments, immediate or remote.

Again, this caretaker government of interim period may be given birth to in two ways. One is caretaker government under a party/alliance-run leadership and the other is caretaker government with the leadership of non-party, neutral persons. In case of the former, it is usually the immediate past party/alliance in power, which has been in prevalence as a conventional practice in UK, Canada and New Zealand and which has later been adopted either as a convention or a constitutional provision by the countries that follow such democracy in their respective perspectives. In case of the latter it may be a consensus formula or a constitutional provision which was first coined and applied by Bangladesh in 1990(initially, it was taken as a consensus formula for the purpose of leading the caretaker government headed by Justice Shahabudin Ahmed during the period of elections to 5^th Parliament and then, after the constitution of the 5^th Parliament, got validated constitutionally by the 11^th Amendment to the Constitution. Thus, unlike Non-Party, Neutral Care-Taker Government inserted in the Constitution (Thirteenth Amendment) Act, 1996 of Bangladesh, it was a political consensus that later resulted in a constitutional frame of support) and was subsequently tailored by Pakistan in1993, South Africa in 1994 and again by Bangladesh in 1996 in particular. In fact, each and every system of CTG, upholding the fundamentals to the best of its capacity and cavity, emerges at the end as a product of the overall political landscapes of the country which adopts, follows and maintains it.

Political science carries also a record of caretaker government by consensus, which was floated under the captainship of Winston Churchill in UK after the Second World War in 1945 at the backdrop of the brake-up of his wartime coalition government. The very purpose of it was to continue until the entering of a new PM after the constitution of Parliament. If it is accepted as one different from that of a caretaker government by immediate past party in power, then the number of such government shall increase from two to three. On all counts and analyses, despite some variations, it falls within the fold of party-run caretaker government. Highlights on the two may be summarized as follows:

Essentials of Party/alliance -run Caretaker Government

It is instituted to lead and run the administration during the space between dissolution of parliament and constitution of new one through a general election to legislature with a view to maintaining the continuity of politico-elective nature of leadership even in running such stopover government. Duration of such government does not exceed ninety days;

a.       Immediate past party/alliance in power takes the leadership of such government.  For example, clause (4) of the article 56 of the Constitution of Bangladesh reads:’ Between a dissolution of Parliament and the next following general election of members of Parliament, the persons who were such members immediately before such dissolution shall be regarded for the purpose of this clause as continuing to be such members’.

b.       Members of  the Cabinet or Council of Ministers are allowed to take part in the next following elections and neutrality as such is not considered as a condition precedent:

c.       Its main purpose is to ensure a free, fair and peaceful atmosphere for holding elections to the next legislative body conducted by the Elections Commission independently. Here the questions of non-interference with the administration and Election Commission and non-manipulation of elections results are very important. All these must have to be ensured without any bias or favor and manipulation or riggings. Under all the circumstances, it is a pledge-bound duty as well as constitutional or conventional  obligations for  such  government/ to keep and uphold its standing and image clean and transparent to all at home and abroad including the electorate first of all;

d.       In doing so, it shall confine itself to the routine functions only to run the day to day administration. No policy matters shall be dealt with by it;

e.       It will not make any annual budget which necessarily involves mobilization of resources, embarking upon big projects, foreign aids and  large scale diplomatic initiatives, bi-lateral, regional or international;

f.          If there is any national crisis or catastrophe like natural disaster or war , it shall face the situation having talks with the major political parties, in particular, giving due attention to the parties who had representation in the immediate past  legislative body;

g.       Its longevity expires on the day on which, after the elections so fixed and constitution of  Parliament accordingly, a new party-run government(meaning in a narrow sense, Cabinet or Council of Ministers) headed by a Prime Minister) is appointed and sworn-in by the President  following conventions or constitutional provisions therein

Essentials of Non-Party, Neutral Care-Taker Government

It is instituted constitutionally, not conventionally to lead and run the administration during the space between dissolution of parliament and constitution of new one through a general election to legislature with a view to maintaining the continuity of non-bureaucratic leadership in running such stopover government even. In fact, its nature and mode of formations, compositions and the persons who can be appointed as its head and members are duly inserted in the constitution concerned. 13th Amendment to the constitution of Bangladesh, which has recently been repealed, may be a glaring example of it;

Non-Party, Neutral persons take the leadership of such government.  Non-party implies that they are not members of any political party or of any organization associated with or affiliated to any political party, .Neutral denotes that Members of  the Cabinet or Council of Ministers are not allowed to contest the election and as such neutrality in this regard is considered a condition precedent;

And excepting the above essentials, objectively and operationally there lies no notable difference between Party-Care-Taker Government and Non-Party, Neutral Care-Taker Government as their objects and functions are similar, and founded upon the same standing.

An overview on the genesis of Non-Party, Neutral Care-Taker Government

The very concept of Non-Party, Neutral Care-Taker Government is a new addition to politics and political science, which grew and developed  in  the environment of outright trampling and rejection of voting rights of the people of Bangladesh first during the period of 19 89-1990 and then during the interlude of 1993-1996 in particular. Elections to the 2^nd, 3^rd Parliaments were held under the military regimes of Zia and Ershad and elections to the 4^th Parliaments, widely called a Parliament without support and participation of the electorate (voter less Parliament) were held under the so-called civil administration of soldier turned politician H/M. Ershad. In all the elections riggings, manipulations and interferences by the government (military junta or ruling party) were so massive and extensive that the verdicts of the people were twisted and suppressed in favor of the regime or party in power in the true sense of the term. Elections to the 4^th Parliament nakedly gave birth to the concept of ‘GHM’ meaning Gunda(hooligans), Honda (motor bikes)and Monda(explosives) in place of ‘I will cast my vote to whomever I like’  became principal instruments for winging an election to any elective body from local to national scales and dimensions.

At the backdrop of such political landscapes created by the’ interim government’ headed by Ershad at the dire negation of the very spirit and characteristics of an interim government, political parties, student organizations, civil societies, professional bodies, groups and associations of various forms, natures and dimensions  raised their voices strongly, got united to restore their voting rights with a slogan ‘I will cast my vote to whomever I like’ and vowed to oust the so-called democratic government of Ershad. All the alliances in the opposition folds mainly the alliances under  the leaderships of Sheikh Hasina and Khaleda Zia finally got united the beneath of  7- point formula where one of the demands was the formation of a non-party, neutral care-taker government in place of party-run interim government to ensure a free and fair atmosphere for holding elections to Parliament conducted by the Election Commission independently.HM Ershad agreeing  with the seven point demands resigned from the office of the President of Bangladesh and handed over power to Shahabuddin Ahmed, then sitting Chief Justice of Bangladesh, who became the Head of the first non-party, neutral CTG on 06 December 1990. Other members of it were also non-party and neutral and none of them contested the election to the 5^th Parliament.

BNP led by Begum Khaleda Zia was voted to power who formed the Government with a support of Jamaat-e-Islmi( the elections produced a hung Parliament because no party scored the simple majority of 151 seats out of the 300 seats in the House). AL and its alliance rejected the results saying that a kind of deep conspiracy and rigging took place to defeat the AL.

Shabuddin’s government, from the legal point of view, was unconstitutional, which, in absence of any constitutional back-up at that time, came into being by reason of a political consensus between or among the political parties. To overcome this, Fifth Parliament unanimously passed the Constitution (Eleventh Amendment) Act of 199 validating, .inter alia, the functions of Shahabuddin’s CTG. This amendment only validated the functions done during the regime of Shahabuddin paving way further for his going back to his original office of the Chief Justice of Bangladesh. No step was initiated by the ruling BNP to accommodate the concept constitutionally for elections in future.  Oppositions soon started voicing the demand for its immediate insertion in the constitution. In 1993 first Jammat-e-Islami then AL and JP submitted their respective Bills for caretaker government, all of which was set aside by the ruling party branding it unconstitutional and illegal. Khaleda Zia even did not hesitate to pass a comment by saying that only an insane could think of being and reaming neutral.

Political landscapes at this phase became overshadowed again centering a number of issues political or otherwise and speedily developing widening chasm between the ruling BNP and the major opposition in Parliament led by Sheikh Hasiana reached at a point of no return.  Unprecedented manipulation and rigging by the ruling party in Magura bye- election generated a turning point boiling and maturing the demand for a non-party, neutral care-taker government before elections to the 6^th Parliament. Chronic boycott of the sessions of Parliament finally culminated and resulted in the resignation of about 147 MPs on 28 December 1994. Almost all the political parties including Jamaat-e-Islami and civil societies, think-tanks, NGOs, professional bodies and associations of various natures, forms and dimensions became united like a solid rock. ‘Janata Mancha’(Dias of the people) headed by the then Mayor of Dhaka City Corporation Mohammad Hanif emerged as a leading vein in the whole chain and process of the mass upsurge and movement comprising of people and bureaucracy at large, first of its kind in independent Bangladesh.

In the face of all these, President upon an advice in writing under article 57(2) dissolved the 5^th Parliament on 24 November 1995 and fixed a date for elections to the 6^th Parliament on 15 February 1996.The election was boycotted by all the opposition parties. But the ruling party proceeded to contest with sudden hand-picked parties as Ershad did in 1989.The announcement of the result of the election added fuel to the fire-like movement. Country-wide non-cooperation movement was launched demanding the fall of the government and the dissolution of the 6^th Parliament. This Parliament had had a life of seven days only because Khaleda Zia, understanding the pulse of the people, lastly accepted the demand and BNP Government introduced the Non-Party, Neutral Care-Taker Government Bill (the 13^th Amendment of the Constitution on 21^st March at the first session of 6th Parliament. It was passed on 26^th March and became law on 28^th March and it came to be known as the Constitution (Thirteenth Amendment) Act, 1996. Parliament was then dissolved immediatelyon 30^th March and Justice Habibur Rahman, Shelly, then immediate past Chief Justice of Bangladesh, was appointed as Chief Adviser of the caretaker government in accordance with the provision envisaged in the Amendment.

Important features of Non-Party, Neutral CTG contained in the 13^th Amendment (now repealed)

Concept, nature and composition of Non-Party, Neutral Care-Taker Government which was detailed in the Constitution (Thirteenth Amendment) Act of 19996, Bangladesh (which has been repealed the by Constitution (Fifteenth Amendment) Act of 19996) may be summarized as follows:

·         There shall be  a Non-Party, Neutral Care-Taker Government during the period from the date  on which the Chief Adviser of such government  enters upon the 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[article58B (1)]. Therefore, this interim/care-taker government  is non-political and neutral in character;

·         The duration of such non-party, neutral CTG shall be 90 days only;

·         Regarding the composition of such Non-Party, Neutral CTG, it is stated that it shall consist of the Chief Adviser at its head and not more than ten other Advisers, all of whom shall be appointed by the President[art. 58C(1)]. Therefore, this made it clear that ,unlike the interim/caretaker government, the title/taxonomy of the head of this government  shall be  ‘Chief Adviser ‘ in place of Prime Minister’ and ‘Advisers’ in place of Ministers;

·         There are four modes of appointment in sequence to the office of the Chief Adviser which are----

1.       He shall be made from among the  retired Chief Justices  of Bangladesh who retired last and who is qualified to be appointed as an Adviser provide d that in case of non-availability of such choice, the President shall appoint as Chief Adviser the person who among the last retired Chief Justices of Bangladesh retired next before the last Chief Justice[art. 58C(3)];

2.       In case of  non-availability of any choice under this clause,  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[ art.58C (4)]; and

3.       In case of non-availability of any choice  under this clause, 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 [ art.58C(5)]; and

4.       In case of non-availability of any choice  under this clause , the President shall assume the functions of the Chief Adviser of Non-Party, Neutral Care-Taker Government in addition to his own function under this constitution[art.58C(6). This is, in fact, a choice in sequence, not in alternate;

·         About the qualifications for the office of  an Adviser it is inserted  in article 58C(7) that  the President shall appoint Advisers from among the persons who are—

(a)     qualified for elections as members of Parliament;

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

(c)     not, and have agreed in writing  not o be candidate  for the ensuing election of members of Parliament;

(d)      not over seventy years of age;

·          Matters related to Defence Services shall as per article 61 be under the exclusive jurisdiction of the President. Thus a kind of dual administration has been given birth to.

Post-Non-Party, Neutral Care-Taker Government in Bangladesh perspective

But, as ill luck would have it, all the results of three elections took place under this system in Bangladesh from 1996 to 2008 including the Shahabuddin’s one in 1991 were rejected by the defeated parties on the same old grounds of riggings, manipulations and conspiracies and therefore, it became clear to all that elections even under this type of government failed to resolve the issue of a free and fair elections to Parliament. Interestingly enough, to influence the composition of the CTG with an aim to influence the result of the elections, both the elected governments of BNP and AL had tried in the past to promote their loyal judges to the post of Chief Justice, superseding the seniors. Such attempts were made in 2001 and 2006. Dirty play was played  in favor of Justice KM Hasan who superseded Bazlul Karim and Ruhul Amin and for whom even age was increased to 67 from 65 by the then ruling BNP in 2004. For this he was not accepted by the major opposition AL and allies as the constitutional choice of   next CTG and in face of serious negation and movement he had to decline to hold the office of the Chief Adviser in 2006.

The greatest deadlock occurred on 27^th October 2006 when President Iajuddin Ahmed took over as Chief Adviser of caretaker government following the clause (6) of  article 58C of the Constitution first without  due exercises of the clause (3)  and then without paying  any heed and attention to the clauses (4) and (5) thereto . These were gross violations of the Constitution. Furthermore, in the wake of the failure of Iajuddin Ahmed’s CTG after the expiry of 75 days out of the timeframe of 90 days, although the institution of army-backed CTG headed by Fakruddin Ahmed on 13^th January 2007 to suit the purposes was a historic event in its toality, to speak the truth, it took another one and a half year to create a free and fair atmosphere for holding elections to the 9^th Parliament and EC finally succeeded in doing so on 29 December 2008. It came to an end on 6 January 2009 upon entering of Sheikh Hasina as Prime Minster after the constitution of the 9^th Parliament. It was another violation from the point of view of duration. Khaleda Zia rejected the results in the old tone and fashion. Today the 9^th Parliament is practically a parliament without the presence and role of major opposition BNP and its allies as they are boycotting the sessions of parliament on a number of grounds, understandable or not understandable, since the very first session. Therefore, the concept of a viable parliament consisting of the Treasury bench, Opposition and President is still a parliamentary mirage.

There is no denying the fact that the matters related to reforming the Election Commission and thus making it stand on a solid constitutional footing decorating it with all the necessary inputs administratively and financially are not well discussed and debated by the major political parties in Bangladesh neither in Parliament nor outside it. Everything has got stuck up in the vicious circle of a non-party, neutral caretaker government more emotionally and romantically than realistically indeed in a sense of perception and implementation as if establishment of such government is both an ends and means to achieve the targets. Both AL and BNP have to visualize the whole thing from national interests and perspectives going above so-called party or group interests. People have done their part by electing and thus sending them to parliament to sit there together and talk and debate and propose and counter propose and reach thereby at conclusions on issues of national, bi-lateral and global importance depending on time, space and dimension. They must have to show in practice that they are very much committed, sincere and transparent about their part as a party in power as well as an opposition in parliament, which they are bound to comply with both politically and constitutionally. Leveling allegations of rigging, manipulation and hidden conspiracies against the party in power by the opposition and beating drums all the time sidetracking its coveted role in performing its obligated duties to the nation and the state cannot be fair at all. Democracy does neither mean doing anything disregarding the people if once voted to the seat of power nor does it mean doing nothing if voted to the seat of opposition. To our utter surprise, one may agree or not, unlike India and even Pakistan largely, this is a reality in today’s Bangladesh.

SC’s verdict and repeal of the Non-Party, Neutral CTG

At the backdrop of all these,  Appellate Division of the Supreme Court of Bangladesh declared the caretaker government system  illegal and void on 10 May 20011. ‘A seven-member SC panel, headed by Chief Justice ABM Khairul Haque, reached the verdict on majority vote. It thus also rejected a 2004 High Court ruling that upheld the 13th amendment to the constitution. The High Court ruled the system legal after a Supreme Court lawyer M Salimullah challenged the 13th amendment in January 2000 in a writ petition saying the change distorts the principle that the republic will be governed by an elected government. After Salimullah's death, another Supreme Court lawyer Abdul Mannan Khan filed an appeal in June 2005 against the High Court ruling in the Supreme Court’.

In its brief verdict the Supreme Court said, "The Constitution (Thirteenth Amendment) Act, 1996 (Act 1 of 1996) is prospectively declared void and ultra vires the Constitution."

"The election to the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment," it said.

"The parliament, however, in the meantime, is at liberty to bring necessary amendments excluding, the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the Non-Party Care-taker Government," the verdict added (Daily Star, May 11, 2011).

The Awami League-led government did not wait to get the copy of the full texts of judgment. Rather on 30 June 2011 it speedily scrapped the caretaker government system through amending the constitution [Constitution (Fifteenth Amendment) Act of 2011]. In its opinion, an “illegal system cannot be kept in the constitution’. Prime Minister Sheikh Hasina categorically asserted that elections to Parliament in the coming days should definitely be held in accordance with the established norms, practices and constitutional legacies of a parliamentary system of government. Boldly she sounded and warned that with a shameless expectation of meeting with more bitterness, pains and frustration in the name of so-called neutrality as demonstrated and set in the past, no non-party, neutral persons would be called for to run a caretaker government in future. She is now of the opinion and firm conviction that the tasks of politicians must have to be done by politicians themselves whatever the circumstance might appear to be. It is also to be noted here that all the possible doors to the usurpation/grabbing of power by the defence forces anyhow in the wake of any political catastrophe or deadlock have meanwhile been closed by the Article 7A of the Constitution (Fifteenth Amendment) Act, 2011. Supreme Court also declared 5^th and 7^th amendments illegal and void from the points of views of their declaration of martial laws in 1975 and 1982.

BNP led alliance and other oppositions outside the AL- led grand alliance criticized both the Supreme Court’s verdict stating that any issue of politics should better be resolved through the process of politics, not through the media of judiciary and the scrapping of the system by the ruling grand alliance unilaterally by virtue of its brute majority in the Parliament and demanded its immediate restoration before elections to the 10^th Parliament. Khaleda Zia declared at a mammoth public meeting at Dhaka on 12 March 2011 that there would be no elections in Bangladesh without a caretaker government and even if there was any such move by the ruling alliance in that case BNP and its allies would resist it anyway.

In a similar vein at a public meeting held on 14 March, which was a kind of counter- show of grand alliance’s political strength to the BNP’s grand rally, Prime Minister Sheikh Hasina roared uttering that elections should be held under a party-run government and all possible sorts of aids an assistances to the Election Commission striking more pragmatic reforms accordingly would be made furthermore to suit the very purpose of holding a free and fair general election to Parliament in future.

Above all, those who directly or indirectly matter in the politics and development of Bangladesh notably donor countries and agencies like the United Nations, USA, EU, Japan have meanwhile registered their anxieties  and requested, and are still requesting seriously, both the parties to settle the burning issue through dialogue and political tolerance, understanding and acumen. It is believed for a number of reasons that here India’s role is vital, which she plays mostly behind the curtain. Today AL is not the only ally of India. India’s rapport with the rightist bloc headed by BNP is a new development and dimension in the politics of Bangladesh and the long-established notion of Indo-phobic Bangladesh at the mass level and India-friendly Bangladesh at the government level is being marginalized in the context of various national, bi-lateral, regional and international necessities, cooperation and compulsions. Now it’s a reality that India is a continental power and the rapidly growing India-USA Relations is a turning point also for Bangladesh.

Now it is yet to be seen in practice what actually happens in the days ahead of.