The Structural faults of the System of the Care-taker government
On 10th May, the apex court (Appellate Division of the Supreme Court) of Bangladesh in a majority decision has ruled that the system of care-taker government is illegal, However, two more general elections may be held to avoid chaos. It is also ruled that the Parliament is at liberty to bring necessary amendments excluding the provisions of making former chief justices or other former apex court judges as head of the caretaker government.
The care-taker government is a unique institution, only to be found in Bangladesh largely because leaders of major political parties were of the view that the ruling parties could not hold a free, fair and credible parliamentary election as it would be manipulated in the favour of the parties in power.
Three elections were held-in 1996, 2001 and 2009 under the care-taker government. All the elections under the care-taker governments have been judged by losing parties as not free and fair, even when international election observers consider them as fair and free.
Losing parties in our country cast aspersions on not only the care-taker government but also of the President and the Election Commission in not being able to hold free and fair election. Such allegations have tarnished the image of the institutions both inside and outside the country..
Structural Faults of the Care-taker Government:
Many constitutional experts believe the system of the Care-taker government had not been looked into thoroughly as to its feasibility prior to its introduction in 1996. Some fundamental structural faults exist and they are as follows:
(i) While the head of the Caretaker government is a non-partisan person, the President is most likely to be a politically- aligned person, elected by the ruling political party. Therefore, there is a conflict of intent or goal between the politically- aligned President and the non-partisan Chief Adviser in running the care-taker government.
(ii) For example, it is reported that during 1996 the Chief Adviser had some difficulties with working with the President and in 2006, four Advisers had to resign from the Advisory Council because they could not work with the President cum Chief Adviser. This means that if the system were to work, the President would have to be a non-partisan/ non-political person and this may not always be feasible under the Constitution.
(iii) The system of the care-taker government is dyarchic in the sense that powers and functions are divided between the care-taker government and the President. Some constitutional experts say that the system created two separate but potentially conflicting institutions– the President and the Care-taker government. As a result, conflicting opinions between the two institutions may derail the system of the care-taker government
(iv) The Advisers though appointed by the President cannot be dismissed unless they resign themselves. It is a departure from any system of government.
(v) The language of the provisions of the Constitution (58B to 58E) that deal with the system is not precise and definitive and conflicting interpretations could be easily provided leading to illegality of the institution.
The Constitution of 1972 has been amended 14 times as of today and as a result the organic character of he Constitution has fallen apart because many of the amended provisions in some chapters are inconsistent with those of the un-amended ones.
Furthermore there exists an imbalance of powers between the President and Prime Minister. Whatever the powers of the President had, they had been totally marginalised by the 1991 Twelfth Amendment Act. It is believed by constitutional experts that untramelled powers of the Prime Minister without any checks and balances are not conducive for promoting parliamentary democracy in the country.
The constitution is a working document. Forty years have passed in which certain provisions of Bangladesh constitution are found to be weak and do not reflect ground realities and therefore new provisions need to be added or existing ones be amended or deleted as well to suit changed situations. In all countries, constitutions are amended from time to time so as to be effective and workable.
At present the parliamentary special committee on constitutional amendments is considering to amend the constitution, in particular following the judgment of the apex court on the illegality of Fifth, Eighth Constitutional Amendments and on the Caretaker system.
Many suggest that given the confrontational nature of political environment, caretaker system should continue. Even the Attorney General supported the system while making submissions to the apex court. On the other hand, some suggest the system of the care-taker government should be abolished because an unelected government has no place in democracy and it is contrary to the basic framework of the Constitution.
Many suggest the following provisions to be incorporated in the system of caretaker government:
First, the representatives of major parties in the parliament may come to a consensus on the neutral person to act as chief adviser
Second the tenure of the Caretaker government shall cease at the expiration of three months and their primary functions would be to assist the Election Commission to conduct fair and free parliamentary elections.
Third,, if elections could not be held within three months because of natural calamities/ act of God, the President shall recall the dissolved parliament that will decide an extra time by which the national government will cease.
Fourth, the Election Commission will have to be provided adequate powers and resources to implement the code of conduct for party-candidates in terms of the Representation of the Peoples Order 1972 as amended.
While revisiting the provisions of the Constitution, the parliamentary special committee may look into the above factors. However, the non-participation by the opposition political party (BNP) in the committee is perceived to have weakened the Committee.
By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva.
