Do we need a Care-taker government?
Since the last care-taker government took almost two years to allow the Election Commission to hold the 9th parliamentary elections on 29th December, instead of three months, the system of the care-taker government has been seriously questioned as to whether it should remain or not as it failed to achieve the desired objectives.
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 cast aspersions on the bonafide role, not only of the head of 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 before the public.
The system of the Care-taker government suffers from major fault lines which are as follows:
(i) 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.
(ii) 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.
(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.
(iv) For example, 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.
(v) The Advisers though appointed by the President cannot be dismissed unless they resign themselves. It is a departure from any system of government.
The Constitution of 1972 has been amended 14 times as of today, often to suit the political agenda. 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 whatever the powers of the President had, they had been totally marginalised by the 1991 Twelfth Amendment Act. It is believed that untramelled powers of the Prime Minister as an executive head of the government have been the source of political ills characterised by gross abuse or misuse of power..
Accordingly, it is suggested that a Constitution Review Commission may be set up to examine many provisions of the Constitution that seem to be contrary to the spirit and letter of multi-party democracy.
The system of the care-taker government may be abolished and one of the suggestions is to incorporate the following provisions of the Constitution:
First, as soon as the parliamentary election date is announced, a national government of all parties represented in the last Parliament will be constituted with no policy-making powers. This means that the government would turn into a care-taker mode, discharging routine functions.
Second, the tenure of the national 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 to implement the code of conduct for party-candidates in terms of the Representation of the Peoples Order 1972 as amended.
The bottom line is an unelected government has no place in democracy and the Commission may devise some mechanism to ensure credible elections in the country.
By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva.
