Reform the Caretaker Government Law before the next general election

Can such events happen without a signal from the highest level of the government? Police officials who stood nearby were merely amused by these events. Not a trace is left of the neutrality of the police forces or their respect for law and legal rights. In fact, the police have become a partisan force. Recently, similar incidents took place in Mymensingh. What are we, ordinary citizens, to do under these circumstances? These questions are in every bodies mind. We fought for democracy, installed an elected government and look what happened! The regime has turned autocratic, repressive and corrupt in the extreme. What is the way out of this intolerable situation? Some people talk about an 'unconstitutional' solution. But Bangladesh is not Pakistan. The people have had enough of military dictatorships and one is certainly not looking forward to such wild and adventurous solutions. Indeed, we have no choice but to proceed along the path of democracy.

People, in significant numbers, are saying that the repressive, incompetent and corrupt government must resign forthwith. The government seems to be determined to deny any space to those who are agitating for their resignation. However, peaceful agitation against the government's misrule is a constitutionally guaranteed right of the people. The Pakistani military junta could not prevent the mass upsurge of 1969. Similarly, the present government will also fail to suppress a spontaneous uprising of the common men and women. Just like in February 1996, the government will have to step down to save itself from public wrath. But what will happen after the government resigns? Surely we will have a new general election. Today's article of mine is on this subject. How will the election be held? Regardless of political views, most people want a free and fair election in order to ensure a truly representative and democratic government. In fact, there is no feasible alternative to an elected, democratic government in Bangladesh.

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Begum Zia accepted, much against her wish, the caretaker government system against the background of the nation-wide agitation by the Awami League. She did not believe in the system and resisted the demand for a long time. Only under the pressure of strong and militant public opinion did she yield and accept Awami League's proposal. However, in enacting the law on the subject, she did not consult the Awami League. In fact, as far as I can recall, she passed the law in the Parliament hurriedly without any prior discussion or consultation with political parties, lawyers or members of the civil society. As a result, although the main concept of a caretaker government was accepted, the law remained defective and incomplete. The first caretaker government was established for the election in June 1996. The flaws in the law and loopholes were detected even at that time. Especially, the division of executive authority between the president and the chief adviser caused much confusion and created uncertainty in the exercise of executive power.

Readers might recall that a political crisis was brewing in the country when the president dismissed the then chief of Army staff, Gen. Nasim. At that critical juncture, it was the wisdom, firmness of character and resourcefulness of Justice Habibur Rahman that saved the country. The attempt to install a partisan regime with the help of the military was nipped in the bud. It is now generally recognized that the existing law contains enough loopholes to create conflict with two centres of power in the country-both seeking to influence the course of events. In order to ensure free and fair election, it is essential to do away with the dual authority in the country at a critical transition period. The president must, of course, remain the supreme commander of the armed forces but he should exercise his power as a constitutional head of state, through the Caretaker Advisory Council.

The main defect of the existing law on the subject is that the government holding office can, by careful calculation and manipulation, put a chief adviser in office who is known to be favourable to it and is not neutral. Thus the predictability of the chief adviser's identity makes it possible to manipulate and arrange to have a person of the government's choice. This is precisely what the present government has done. In order to get the man of their choice, the government increased the age limit for retirement for the judges of the Supreme Court. As a result, Justice K M Hasan is sure to be appointed chief adviser when the present government's term expires. We are fully aware that before his elevation to the Bench Justice Hasan was a member of the BNP. During the regime of Gen Zia, Mr Hasan was the secretary of the International Committee of the BNP. Gen Zia appointed him as an ambassador to Iraq. If such a person were to be appointed as chief adviser, the basic principle of the caretaker government's concept would be negated.

Under those circumstances, it would tantamount to committing suicide for the Awami League and other opposition parties to participate in an election when Justice Hasan will head the caretaker government. Latifur Rahman has shown us how the administration can be bent to serve a particular party's interests. No one will be surprised if Hasan follows in the footsteps of Latifur Rahman. In order to encourage the opposition political parties participation in the election, some one other than Justice Hasan ought to be appointed to this office. But this is not possible without reforming the existing law. Here lies the root of a major political crisis. It is very doubtful if the opposition political parties will agree to participate in the elections with Justice Hasan as the chief adviser. If, in fact, they do not join the election, we will face a volatile and unstable situation similar to the one we faced in February 1996. Confrontation and conflict will engulf the nation.

What is the way out of this dilemma? In my view, the consent of the major political parties and their trust is the sine qua non-indispensable condition -- and the basic strength of the caretaker government. Indeed this is the rationale of the system, a pre-condition for its success. Without the trust of the governing party and the principal opposition party in the parliament, the caretaker government cannot be installed through a loophole of the law. After all, a group of unelected individuals are entrusted with the reigns of the government. These individuals have to enjoy the confidence of both the sides of the House. This is the essence of the caretaker concept. Under these circumstances, in my view, the relevant law has to be revised to rectify these defects.

One proposal, (just a suggestion), is to make all the retired judges of the appellate division, including the retired chief justices, eligible for selection as chief adviser. Clearly, this will create a pool of senior persons out of which one may be chosen who happens to enjoy the confidence of both sides. Since the choice will be open to several individuals, it should be possible to settle on one who will be acceptable to both sides. Discussions on the acceptability of a person as chief adviser can be conducted by the president with the participation of the senior leaders from both sides. Such a reform will save the appellate division and the office of the chief justice from manipulation by the ruling party.

The nation is a witness to the manner in which Maudud Ahmad enacted a new law on age limit of the judges in order to get his way. The party agenda appears to the more important to him then the smooth functioning of the country's political system. Of course the BNP will not easily agree to revise the law. They have taken the trouble of amending the law on the retirement of judges with the ulterior motive of having a man of their choice at the time of the election. If they were interested in a fair election they would not have taken these steps. To retain power indefinitely is what they are aiming at and the calculated arrangement about the chief adviser is part of their master plan. In the light of the predictable response from the BNP, the Opposition parties have no choice but to launch an all-out political campaign to force the present government not only to step down but also to agree to amend the relevant law according to an agreed formula.

The formula should include proposals concerning the selection procedure of the members of the advisory council. Latifur Rahman behaved as if he was an elected prime minister and could select his cabinet. Actually, the caretaker concept requires that the advisers be selected in a balanced way on the basis of consultation with both sides. The goal is to reassure the political parties that the chief adviser and his colleagues are truly neutral. However difficult to achieve this goal, this is what we have to aim at, not the type of group selected by Latifur Rahman. If the BNP-Jamat government is genuinely interested in a democratic system in which elections will be free and fair, they should accept these suggestions. Otherwise they will opt for confrontation and conflict that nobody wants.

Any proposal for reform of the caretaker government must include new ideas about the election commission. We should reflect on the fact that the election commission in India is an institution that every body respects. Regardless of the changing political fortunes of the political parties, the election commission continues to enjoy the confidence of the whole nation. In the last election the BJP lost and the Congress party won. Volumes have been written on the reasons for BJP's debacle but not one word of criticism of the election commission. We should aim at a similar situation but the existing condition does not inspire much hope. One may recall the recently held Dhaka-10 by-election and reflect on the spineless manner in which the commission surrendered its authority. Democracy in Bangladesh will not take a firm root and gain in strength unless the electoral arrangements inspire confidence of the political parties in the country. Instead of sitting on the fence the press and the civil society ought to participate in the process of mobilisation of public opinion in favour of reform. The task should not be left only to the politicians.

Shah A M S Kibria is former finance minister and presently an AL MP.