Reforming the non-party caretaker government system

Against the AL-led opposition alliance stand not to go for the reform in the non-party caretaker government, Shah A M S Kibria, minister for finance in the last AL government, in an article published in The Daily Star of 23 November has come with a proposal for reforming the non-party caretaker government law. I quote from Mr. Kibria's proposal. He writes, " One proposal, (just as a suggestion), is to make all the retired judges of the appellate division, including the retired chief judges, 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 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." Mr. Kibria's proposal seems to have stemmed from his two perceived notions. One, his perception that Justice Latifur Rahman, the Chief Adviser of the last non-party caretaker government served "a particular party's interests." Second, his presumption that since the immediate past Chief Justice KM Hasan who "is sure to be appointed chief adviser when the present government's term expires" served as "the secretary of the international committee of the BNP" during the regime of President Ziaur Rahman, he will follow "in the footsteps of Latifur Rahman." So, according to Mr. Kibria, "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." It is most likely that Mr. Kibria's proposal / suggestion will have mixed reactions.

Let us look at the constitutional provision regarding appointment of the Chief Adviser and the Advisers of the non-party caretaker government. The Constitution provides that the President shall appoint as the Chief Adviser the person who among the retired Chief Justices retired last. 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 retired next before the last retired Chief Justice. If no retired Chief Justice is available or 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 last. 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. 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 practical, with the major political parties, appoint the Chief adviser from among citizens who are qualified to be appointed as Advisers. If the above mechanism fails, the President shall assume the functions of the Chief Adviser. The President shall appoint the Advisers, not exceeding ten, on the advice of the Chief Adviser.

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It appears from above that the choice for appointment of the Chief Adviser of the non-party caretaker government has been placed entirely on the retired Chief Justices and the retired Judges of the Appellate Division of the Supreme Court. The appointment of the Chief Adviser by the President from among citizens in consultation with the major political parties is the last choice.

Mr. Kibria's proposal "to make all the retired judges of the appellate division, including the retired chief justices, eligible for selection as chief adviser" does not appear to significantly differ from the existing constitutional provision on the issue. If we closely look at the constitutional provision quoted above regarding appointment of the Chief Adviser, it appears that all the retired Chief Justices and the retired Judges of the Appellate Division have been made eligible for appointment as Chief Adviser step by step. What is a departure in Mr. Kibria's proposal is that he has proposed creation of a pool of the retired Chief Justices and the retired Judges of the Appellate Division to make it possible "to settle on one who will be acceptable to both sides." It seems that by "both sides" is meant the party/ alliance in power and the opposition parties in parliament and outside parliament. In the absence of any law requiring compulsory registration of political parties, it is difficult to say how many political parties we have at the moment. When two major political parties cannot agree on a single point, then "to settle on one" as the Chief Adviser by a large number of political parties, big and small, is anybody's guess.

Since the AL-led opposition alliance's recently announced nine-point charter of demands did not include the demand for reforming the caretaker government system, it may be presumed that the proposal to reform the caretaker government law is the personal opinion of Mr. Kibria. However, if AL wants to revert to its earlier demand for reforming the caretaker government system, it should raise its specific proposal in parliament. But AL will have to think whether that will cost its recent agreement with the left-leaning 11-party alliance, JSD, NAP and Jatiya Janata Party. BNP-led alliance government must not obstruct the raising of such proposal in the House. If a better formula for appointment of the Chief Adviser and other Advisers of the caretaker government is available through discussion in the House, that will be an invaluable contribution to the nation. If a better formula acceptable to all or two-thirds of the total members of Parliament is found, then further amendment(s) to the Constitution (Thirteenth Amendment) Act, 1996 will be a matter of formality. The procedure for amendment of the Constitution is embedded in the Constitution itself (Article 142).

M. Abdul Latif Mondal is a former Secretary to the government.