Reforms and caretaker government

The system of caretaker government was formally introduced during the 1996 election of the parliament, though the 1991 election conducted under a caretaker government was so done as a sequel to political compromise but only on one time basis. This unprecedented system designed to ensure impartial election was, unfortunately, a product of enormous distrust prevalent among our major political parties and the outcome of a long and painstaking search for a solution acceptable to all concerned. It is ironic that the principal political parties, who are committed to the principle of democracy, yielded to the institution of caretaker government, which is basically a non-elective and thereby an undemocratic apparatus. They accepted its rule, albeit for a brief period of 90 days prior to each election.

The most important element of the caretaker government is neutrality, which must be observed in carrying out its functions. Ordinarily, in most democratic countries, following announcement of the election schedule the outgoing government acts as a caretaker government and conducts election till the inauguration of a new government. The outgoing US Administration continues to govern for as long as almost three months after the election is over.

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The formula consisted of the last retired Chief Justice of the Supreme Court to act as the Chief Advisor of the caretaker government who would thereafter choose his fellow members of the Advisory Council. There is no constitutional requirement for the Chief Advisor to consult with political parties on the matter of selection of his advisors. Anyway, he received lists of candidates suggested by the two major political parties for consideration. The two elections that were held in 1996 and 2001 under the caretaker governments were universally recognised as fair and impartial, though the defeated parties promptly made mild allegations of rigging before finally yielding to its outcome. Only lately, the main opposition party, the Awami League and its associates, made a demand for reform of the caretaker government system. The concept of the caretaker government, though originally advanced by the Jamat-e-Islami party, was later taken up as the prime force of movement by the opposition Awami League during the second half of the BNP regime established in 1991. The movement was spearheaded with that sole demand and won support from people far and wide. The ruling BNP opposed it on the plea that the demand was unconstitutional, as no such provision for establishment of caretaker government existed in the constitution. But in the teeth of heavy demand and intensive movement the BNP agreed to make the requisite amendment to the constitution. But all the Awami League members of the parliament had already resigned as a body and the necessary two-thirds majority was not available to amend the constitution.

The two sides then decided to appeal to the Chief Justice soliciting his opinion about the possibility of taking some extra-constitutional measure in order to avert the national crisis. But at the last moment the Awami League retracted from the envisaged compromise and decided to continue with the movement to force the government to resign prematurely. The BNP, however, was able to hold on to the last and held an election in February 1996 in order to get a two-thirds majority of seats necessary to amend the constitution. Since the Awami League boycotted the election, the BNP and its coalition partners easily bagged over two-thirds seats. The amendment was passed in a marathon session in one night before dissolving the parliament, thereby providing the legal basis to hold the next elections under caretaker government. To manifest its resolve, the BNP bestowed permanence on the caretaker system in contrast to the Awami League's demand for its operation during three consecutive elections.

What then prompted the Awami League to demand replacement or modification of the system for the introduction of which it had organised such a massive and prolonged political movement earlier? The present demand appears to have been related to the acceptability of the person, who is expected to be the Chief Advisor supervising the next general election. Under the existing system, the Chief Advisor must be the last retired Chief Justice. If he is unwilling or unable to take office, choice will fall on a member of the Appellate Division of the Supreme Court and failing which a person chosen in consultation with the major political parties.

The Awami League became unhappy with the person of the next Chief Advisor following government's recent decision to raise the age of retirement of the Judges of the Appellate Division, hence the demand for reform. The opposition party apprehends that as he had been appointed as Chief Justice by the BNP government by superseding some other Judges, he might unduly discriminate in favour of the BNP during the next election. However, it is worthwhile to note that the Awami League itself had earlier superseded the same Judge in order to promote to the Appellate Division some other Judges of its choice. The BNP may claim it had merely righted the wrong done earlier by the Awami League.

The Awami League quarters have been highly critical of Justice Latifur Rahman as Chief Advisor of the caretaker government in 2001. He was alleged to have been discriminatory and was at beck and call of the BNP high command. What he, in fact, did was to transfer some government officials against whom either of the political parties had reservations about their fairness and impartiality, but he never replaced them with officials suggested by any party. He may also have recommended to the President for issuance of some Ordinances, but mostly after consultation with the Election Commission with a view to facilitating the latter's work. However, nothing would prevent the elected government to repeal such ordinances promptly.

Furthermore, there exists no motive for a retired Chief Justice to deviate from the set standard of justice and fairness in dealing with different political parties. Neither he nor any other Chief Advisor has since taken up any job under the government of the victorious party. For that matter, no Advisor has got a job subsequently which may bear semblance to acts of gratitude to their alleged mentors. It is, no doubt, most unfortunate to politicise the highest organ of the Judiciary of the country which should not only be fair and just in delivering its judgment and advice, but carries the solemn duty as guardian and defender of the constitution of the land. Casting aspersion on judges would demean this noble body, which again has been infested with the entry of some controversial figures, both on political and ethical grounds. Appointment of judges on political consideration and in large numbers must be shunned in order to maintain the respect, neutrality and effectiveness of the highest rung of our Judiciary. As for the replacement or modification of the caretaker system, there could be a few alternatives. Firstly, one may revert back to the old system under which the outgoing government would conduct election. This was precisely the system to change which the Awami League had led the countrywide movement for introduction of the caretaker government and, therefore, will be more severely opposed by the Awami League itself.

The second possibility would be selection of impartial and highly respected personalities to constitute a neutral caretaker government by way of consultation and mutual agreement of the major political parties. Alternatively, any other formula acceptable to them would serve the purpose. But this is also most unlikely to hold good. If there were scope for a compromise, there would have been no need to demand for the caretaker government system originally. After all efforts through inter-party talks failed since 1992, the Commonwealth facilitator Sir Ninian Stevens came to Bangladesh in 1994. But all his month-long hard work to effect a compromise between the two major political parties came to naught. Earlier, along with a friend of mine from the opposite camp we came out with a formula for solution, on the Kurmitola Golf Course, only to be rebuffed later by our respective leaders. Both the Ninian Mission and the golf diplomacy suggested various formulas and lists of personalities to the two parties, but to no avail. It was in stark contrast to the success of the ping-pong diplomacy.

Also much later, during Shaikh Hasina's tenure as Prime Minister an attempt was made to secure acceptance of a compromise formula on some fundamental issues by President Justice Shahabuddin Ahmed, and I was to take the same to the then Leader of the Opposition. But the Prime Minister thereafter publicly advised the President not to meddle in politics. Unfortunately, when our leaders turn their face away from each other even while being seated on the same sofa, chances of any compromise through consultation between their parties are almost destined to be an exercise in futility. The third possibility may be that the Chief Advisor may appoint an equal number of advisors suggested by the two major political parties. Such an arrangement, one apprehends, would curb authority of the Chief Advisor, entail chaos in the Advisory Council and hinder its smooth functioning. Again, any or all such measures to modify the existing system of the caretaker government would call for constitutional amendment, which again presupposes agreement among the major political parties. Of course, one can empower the Election Commission and make it truly independent by way of providing it with sufficient funds to be used at its discretion and with the authority of appointing its own personnel. However, as all governments showed definite reluctance to implement their pledge on this issue while in office, it may be worthwhile to seek their agreement now and enact necessary legislation, which would, however, be effective only after the next election.

So, it is difficult to suggest any new method of reform that would make the existing system of the caretaker government more neutral and effective. One may recall that Justice Shahabuddin Ahmed and Mr. Abu Sayeed who had been appointed and adored by the Awami League as President and Chief Election Commissioner respectively, later fell from grace and were severely criticised by the Awami League. So, since a favourite may lose his charm and become unacceptable, by the same logic an un-favourite may likewise be a favourite and acceptable to the same political party later. Furthermore, the nation should expect to get justice, which contains the inherent attribute of neutrality, from a Chief Justice, even though he had retired. His political background should not be held against him in which case all students with political affiliation would smack of partisanship and become suspects when they join state services. His real test would lie in his record as a judge and I am not aware of any of his judgments or actions which can substantiate claims of unfairness or partisanship. However, one is free to appeal to him not to accept the post of Chief Advisor, but it would depend upon him entirely to reject the offer of the prestigious position or not.

Finally, in the absence of a suitable alternative acceptable to the two major political parties, it would be in the national interest to expect that the caretaker system, which conducted two general elections in the past, both fairly and impartially, should be allowed the opportunity to prove its mettle again in future.

M.M.Rezaul Karim, a former Ambassador, is a member of BNP's Advisory Council.