Caretaker government: Reform is necessary

In the last six months, various political parties, civil society, media, NGOs and even our expatriates have given their valuable opinions and recommendation for a free and fair national election.

I whole-heartedly agree with them. Although the above mentioned problems have been with us for years, these have, however, over the last three and half years, given us more pain than ever before. These problems have seriously affected our image internationally and have brought the country to the brink of collapse. In order to save the situation, a truly free and fair national election is a must, and to hold such an election, necessary changes in the Constitution regarding the neutral caretaker government (NCG) and the Election Commission are essential.

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Today, almost everybody agrees on the requirement of reforms in the Election Commission (EC). I think a down-to-earth discussion would find them agreeing on the essential changes required in the EC. However, the government has not yet accepted the demand of Constitutional changes required in respect of the NCG. The following may be the reasons for such a stand of the government:

*The present BNP-Jamaat coalition wants to use the loopholes present in the NCG provisions to their benefit as they did in 2001 election.

*The present government wants to judge the seriousness of the opposition regarding their demand for reform of the NCG.

*The present government does not understand or does not want to understand that the previous caretaker government had actually violated the Constitution and did not conduct a free, fair, and neutral election.

In this write-up, I have tried to identify some of the cases of violation of the Constitution by the caretaker governments of 1996 and 2001. I hope that the government and all political parties would consider this and take necessary actions to ensure a free and fair election in future.

Within an hour of being sworn in as the Chief Adviser (CA), Justice Latifur Rahman posted thirteen secretaries of various ministries which violated Article 58C(1) of the Constitution which reads, "The Non-party Caretaker Government shall consist of the Chief Adviser at its head and not more than ten other advisers, all of whom shall be appointed by the President." The caretaker government is officially formed once the President has appointed the CA and all the ten advisers, and thus can act only when it is completely formed. Justice Latifur Rahman, singularly, had no authority to post out secretaries or government officials.

The then President, Justice Sahabuddin Ahmed, did not stop the CA. He, by his inaction also violated Article 48 (2) of the Constitution which reads, "The President shall, as Head of State, take precedence over all other persons in the State, and shall exercise the powers and perform the duties conferred and imposed on him by this Constitution and by any other law." The Advisers also did not object to such a violation, and thus violated the Constitution themselves, too.

Article 58D(1) of the Constitution reads, "The non-party Caretaker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the service of the Republic; and, except in the case of necessity for the discharge of such functions it shall not make any policy decision". Posting of thirteen secretaries also violated this article since such a posting does not at all fall within 'routine function'. So the constitution was again violated. However once the caretaker government was formed as per article 58C(1), the secretary to the Election Commission could have been removed if it was required in the interest of the election, which was not done throughout the tenure of the caretaker government. The thirteen secretaries who were posted out were not at all directly linked with the conduct of election.

The caretaker government during its tenure stopped the implementation of a number of important projects approved by the previously elected Awami League government, i.e. Di-ammonium Phosphate (DAP) fertilizer project, 20 megawatt power plant at Bhola etc, and also decided to undertake new projects. These were not 'routine functions' or necessary 'policy decisions'. The caretaker government is neither empowered to take policy decisions nor to stop policy decision of the previous elected government except in case of necessity for the discharge of election related functions. Thus, Article 58C(1) of the constitution was violated. We have to make provisions so that caretaker governments cannot act in such manner in future.

The present alliance government has unnecessarily created confusion about the appointment of CA as per article 58C(3). Retired Chief Justice K M Hasan was appointed Chief Justice of Bangladesh superseding two senior judges of the Appellate Division, which is unprecedented in Bangladesh. The age limit of judges of Appellate Division was also raised from 65 to 67 years. These measures have made it clear that the government wants to appoint Justice Hasan, who was once a central committee member of the BNP, as the Chief Adviser of the NCG seemingly with ulterior motive. To avoid such a possibility article 58C of the constitution should be amended so that the CA of the caretaker government can be selected through consensus.

As per article 58B(3) which reads, "The executive power of the Republic shall, during the period mentioned in clause (1), be exercised, subject to the provisions of the article 58D(1), in accordance with this Constitution, by or on the authority of the Chief Adviser and shall be exercised by him in accordance with the advice of the NCG Government", the caretaker government is empowered to exercise all 'executive power' of the Republic.

However, as per article 61 of the Constitution, the President has been vested with the authority of the Armed Forces of Bangladesh during the tenure of caretaker government only. It is pertinent to mention here that in 1996 only about 24 days before the national election of 12 June 96, the then President Abdur Rahman Biswas took some 'decisions' regarding the Armed Forces which created a serious situation and was about to disrupt the election. However the then CA Justice Habibur Rahman's deft handling of the situation saved the country from a serious threat to democracy. In order to ensure that Presidents, since they are elected by parties, prompted by partisan interest don't create such threats to democracy in future, article 61 should be amended to exclude "during the period in which there is a Non-Party Caretaker Government under article 58B, be administrated by the President". This will result in full responsibility to the caretaker government of free and fair election and also will vest in them the 'requirement assets'.

It is evident from the above that the last two caretaker governments had violated constitutional provisions. Due to this, the voters were cheated. Many voters were influenced to vote against certain party. And due to all these, the caretaker government of 2001, in particular, failed in conducting a free and fair election.

The nation is paying dearly for these mistakes. In order to solve these problems, Articles 58B, 58C, 58D and 61 need to be suitably amended. I hope, the government, opposition political parties, civil society, media, NGOs and citizens would realise the depth of the problem and take suitable steps at the earliest.

Faruk Khan is an MP and Opposition Whip, Jatiya Sangsad.