Caretaker government reform: Constitutional ambiguities

American constitution, even after 200 years of trials and tribulations, is still going through amendments to match the changing times and tastes of the new generations. After about 14 years of parliamentary system, democracy in Bangladesh is still spawning and no one can predict how many amendments and provisions would come along as new generations take the leadership while the old ones watch from the sidelines and wonder, "Why didn't we foresee this?" However, to bring about changes in the constitutional provisions for the CTG, one needs to look back what culminated in its birth.

At the height of mass upsurge for overthrowing the autocratic regime of General H.M. Ershad in 1990 the opposition alliance of AL, BNP and other parties, collectively innovated the concept of CTG mechanism for peaceful transfer of power as a one-time measure. The then Chief Justice Shahabuddin Ahmed volunteered to assume the office of the vice president and then Acting President (December 6, 1990) and at the same time held the position of the CTG Chief to oversee a free, fair, and impartial parliamentary election in 1991. The BNP won majority of the seats and formed the government. But its large-scale electoral irregularities in the March 20, 1994 Magura by-election sparked almost an unstoppable and unsettling countrywide political unrest. Instead of addressing the demands of the AL, the ruling party foolishly organised a fraudulent and large scale vote rigging election that was boycotted by the AL and marred by low voter turnout. In the face of mass protests, the country came to a standstill and the new BNP government lasted only to enact amendments to the constitution providing for a permanent system of CTG which is still in effect.

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The controversy surrounding the appointment of higher judiciary as CTG chief has now surfaced with many thorny issues and the 14Combined Opposition Party Alliance (COPA) raised its various shortcomings. The Law Minister's contentious rhetoric that the ink has dried solid and 1996 is nine years long past, the CTG provisions cannot be examined and amended is simply nonsensical talks. Further constitutional amendment is a foregone fait accompli and instead of saviour rattling, BNP led Four-Party Alliance (FPA) should start a dialogue with AL as to how to spare the higher judiciary (Article 58C C (3-4)) from being politicised and add amendments to Article 58C of the constitution to pave the way for a fair and square democratic election.

Article 58C(3-4) of the Constitution provides the following alternative scenarios: The last retired Chief Justice will become next CA and in case immediate past Chief JusticeÊ"is not available or is not willing to hold the office of Chief Adviser" his predecessor would be called upon to hold the post.Ê"If no retired Chief Justice is available or willing to hold the office of Chief Adviser" the last retired Judge of the Appellate Division of the Supreme Court will be called upon to hold the office.

It seems the legal interpretation of the words "available" and "willing" have now become pivotal criterion for appointing last retired Chief Justice or any other Judge as CA of CTG. The meaning of "willing", according to the American Heritage Dictionary (AHCD: 2nd college edition) is eagerly compliant, disposed to accept; but the meaning of "available" may have legal tangles and hence is somewhat more complex. According to Random House Webster's College Dictionary "available" is meant to indicate "suitable or ready for use; at hand;" etc. However, the AHCD extends the meaning of "available" to refer to: having the qualities and the willingness to take on a responsibility.

The 1996 BNP lawmakers also provided constitutional escape routes in the event former judges become controversial and unacceptable to political parties. They even thought of an extreme situation when the President would not be able to zero in on a consensus candidate to hold the office of CA. Article 58C(5) states: "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 practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article." However, reading between the lines, we noticed some constitutional ambiguities that need to be clarified and removed, if warranted.

The constitutional ambiguity that needs to be addressed: Is it mandatory for the President to appoint the immediate past Chief Justice as Chief Advisor (CA) of an incoming Caretaker Government (CTG)? If it is so, then why the BNP lawmakers in 1996 envisioned so many alternative provisional scenarios in the event of unavailability of a candidate for the office of the CA?

The prevailing perception of the CTG provisions is that it is mandatory for the President to appoint immediate past Chief Justice as the next CA and in case heÊis unwilling his predecessor would be the next choice. It seems that political parties (including FPA and COPA) subscribe to the view that there is no scope for the President to do anything otherwise except to act as mandated in Constitutional provisions. We are challenging that view and offering an alternative interpretation. We argue that the Constitution empowered the Present not to invite immediate past Chief Justice and other judges in the line of constitutional succession if any major political party objects to their holding the office of the CA. As a consequence, the constitutional provisions authorising the President to appoint the retired Supreme Court judges become outmoded and unworkable.

At the time of incorporating the CTG provisions the former members of the Supreme Court were considered "neutral and non-partisan" and hence most suitable to head the interim CTG. But, if for any reason, a major political party questions their "suitability" or any other non-judicial CA designate, they should be considered "unsuitable" (that is unacceptable, ineligible and hence unavailable) to head the office of the CTG. The raison detre for formation of CTG was not to divide but to preserve the unity of the nation during the transitional periods of power transfer. In our August 7 article we argued that to avoid political crisis and politicising the higher judiciary, the Supreme Court judges as a group can declare themselves unavailable. If that does not come forth, here is a logical alternative as follows:

The CTG's legitimacy to govern arises from the trust and confidence of the major political parties representing the electorates. For lack of perception of neutrality and non-partisanship of people considered as nominee to be CA the legitimacy of the process become compromised and the nominees for CA becomes "unsuitable" and should be considered "unavailable" to hold the office of the CA to the CTG. Allegiance of major political parties is germane to the legitimacy of any CTG. Without participation of major political parties holding a free, fair and impartial election by the CTG would be a far cry and legitimacy of the election results would be questionable and subject to legal challenges. This scenario was coming and Justice Latifur Rahman saw it when BNP boycotted his oath taking ceremony as CTG Chief prior to the 2001 election. That is why the CTG under his tutelage went out of the way to please BNP leadersÊso that they quit questioningÊthe neutrality of the election process at all stages. The obvious outcome of his uneven neutrality stance is the current impasse with the formation of the CTG. In view of our interpretation of the constitutional provisions of CTG, the COPA, in stead of embarking on street agitations, should appeal to the President with millions of signatures not to appoint any Judge as the next CA.

At this stage, the imperativeness of Presidential discretion to invoke the other "options", Article 58C (5) for appointing a CA arises. Since the President himself is an elected appointee of the ruling party, he must rise to the occasion to act like a statesman to appoint a person as CA of the interim CTG acceptable to all major parties. The mechanism for forming a Non-Political Council (NPC), to select a CA as proposed in our August 1 and August 7 articles may help facilitate the process.

At this time, all the precursors of a political crisis are brewing to plunge the country into the vulnerability of a political deadlock reminiscent of the events of 1996. The people deserve fair representation in the political process and in the country's governance and the politicians must converge with the 'tip and transparency' of a crystal prism to achieve these goals.

Abdullah A Dewan is Professor of Economics, Eastern Michigan University and Ghulam Rahman is former Secretary to the government of Bangladesh.