Reforms needed to make caretaker system more effective

In order to ensure that such government can act independently, provisions were made in the constitution that the retired Chief Justice would become the head of such government supported by other members, who would be appointed by him subject to the approval of the President. Although the Prime Minister and the Cabinet would resign, handing over power to the caretaker government, the President would retain his post as the head of the caretaker government. The retention of the post of the president as the head of the caretaker government was necessary because the administration of the country could not be solely left in the hands of an appointed body even for a short period of time.

The provision of Caretaker Government is a unique feature in the constitution of the Bangladesh. As no other country have adopted a caretaker government, the founders of the Bangladesh constitution could not follow any guidelines towards its formation and application. They innovated the constitution of such government, defining its tenure, jurisdiction and power to suit the genius of the people of Bangladesh. The task was not easy because they had to combine the elements of both elected and appointed bodies in the formation of such government, providing scope for a clash of power between them. Their jurisdiction of power unless clearly defined in the constitution could give rise to problems, requiring interpretation by the court to ensure whether or not they exceeded the constitutional limit in exercising such power. The analysis of its working from 1996 to 2001 revealed some weaknesses, which I think, should be redressed in order to make it more effective. The shortcomings may be summarised as follows:

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The cornerstone of Caretaker Government is its non-political entity and neutrality. It is imperative that the Chief Advisor maintains complete neutrality without any bias towards any political party in order to ensure that the election held remains free without any interference from the caretaker government. The provisions for the appointment of the retired Chief Justice as the Chief Advisor may provide scope to the party in power to manipulate the retirement period so that the person of their choice can lead the caretaker government. In order to provide a safeguard against such possible manipulation, it has become necessary to devise a new formula to select somebody as the head of the caretaker government.

The opposition parties have made some specific proposals to reform the system. There is no denying the fact that some reforms are necessary, but I cannot agree that they should be accepted in their entirety. The opposition have proposed that the President, after consulting the major political parties, would select somebody who is likely to command their confidence without providing any solution to break the deadlock in the event of a disagreement. An impasse is likely to expose the country to a constitutional crisis fraught with dangerous consequences. It may prove difficult to find somebody who is likely to be accepted by all the interested parties. Both the opposition and ruling parties should hold fruitful discussion so that they can mutually agree to devise a formula to select somebody to lead the caretaker government.

The vacuum of power likely to be created by the resignation of the Prime Minister and the Cabinet might have influenced the founders of the constitution to give wider power including the defence to the President. Such concentration of power, as alleged by opposition parties, may result in its abuse unless he remained neutral. They also contend that the wide range of power granted to the President is not in keeping with the principles of parliamentary democracy where the President remains a titular head, acting in most cases on the advice of the Prime Minister. Their proposed reforms, requiring the President to act on the advice of the CTG chief likely to jeopardise his position as an elected person undermining the values of the democratic institutions.

The opposition parties have ignored the fact that the Prime Minister as an elected person has the mandate of the people to advise the President, but the caretaker government as an appointed body has no such mandate.

However, there should be a clear line of demarcation between their power, defining them in the constitution. Such demarcation of power would keep the president confined within his jurisdiction in so far as it relates to the formulation of the policies and overviewing of the running of the administration. The portfolio of the defence which relates to the security of the country cannot be handed over to an appointed body. The responsibility of defending the country cannot be left in the hands of an appointed body. Some people may argue that the task of defending the country on its own is a hypothetical question. The possibility of such situation arising, although remote, cannot be ruled out altogether. Adequate provisions should be made to defend the country, ignoring the assumption that it is highly unlikely that the country would face any external aggression during the short tenure of the office of the caretaker government.

The office of the President forms an integral part of the caretaker government. It is imperative that he should maintain neutrality so that he does not get involved in party politics .It may prove difficult to maintain such neutrality if he belongs to any political party. A stipulation should be made in the constitution that the candidate for the presidency should not belong to any political party. Such stipulation would serve the same purpose as the opposition parties wanted to achieve through their reforms, requiring the caretaker government to control Defence and the President to act on their advice .His neutrality as a non-political person will help to maintain the independence of the Caretaker Government, paving the way to ensure that the election can be held freely without their interference.

The opposition parties demanded that the jurisdiction of the caretaker government should remain confined to assisting the Election Commission for holding a free and fair election. Such limitation is likely to create a vacuum of power following the resignation of the Prime Minister and the Cabinet. They as a part of governmental machinery, have to deal with the day-to-day administration of the country including maintenance of law and order. They are also empowered to take administrative actions in order to create an atmosphere conducive for holding fair elections. Although the jurisdiction of such power is defined in the constitution, it may be difficult to monitor to prove whether or not they have exceeded their constitutional limit. They will certainly exceed their jurisdiction if they tend to formulate policies in the name of administrative actions. So an exhaustive list of powers and responsibilities should be enumerated in the constitution, giving a guideline of the definition of policy formulation and administrative action and the limit of their jurisdiction.

The effectiveness of any political innovation can be judged after it is put into practice, when its merits and defects and other factors associated with its application can be identified. As the concept of caretaker government is a new phenomenon in the political field of Bangladesh, its effectiveness can be improved by taking the necessary steps to rectify the defects as identified above. Despite criticism that it is an unelected body, with no power and no mandate that derives from the people, it has proved successful in holding elections unhampered by the interference of the ruling party.

It is a positive sign that the Prime Minister, in response to the demands of the opposition parties for reforms, has instructed the formation of a committee representing both AL and BNP to discuss the issue. An impasse can only be avoided if they are determined to come to an agreement by adopting a policy of give and take.

The writer, a retired British civil servant, resides in London.