Caretaker government, president and the armed forces

There are two strands of opinion regarding Article 61 that has vested the president with the power to administer all laws that regulate the defence services during the tenure of the CTG. Most arguments, both for and against the proviso, has been prompted primarily, not by legal and governance compulsions but, by apprehensions of the prospect of misuse of the armed forces by whoever is allowed to retain its control during the parliamentary elections.

It is an unfortunate commentary on our democracy and its institutions that the armed forces have been accorded unnecessarily the role of trump card in the democratic process in Bangladesh. All the political parties have displayed this particular mind-set, while the civil society's concern stem from the country's experience of the past, where reportedly influence brought upon the electorate by the armed forces have determined the results of the election.

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But one is inclined to believe that our polity has more confidence in its own ability now than to depend on extraneous influence to win elections. Therefore it is not only wrong to suggest that the armed forces might be used to influence elections under a democratic dispensation, it is a poor reflection on the maturity of the political parties in Bangladesh to contemplate machinations through the use of the armed forces.

Although the CTG system has been hailed by many countries, and some are even thinking of emulating it, the arrangement one feels is a reflection of the Bangali psyche of distrust of fellow beings, which refuses to entrust the responsibility of holding parliamentary elections under the incumbent party. It's an irony that we have "unelected" persons to run the affairs of the state (those who contend that the job of the CTG is to hold elections are only partly correct. It pursues the policies of the government including conducting the foreign policy of the country). And changes of the system are felt necessary whenever one party sees it being exploited to meet the political ends of the other party or fails to win majority in the parliament.

The concept of the CTG is Awami League's brainchild that emerged after the very bad experience of Magura by-election during the fifth parliament, and an issue that the BNP unnecessarily procrastinated upon before passing the 13th Amendment. The point to note here is that the president, who is largely a ceremonial figure, has been invested with substantial powers during the interregnum under this Act. The 13th Amendment has given the president not only control over the Ministry of Defense, and therefore the armed forces, it has also given him the authority to declare a state of emergency. A very interesting feature of the 13th Amendment is the proviso that allows the president to assume the functions of the chief advisor should the selection of a chief advisor under Article 58C of the constitution be not possible for some reason.

This is indeed an unprecedented empowerment of an office whose powers remain largely circumscribed under the "normal" system. Having said this, one must hasten to add that under a "normal" system of government, the president would still perform some of those functions described above if required, but only on the advice of the PM. It must also be said that certain provisions of the 13th Amendment give one the impression of the arrangements as being a quasi-presidential form of government, which perhaps was not contemplated actually.

The empowerment of the titular president must be seen in the context of the time and situation that the amendment was formulated and effected. It was the BNP, which had the majority in the parliament, and the president at the time was of, from, and by the BNP. As such the modification to Article 61 of the Constitution that relates to the military, to allow presidential control of the armed forces can be seen in hindsight as having been motivated by ulterior considerations, a rather disingenuous act some contend. However, it must be noted that the AL apparently found nothing wrong with the provision when it was in power.

As for whether the armed forces should be under the CTG, leaving other legal questions aside, merely from the point of view of the constitution, the rules of procedure hold strong rationale for keeping the ministry of defence under the CTG. As per the Amendment, the chief advisor is the chief executive and it thus follows that all the ministries should be under him; making exceptions can only suggest doubtful motives, that too when under the related provisions the CTG has been made collectively responsible to the president. And further more, if an "unelected" person can hold the charge of all the other ministries by virtue of his being the chief executive, no logic can be strong enough to put a particular ministry outside its operational control.

The use or the possibility of misuse, as some apprehend, of the armed forces during the period of the CTG, in particular during the elections, is a cause for worry to many. Those in favour of keeping the armed forces under the president cite the abortive coup of May 1996 as a justification of such an arrangement propping up the argument with the reason that being not an elected entity the CTG should not retain the control of the armed forces. Others feel that had the armed forces been under the CTG, and the president remaining the supreme commander at all times, the tiff between the then CAS and the president that ultimately took the profile of a military coup need never have happened.

It is immaterial who retains the command of the armed forces. Its use should be a matter of objective consideration of the relevant factors and not based on subjective thoughts of those that order it about. While it is not necessary for the armed forces to be deployed during the parliamentary elections at all, its use should not be seen as anything more than a part of the general deployment of the security forces to maintain law and order.

However, the rationale for putting the armed forces under the president is not clear since no other ministries have been given the same privilege. The excuse of "unelected" character of the CTG remains unconvincing. The chief executive should have operation control of all the ministries, and that is where the control of the Ministry of Defence should also revert.

The author is Editor, Defence & Strategic Affairs, The Daily Star.