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Old April 4, 2012, 09:47 AM
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I would like to present to you the counter-argument (if you will) to the argument of having a caretaker government:

Viable alternatives to the Caretaker Government
Professor M. Rafiqul Islam, Professor of Law, Macquarie University, Sydney, Australia

The apex court decision on the unconstitutionality of the caretaker system and its haste abolition by the government have generated serious concern among those desirous of free and fair elections to propel a robust democratic governance. The incumbent government and the opposition alike publicly support free and fair election but they differ on how to achieve it. The former's opposition to and the latter's support for, the caretaker system are seemingly non-negotiable. Some civil society members and the media also tend to support the caretaker system. The caretaker system was not an end in itself but a means towards an end of holding free and fair elections. It is now high time for us to emphasise the end more than a means that no longer exists and move forward in working out viable alternatives to attain the desired goal. This brief note is intended to be a way forward, suggesting some widely known and practiced alternatives to the caretaker system for ensuring free and fair elections.

The idea of the caretaker system must be abandoned from consideration merely because it is unconstitutional in textual and deceptive in operational contexts. It transformed a ceremonial president into all-powerful president, heading an unrepresentative and unaccountable government, which eroded the fundamental structure of the constitution and parliamentary form of government. It is now held as unconstitutional by the Supreme Court. To talk about bringing it back essentially amounts to undermine the apex court and its decisions. The caretaker system may well be politically palatable but political consideration cannot and should not be a factor in judicial decision-making. It is the job of the government, opposition, and civil society to deal with the political consequences of a legal decision and tailor their political responses within the limits of law. Chronic abuses of power in vote rigging in past elections held under political party or military governments have legitimately generated widespread electoral mistrust. Whilst the government was duty bound to abolish the caretaker system following the apex court decision, it was also under an obligation to work out a reliable alternative to overcome the deep rooted distrust. Indeed, the apex court had given the government reasonable time to work out such a viable alternative. Instead of availing this opportunity, the government hastily abolished the caretaker system, a process that indirectly facilitated by the opposition's boycott of parliamentary debate on the issue. So far the opposition is yet to come up with any alternative suggestion other than to stick to the caretaker system in total disregard for the apex court decision.

The caretaker government was conceived as 'non-political and neutral', which is deceptive. The political party in power can appoint its own member or follower as the president who would head the caretaker government and choose its advisers. Were president Abdur Rahman Biawas and Iajuddin politically neutral of BNP influence? On 9 December 2006, Iajuddin deployed the army nationwide and pre-empted the oppositions's planned sit-in the next day of the presidency (DS, 12 September 2011). He took this decision unilaterally against the unanimous views of his ten advisers. Hypothetically, assume a future caretaker government headed by the incumbent president Zillur Rahman. Would it be politically neutral of any Awami League interests? Where is the guarantee that it would act neutrally? Obviously the caretaker system had served some purpose but at a cost. The Iajuddin caretaker government functioned from the beginning to the end under the emergency rule backed by the army, denying many constitutional guarantees. Emergency rules and unconstitutional measures are barriers to democratic institutions and governance, which have triggered the Arab springs.

The demand for the restoration of the caretaker system is likely to be counterproductive on the face of the apex court decision against it, which legally insulates the government position. It is not worth fighting a losing battle. The argument that the caretaker system was a 'political necessity' is untenable because of its inability to fulfil the test of 'necessity'. First, it is not the only means of achieving free and fair elections; and secondly it is not the least distortive to the prevailing constitutional rule. Since there are other viable and constitutionally subsumable options available for holding free and fair elections, the caretaker system cannot be justified on the ground of 'necessity'. In the best interest of free and fair election, we must put behind the caretaker system and move on to suggest viable alternatives and bring pressure to bear on the government to provide a reliable mechanism for free and fair elections. To this end, let me submit two alternate proposals for the perusal of all concerned.

The first one is to render the Election Commission (EC) strong, effective, and absolutely independent of the government. This is the easiest and politically palatable option that already exists in part VII of the constitution and as such requires no legislative reform. It is a statutory body with constitutionally entrenched independent authority to perform its functions (ss 118:4 and 119:1). The two subsequent sections of the constitution confer on the EC substantive independence of the executive. The President shall, not may, upon request from the EC, 'make available to it such staff as may be necessary for the discharge of its functions' (s120). It is the constitutionally imposed duty on the executive to assist the EC in the discharge of its functions (s126). Following the abolition of the caretaker system, the present government has publicly committed to make the EC strong and independent.

However, the recent non-compliance with the EC's request to deploy troops during the Narayangonj City Corporation election casts doubts in many minds about the government commitment. The belatedly published post-facto explanation that the request gave only few days to act and the Prime Minister (PM) in charge of the Defence Ministry was out of the country. If few days are not enough to mobilise army personnel from the Dhaka cantonment to Narayangonj, how can they face national emergencies? Did the PM's absence mean the Defence Ministry was inoperational or closed at that time? Someone should have been in charge of running the state and defence affairs in lieu of and in the absence of the PM. If this was not the case, it was distinctly possible to communicate with the PM for an order to deploy troops through available high-tech communication technology. In her 'Jail Killing Day' speech published in DS on 4 November 2011, the PM quoting s126 of the constitution stated that the army deployment was not necessary in Narayangonj, that the 'constitution [was] not violated', and that 'the government would provide executive assistance to the EC as and when required'. As the Narayangonj election turned out to be, she was right. It was an exemplary free and fair election without troop deployment.

Part VII of the constitution is exclusively devoted to the EC, being the sole authority of administering free and fair elections. Other arms of the government, such as the president and executive authorities are brought in this part with the expressly imposed duty to assist the EC in the exercise of its functions. This is a manifestation of the principle of the separation of power. Section 126 imposes this duty on the executive to render assistance if so requested by the EC. It does not contain the clause 'as and when required'. I am not sure where the PM has got it from. For the sake of argument and in fairness to the PM, even if it is conceded that such a clause exists, it would be the absolute prerogative of the EC to determine 'as and when required'. If the executive determines 'as and when required', the EC is then anything but independent. Her argument that BNP did not deploy troops in 2003 and 2004 elections despite the EC requests cannot be a justification but a defiance of a constitutionally imposed duty. The defiance of the EC request in the Narayangonj election did not cure the violation of the constitution in 2003 and 2004 but multiplied it and two defiances do not turn them into compliance. Criticisms for unconstitutional acts of the BNP-Jammat government went unheeded, for which it paid a price in the 2008 election. Facing and addressing critical messages is far more rewarding for any elected government than attacking their messengers.

On the face of the Narayangonj precedent, it is easier to deny than affirm that the government is committed to an independent EC in good faith. This is where all concerned for free and fair elections must invest their energy to render the EC strong, effective, and independent. The government is better off by allowing the EC to function independently and discharging its constitutional duty particularly under section 126. This legitimate strategy can act as a safety valve in defusing political demands for the resuscitation of the caretaker system and contribute to the progressive development of a constitutional institution as a permanent body of holding free and fair elections. The ability of the EC in holding fair and free election in Narayangonj without the army and the caretaker government cannot be gainsaid. In this venture, it is not only the government but all concerned with fair and free elections must play a positive role. The opposition can play a crucial role in Parliament by holding the government accountable for non-compliance with its duty. It is a sheer neglect of duty for any parliamentary opposition to abstain from parliamentary debates and allow the government a free hand on matters of national significance. The civil society including the media can wage a campaign of mass awareness for free and fair elections under an independent EC.

Should an independent EC fail to eventuate and the government fail to appease widespread suspicions about holding elections under any political party government, an interim option may be to invite the UN Secretariat to conduct the next national election. The UN has successfully performed this task in many instances (notably East Timor and Haiti). The UN Secretary-General in his recent visit to Dhaka has made such an offer and the government may need to give serious consideration to the offer as a last resort to avert political unrest and constitutional crisis as a result of deep seated scepticism about the credibility of elections held under any political party in power and the abolition of the caretaker system.

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