Necessity of a non-party caretaker government

[Navo]

I'm surprised that this section isn't updated a bit more regularly. Rather than creating a new thread for this, I'll post this, an article on a political hot topic, here:

Necessity of a non-party caretaker government
Dr. Borhan Uddin Khan, Professor of Law, Dhaka University

The concept of a caretaker government during the interim period, when the term of an elected government ends and elections are held for forming a new government, is not any new addition in the practice of democracy. In fact all the countries following the Westminster style parliamentary system practice this concept of caretaker government. When a new general election is scheduled and a date is fixed, the outgoing government remains in office but in effect it takes the form of a care taker government. This practice of the concept of care taker government by the outgoing elected political government is followed in a political culture where trust and confidence exists among the major political parties about the fairness of entire electoral process.

With the enactment of Constitution 13th (Amendment) Act, 1996 Bangladesh had introduced an unique system of non-party caretaker government in the sense that the outgoing elected government actually steps down and an interim government is formed as a non-party caretaker government, making a distinction between the conventional caretaker government and a non-party caretaker government.

The Bangladesh practice of a non-party caretaker government has its roots in the political culture of the country featured with mistrust among the political parties. Historically the elections held under the outgoing political government could neither earn the confidence of the political parties nor the people at large. Unlike other countries that have practiced the parliamentary system successfully, in Bangladesh the outgoing government in the past had manipulated the levers of power to rig the election to ensure its own victory.

Non-party caretaker government has been the outcome of our political struggle over evolving a manipulation free electoral process. The crisis of creating congenial atmosphere in holding free and fair election was created by the political parties and the political parties had themselves came forward with the solution for overcoming the same through the constitutional process of “Non-Party Caretaker Government”. With such amendment, free will of the people for exercising their fundamental right of casting vote in the general election, has contributed to the establishment of democracy in its true meaning. The concept of non party caretaker government has been imbued with the value of democracy in the sense that it has been backed by people from all walks of life and was unanimously agreed by all the political parties.

The 13th amendment as enacted by the parliament has been a product of political stress and crisis. Major political parties and also the small parties struggled for a system where all citizens, will have the equal opportunity to exercise his/her voting power to elect representatives of his/her or their own choice in the election of the parliament. What was experienced by the political parties and citizens of the country is that intimidation, coercion, undue influence perpetrated by the party in power hampered the normal process of election, the freedom of the citizen to express their will by ballot papers which ultimately gave a death blow to democracy, the basic feature of the constitution. The popular demand through long political stress and crisis was ultimately accepted and conceded to by the party in power representing the people of vast multitude and that led to the parliament to legislate the enactment, namely, the 13th Amendment Act.

Theoretically also, it was based on the general will of the people as the peoples demand or popular demand was accepted and people agreed to adopt and practice the system as envisaged in the 13th Amendment. No segment of the people opposed it. It was enacted to consolidate democracy. It was introduced in the constitution to strengthen the democratic process, to achieve better democracy, so the impugned Act introducing the non-party caretaker government system was in aid of democracy as enshrined in the Constitution.

It is an admission of failure, on the part of the elected governments, to conduct the elections fairly and honestly. While one might see this admission as downgrading ourselves, it can also be seen as a national strength and courage of being able to diagnose own problem and finding the way out. It is always expected to built a political culture of mutual respect and trust, however, we cannot withhold our democratic process until we reach that longed political culture.

The non-party caretaker government system i.e., the Constitution 13th Amendment Act was first challenged in 1996. Two judges rejected the writ petition and observed as follows: “We find that no unconstitutional action was taken by the legislature and as such, we do not find any reason to interfere with the 13th Amendment Act”.

A second Writ petition was filed in 1999 and the verdict was delivered on 4 August 2004 upholding the legality of Non-Party caretaker system of government. One of the judges observed: “If democracy is accepted as a basic structure of the Constitution, then free and fair election is also a part of it. Without free and fare election democracy can never be practiced in its true sense. So, it can rightly be said that free and fair election is an essential postulate of democracy and one of the fundamental aims of our society as enshrined in the preamble of the Constitution. It appears that 13th Amendment has actually strengthened and improved the system of holding free, fair and impartial elections by which the people can exercise their fundamental rights freely in electing the government”.

The legality of the caretaker government at the Appellate Division of the Supreme Court began on 1 March 2011. The court heard the submissions of senior lawyer Justice T.H. Khan, Dr Kamal Hossain, Barrister Rafiq-ul Haque, Dr M. Zahir, former attorney general Mahmudul Islam, Barrister M. Amirul Islam, Barrister Rokan Uddin Mahmud, and Barrister Azmamul Hossain QC as ameci curae (friends of the court). Among them, all amice curae excepting Azmalul Hossain QC opined for continuing the caretaker government system.

To our utter surprise, the Appellate Division of the Supreme Court, in May 2011 by a majority decision declared the 13th Amendment null and void and contradictory to the constitution forthwith but at the same time opined that the 10th and 11th parliament elections can be held under the 13th Amendment i.e., under the non-party caretaker system. The judges of the Supreme Court are yet to deliver full judgment but ironically the parliament has passed Constitution (15th Amendment) Act abolishing the non-party caretaker system. The decision of the judges was not unanimous but by majority opinion, the ratio of the opinion is even not yet known.

Without a non-party caretaker system in place, the process under which democracy is practiced in this country, free, fair and independent election would be jeopardized. Because of the situation prevailing in the electoral process and massive use of power, muscle and money, incorporation of a new chapter by the way of 13th Amendment was necessitated for holding election freely and freely under the Non-Party Caretaker Government. If people cannot trust or keep faith on the partisan government or on the system of holding free, fare and impartial election then obviously an alternative is to be looked for.

We therefore, find no alternative to that of the non-party caretaker system. It must be brought back in the constitution for holding free and fair election and thereby uphold democracy. Democracy becomes meaningful only when a person can cast his/her vote freely in a fair election. Thus, to practice democracy and to give it an institutional shape, it is imperative that periodic free and fair elections are conducted under the non-party caretaker government. In the absence of free, fair and periodic election democracy becomes meaningless.

The concept of incorporating a non-party caretaker government in the Constitution, is by no means destructive of the concept of democratic government, rather it would help to consolidate and institutionalise the democracy in Bangladesh. The concept of a neutral caretaker government as desired by the people is a government that will be solely and exclusively committed to the empowerment electorates, free from fear and pressure of the muscle and money power, so that they can freely choose the government they want.

Source
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What do you all think about the Caretaker government? I for one find it deeply ironic that an argument is being posited that 'free and fair elections' cannot be held without a non-partisan caretaker government. If the major parties cannot be trusted with even holding an election, then how & why are they entrusted with shaping national policy?! Is it really 'free choice' if you have to choose between two parties that both use 'muscle and money power'?

[mufi_02]

I for one support caretaker government. The author was emphasizing that our political culture is not matured enough to stage free and fair election. The citizen would be influenced with muscle and money and thus democracy in its true sense won't prevail.

Yes, it is very ironic also. This has to do with alternative. Through constitution, we have a way to prevent two major parties from influencing election. But unfortunately there is no alternative for these two parties. A third major party is highly unlikely because for decades the mentality and political culture of our country has been based on these two parties. We saw what happened to Dr. Badrudezza's and Dr. Yunus' attempt to create that alternative third party.

I think this caretaker govt gives us the freedom to choose the lesser of the two evils. That is its purpose.

[Zunaid]

[I moved this to its own thread. This deserves wider discussion than getting buried in a catch-all thread]

[Navo]

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.

Source

[mufi_02]

Navo bhai, the above article is full of legal jargon. I am not a law student and in fact never even took a single class on this matter. What I took the from the article is that --

1. caretaker government is unconstitutional because it makes ceremonial president into head of state and gives him/her all the power for the 3 months.
2. Also, as the govt selects the president, the caretaker govt is not totally neutral but rather acts in the interest of outgoing govt e.g Iajuddin.

This is what I understood. But it would be helpful if you can break it down more in layman's terms and give us the pointers in this opposing article. Thank You

[Navo]

^^ Haha, I'll break it down at some point. But the two new points the author raised is that the Election Commission has to be strengthened and made more independent OR alternatively, give the responsibility of organizing the election to the UN (which the UN Secretary General) has said is possible.

[BANFAN]

What do you all think about the Caretaker government? I for one find it deeply ironic that an argument is being posited that 'free and fair elections' cannot be held without a non-partisan caretaker government. If the major parties cannot be trusted with even holding an election, then how & why are they entrusted with shaping national policy?! Is it really 'free choice' if you have to choose between two parties that both use 'muscle and money power'?

I do think that a neutral body is necessary to hold free and fair election.

It's not a matter of trusting politicians....no politician is trusted anywhere in the world..they are all governed by laws, systems etc to keep away from corrupt practices...implementation of those are lacking in BD under any political Party in power.

A party may be the most trusted to uphold national interest, but if you give them a way to stay in power, they will take it, anywhere in the world. So for a country like Bangladesh, where every other organization can be manipulated by the government and the governments are shamelessly using all of their powers to influence the electoral system, it's mandatory that we have a neutral body and allow the other govt servants related to holding election, to function neutrally.

Allowing UN will bankrupt the country, as they will charge premium costs for the event. And UN is more corrupted than our government itself, and they get away with it more easily. I have been working in the election project of UN in Afghanistan, and I know how they manipulated the results to make someone win it. They even have immunity from being legally prosecuted in the country they are deployed. So, a big nooooo from my side for allowing UN... We had an excellent caretaker system, they may have minor flaws here and there, but that's the best solution for us.. You can, if you like, strengthen the caretaker govt, by changing how they are formed and limit their powers to holding free and fair election only.

[Navo]

Banfan bhai, would the above not happen with having a strong, neutral election commission? The caretaker government system is an innovative one but it always has the potential to put the country in a precarious situation as you have potentially three different governments taking office within a year (i.e AL-caretaker-BNP) and of course, in the context of Bangladesh, there's always the threat that power cna be usurped. As you said, if you give people a way of staying in power, they will take it...

[Tigers_eye]

Trust? AGC of Rail montri were trafficing 70 lakh at night with bunch of homra chomra in the car. The blame is shifting to the driver. Trust?? Now two committee has been formed to find the guilty party. Similar cases can be brought up for BNP as well. Trust?

[Navo]

^^ Wasn't that a civil servant rather than a politician? I read the Daily Star report on it but still not sure what to make of it

[BANFAN]

Originally Posted by Navo
Banfan bhai, would the above not happen with having a strong, neutral election commission? ..........

No.. If the political govt who appoints them...or extends their tenure of service or some how if they defy the government ... His entire retirement benefits can be at stake or may be subjected to many harassmenst there after.....Is still in power during election .. EC cannot function independently.

Entire government employees have no way but to listen to the orders of the govt in power...Whether lawful or unlawful that order is...

A neutral caretaker government is not a direct beneficiary of the outcome of the election and they aren't able to take revenge if their unlawful orders aren't carried out, so they have little opportunity and incentive to influence the election results. Yet there may be certain % if there are extreme corrupt person in CTG, but still, that's way to little in comparison to what a party in power would do.

Do you think BAL intends to have a more fair election and that's why they eliminated CTG? You think it's dis advantageous for them to run the election while in power? If not anything else, at least the country will save the money that Party in power will spend from our tax, for their own election campaign....

Yes, theoretically you r perfectly ok, but in BD context, you aren't ...IMO we aren't ready for that yet.