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REFORM OF THE CARETAKER GOVERNMENT

Shah A.M.S. Kibria, MP

A country cannot be regarded as democratic if the government of that country is not elected by the
people. However, a country is not democratic simply because the government was elected. Election is
certainly a pre-condition for ensuring a democratic form of government but it is not the only
condition. A country in which human right is routinely violated, where there is no freedom of
expression or freedom to assemble and hold meetings and processions is not a democratic country. For
example, given the daily deaths in cross-fire one may argue that the present government of
Bangladesh has lost its democratic character. Apart from these deaths in the so-called cross-fire, the
BNP-J amaat government does not permit the holding of public meetings, processions and rallies. Thus
an elected government may also become autocratic.

Though election is not the only pre-condition for democracy, it has to be accepted that it is
undoubtedly the most important condition. The people can exercise their power only through free and
fair election. Article 7 (1) of our Constitution says, All powers in the Republic belong to the people,
and their exercise on behalf of the people shall be effected only under, and by the authority of, this
Constitution. Article11 of the Constitution says, The republic shall be a democracy in which
fundamental human rights and freedoms and respect for the dignity and worth of the human person
shall be guaranteed and in which effective participation by the people through their elected
representatives in administration at all levels shall be ensured. The Constitution reflects the ideals
and values nurtured by the nation over a long period of time. Admittedly, these ideals of democracy
came to us from the Western societies. It is from the British that we got the idea of representative
government. Today, people in Bangladesh know that free and fair election is a sine qua non for
ensuring a democratic form of government. This was evident during the movement against the military
autocracies of the past.

The elections in 1954 and 1970 occupy a crucial place in our history. Actually both these elections
assumed the character of referendum. While the 1954 election reflected the peoples rejection of the
Muslim League and its communal politics, the 1970 election was a vote of confidence on Sheikh
Mujib and the Awami League. In fact, the demand for full independence was but a logical step from
the 1970 elections. The struggle to restore democracy was resumed in 1975 after the assassination of
the Father of the Nation Bangabandhu Sheikh Mujib. The practice of rigging elections with the active
support of the government started during the military regime of Gen. Zia. In fact the use of the
administration to manipulate the elections and their results was an open secret during the martial law
regimes of Gen. Zia and Gen. Ershad. The Parliaments, elected through these rigged elections, was
used to legitimize their usurpation of power. On the eve of the 1986 elections all the opposition parties
had agreed on the formation of a caretaker government for conducting free and fair election but the
concept was not very clear at the time. However, popular agitation for election under a caretaker
government gathered momentum after the Magura by-election that was blatantly rigged by the ruling
party. Finally, after the voterless one party election of February 1996 Begum Zias government was
forced to accept the proposal for a caretaker government and enact the necessary change in the
Constitution.

The concept of a caretaker government during the interim period, when the term of an elected
government ends and elections are held for installing a new government, is not new. Those who
follow the Westminster style parliamentary system are familiar with it. When a new general election is
scheduled and a date is fixed, the outgoing government remains in office but in effect it becomes a
caretaker government. According to long established practice and tradition, the outgoing government
is not expected to make any new law or take major policy decisions. They are expected to simply
carry on the day- to -day routine work of the government. Not only the British, all the countries with
parliamentary system follow this practice. I have seen this in Australia. I believe this practice is
strictly followed in India. Bangladesh is unique in the sense that the outgoing elected government,
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under the law passed in 1996, actually steps down and an interim government is installed as a
caretaker government. I believe nowhere in the world such a system exists.

The Bangladesh practice of a caretaker government is the result of deep distrust of the outgoing
elected government. It is an admission of failure, on the part of the elected governments, to conduct
the elections fairly and honestly. Unlike other countries that have practiced the parliamentary system
successfully, in Bangladesh the outgoing government manipulates the levers of power to rig the
election in order to ensure its own victory. The history of Bangladesh is unfortunately replete with
these examples. The military rulers who assumed power after the coup of August 15, 1975 routinely
rigged the election to legitimize their power. The formalities of election procedures were observed
without the substance. People did not get the opportunity to freely exercise their choice. Ballot boxes
were stuffed with ballot papers in favour of the dictators chosen candidate. The district level officials
of the administration (DCs, UNOs and Police Superintendents) were blatantly used for this purpose.
With the fall of Ershad in 1990 and the installation of an elected government, it was expected that the
practice of rigged election would come to an end. It was a matter of profound disappointment that the
ruling party headed by Begum Khaleda Zia was unable to live up to the expectations of the nation. She
was .not willing to accept defeat. Instead, her government resorted to the same practice of rigging that
was followed by the military rulers. In fact, the Magura by-election in 1994 convinced the Opposition
parties that they did not stand the ghost of a chance to win if the ruling party remained in office. The
one-party election held on 15 February 1996 further convinced the common people that unless the
government resigns a free and fair election could not be held. Public agitation assumed a serious turn.
Begum Khaleda Zia had to bow to public opinion and resign. However, before resigning she quickly
enacted a law on caretaker government. Though the law followed the basic formula advocated by the
Awami League, none of the Opposition parties was consulted on the actual text of the draft law. In
order to stem the rising tide of public anger she hurriedly passed the law. We are still living with this
law under which two elections have been held.

The flaws in the law were detected right from the beginning. It may be recalled that a crisis was
brewing in early 1996 when President Abdur Rahman Biswas ordered tanks in the streets and sacked
the chief of army staff Gen. Nasim. Though the chief adviser and his council enjoyed all the powers of
the government, the president retained control over the armed forces. Thus the seed of conflict within
the government was sown when the relevant law virtually split the powers of the government. The
chief adviser exercised great restraint and averted a crisis. His skill and acumen were crucial in
maintaining peace and tranquility in the country. Given the history of Bangladesh where most
elections in the past were rigged, the introduction of the caretaker system is indeed a positive
development. If the system is implemented honestly the peoples expectation of free and fair election
can be fulfilled.

The experiment with this system in 1996 proved to be a success. Neither side complained of rigging.
Admittedly there were minor complaints but on the whole the elections were accepted as free and fair.
Both the national and international observers expressed satisfaction about the arrangements. It should
be pointed out that the primary responsibility for holding rigging-free elections rests with the Election
Commission. However, the government has the power to influence the results if it so wishes. The
Deputy commissioners and their subordinates function directly under the government and they are the
ones who make all the administrative arrangements. Since the DCs act as Returning Officer, the
government can manipulate the results through the DCs who are under its direct control. The Upazila
level officers also function as presiding officers and polling officers. Through them the government
can rig the election. In 1996 the government was truly neutral and, as a result, the Election
Commission was able to discharge its duties without direct or indirect interference.

The general election on October 1 in 2001 was different from the earlier one. There were widespread
complaints of rigging and corruption. The problem started right from the moment when J ustice Latifur
Rahman took the oath of office as chief adviser. Within minutes he issued orders of transfer of 13
secretaries of the key ministries. It was obvious that J ustice Latifur Rahman had an agenda that was
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not exactly neutral. The selection of the advisers and the subsequent actions made it clear to all
discerning persons that he favoured the BNP-J amaat jote. In a recent article he characterized the
Awami League as most corrupt. These pre-conceived ideas motivated him. His hostility to the Awami
League was evident when he accepted all the proposals of the BNP with alacrity. He violated the spirit
of the underlying principle of the caretaker government. For example, he requested the president to
pass ordinances that were not acceptable to the Opposition. Article 58 D (1) of the Constitution clearly
says that the caretaker government will perform only the routine duties of the government and that it
will not take any policy decision. However, J ustice Latifur Rahman and his colleagues changed the
ground rules of the election system in Bangladesh. Such far-reaching changes in the law should have
been done either by the elected Parliament or on the basis of a national consensus. On the question of
changes in the electoral laws, the Election Commission also acted arbitrarily. In the absence of a
national consensus, such hastily passed laws compromised the fairness and neutrality of the electoral
process.

The Constitution does not give the caretaker government the right to review and annul the orders and
decisions of the outgoing government. After all, the outgoing government was an elected government
that enjoyed the confidence of the nation. The caretaker council of advisers had no legal or moral right
to sit on judgment over an elected government. Their sole duty is to deal with routine work and
oversee the elections. J ustice Latifur Rahman acted as if his was a successor government with the
mandate to undo the actions and decisions of the outgoing elected government. The caretaker council
of advisers suspended the implementation of many on-going projects. These presumptuous decisions
caused delay and confusion in project implementation. In fact, J ustice Latifur Rahman created an
impression that the outgoing government was guilty of corruption and that it had taken many wrong
decisions. This was certainly a violation of the basic principles of neutrality of the caretaker concept.
Clearly it went against the letter and spirit of the provisions of the Constitution. The continuity of the
government was disturbed.

J ustice Latifur Rahman surrounded himself with officers whose anti-Awami League bias was well
known. In league with members and advisers of the BNP, these officers sent instructions to the district
officers on the so-called risky centres. All the centres that were known to be strongholds of the
Awami League were identified and military officers were given lists of Awami League volunteers in
these centres as threats to law and order. This was clearly done to prejudice the military officers on
duty. The deployment of the army personnel was done as desired by Begum Zia. J ustice Latifur
Rahman was visibly eager to please Begum Zia. During the 1991 and 1996 general elections, the army
personnel were required to patrol the main roads. They did not have the right or duty to enter polling
booths. The idea was to use the army to maintain law and order in the area. They should remain within
reach of the civil officers in charge of the polling centres. Should there be violence in any centre they
would be requested to intervene. This arrangement was not acceptable to Begum Zia who demanded
that the military should not only enter the election centres, they should also get police and magisterial
powers. J ustice Latifur Rahman immediately acceded to Begum Zias request. Later it was seen that
this regrettable decision was responsible for putting the army in the centre of a controversy.

The first election under the caretaker law went smoothly largely due to the integrity, firmness of
character and efficiency of the chief adviser. The major flaws in the law became clear during the term
of the last advisory council headed by J ustice Latifur Rahman. The defects in the existing law or its
negative sides are as under.

In the first place, the law as it exists opens up the possibility of manipulation by the ruling side to
place a chief adviser in the post favourable to it. Since the chief adviser and the council chosen by him
can influence the elections by using the administration, the ruling party can start a calculated
manoeuvre to ensure that the person known to be a member or sympathizer of the ruling party is
appointed to this post. Exactly this has happened. The BNP-J amaat jote has extended the age limit of
the judges of the appellate division with a view to ensuring that J ustice Hasan is appointed the chief
adviser. J ustice Hasan, it may be mentioned, was a leading member of the BNP. In fact he was the
secretary of the international committee of the BNP. Obviously he cannot be considered neutral. Thus
by clever manipulation the BNP-J amaat government has arranged that a person of their choice would
head the next caretaker government. This is a major fault that must be rectified to prevent such
manipulation. The chief adviser has to enjoy the confidence of both the treasury bench and the
principal opposition party in the Parliament. It is going to be a difficult process but not beyond human
ingenuity to devise such a system. For example, if J ustice Hasan declines to accept the post, the
president will have the option to invite the next person listed in the Constitution. In the interest of
national unity and compromise, will J ustice Hasan do it? If he is a patriotic person, he will surely
consider the option. Instead of limiting the selection only to the most recently retired chief justice, the
field may be broadened to include all the retired chief justices and judges of the appellate division.
One person may be chosen out of this pool who would be acceptable to both the ruling party and the
principal opposition party in the Parliament. A procedure may be devised to break a deadlock.

Secondly, the present law leaves the selection of the advisers entirely to the chief adviser. The
principle of neutrality should be a governing factor in the selection. Besides, both the ruling party and
the main opposition party should have the scope to suggest such neutral persons. During the interim
government after the fall of Ershad, J ustice Shahabuddin used these lists provided by the different
political parties. If the advisers are chosen from amongst persons listed by the major parties, the
council will enjoy their confidence and there would not be complaints of partiality.

Thirdly, members of the advisory council including the chief adviser have to give written undertaking
to the effect that they would neither seek election in the forthcoming election nor accept any office of
profit under the government that will be elected. While one may consider this redundant as this is a
basic requirement of the caretaker concept, the law as it is drafted does not clearly state the point.
Quite clearly, the advisers must not expect to be appointed to any high office in the next five years
during the term of the Parliament.

Fourthly, article 58 E of the present law confers extraordinary powers to the president. In a
parliamentary system this is contrary to the underlying principle. Our jurists and political parties must
consider the issue in order to prevent division of the executive powers of the government. The
president must remain above all controversies.

Fifthly, if the government manipulates the administration to influence the election to its advantage, the
caretaker government has to take such steps as are necessary to neutralize these measures.

The advisory council of J ustice Latifur Rahman had the electoral laws revised without due
consultation. The issue should be reopened and fresh consultation should take place to determine
whether those laws promulgated as ordinances serve the best interests of the country. As pointed out
earlier, the primary task of conducting election rests with the election commission. It would be the
duty of the caretaker government to ensure that the election commission is able to function without
fear or favour and without interference from any quarter.

The Election Commission must have full control over its budget and staff resources. We have seen
how the present government has used its control of the budget and the secretariat of the Election
Commission to control its activities. Budgetary independence is an indispensable condition for its
freedom of action. As regards staff, once the services of an official is placed at the disposal of the
Election Commission, he or she should be completely under the Commission. The Commission should
also regulate the transfer and promotion of the officials. Above all, the members of Election
Commission must be appointed with the concurrence of the Opposition.
The seminar organized by Bangladesh Foundation for Development Research (BFDR), 31 J anuary 2005 CIRDAP
auditorium, Dhaka. Keynote Paper : REFORM OF THE CARETAKER GOVERNMENT was to be presented by Mr. Shah AMS
Kibria MP, Former Finance Minister & Chairman, BFDR.
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