TueSep262017

The need for non-party caretaker government in Bangladesh

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Barrister Nazir Ahmed

 
The non-party caretaker government that was a unique feature of Bangladeshi democracy was in place over 20 years to oversee elections in a country that has a history of military coups, political assassinations and widespread electoral frauds. Historically, democracy has struggled in Bangladesh with an unstable and hostile political environment.  The two main political parties were at loggerheads at all times, mistrusting each other and exchanging agitated rhetoric.  Ideally, the system of a non-party caretaker government is a sign of weakness and discredit for politicians.  The politicians are trusted to run the country for five years but they cannot be trusted to hold a free and fair parliamentary election.  Rigging elections in favour of party/parties in power have become a common phenomenon in many developing countries.  This problem became acute in Bangladesh immediately after its’ independence.  Elections under party governments have never reflected public opinion, nor have they generally offered an opportunity to confer legitimacy on those who wanted to rule.  Bangladesh is a classic example where centrally controlled electoral frauds had become so entrenched that the people, particularly politicians, decided to introduce a new mechanism, the system of a non-party caretaker government, in the 1990s to oversee the conduct of the parliamentary elections.      
 
Brief history of the non party caretaker government
Originally, the Bangladesh Jamaat-e-Islami (BJI) first advanced the proposal for the system of a caretaker government in 1983.  But it did not appeal to the main political parties, particularly the Bangladesh Awami League (BAL) and the Bangladesh Nationalist Party (BNP) and the left front which were actively engaged in anti-Ershad street agitation movements.  The BJI, through its parliamentary leader, submitted a Private Members’ Bill in December 1991, seeking a permanent arrangement for holding all future parliamentary elections under the caretaker government.  The main parties did not take any notice of the BJI’s Bill for the caretaker government for more than two years of its submission to the Parliament Secretariat in December 1991.  The BAL and the Jatiya Party (JP) changed their mind towards the end of 1993 following the Magura by-election which was alleged to have rigged.  They then submitted separate Bills for the non-party caretaker government: the BAL in October 1993 and the JP in November 1993.  The three Bills on caretaker government, submitted by the BAL, the JP and the BJI respectively, had more similarities than differences.  They however could not pass their Bills as they did not have enough majority in the Parliament and the government led by the BNP did not agree with their Bills.  The BAL, the JP and the BJI intensified their agitational street programmes to compel the government to introduce the caretaker government by amending the Constitution: they held 173 days national strikes (shut down - hartals). 

 
Finally, the system of a non-party caretaker government was constitutionally introduced through the Thirteenth Amendment to the Constitution after the three main political parties, the BAL, the JP and the BJI, boycotted the sixth parliamentary election held in February 1996, to press the demand of a non-party caretaker government to oversee political transition in the country.  The Thirteenth Amendment gave power to an elected government to transfer power to an unelected non-party caretaker government to oversee a new parliamentary election on completion of its term.  The system which lasted for nearly two decades, however, held four elections under it: in 1991, 1996, 2001 and 2008.  The system was first put in place informally in 1991 (later ratified by the Eleventh Amendment), at a time of critical political transformation, before it was included in the Constitution in 1996.  The aim was to oversee the election process at a time when military dictator General Hussain Muhammad Ershad was ousted and electoral democracy was restored in Bangladesh.  The grand alliance led by the BAL, after coming to power in 2009, scrapped the non-party caretaker system from the Constitution saying that they were following the Supreme Court judgment.  Interestingly, when the government passed the Fifteenth Amendment Bill repealing the caretaker government provision, the full judgement was not published.  Surprisingly, the possibility of having two further elections under the caretaker government as mentioned in the short judgement, which was given before the Fifteenth Amendment was passed, was not in the full judgement, which was given after the Fifteenth Amendment was passed!  That means there has been a degree of inconsistency between the short order and the final judgement of the Appellate Division of the Supreme Court for mysterious reason.   
 
Thirteenth Amendment  judgments of the High Court and Supreme Court
In the High Court Division, the non-party caretaker system was challenged twice and rejected twice: firstly in 1996 (Writ Petition No. 1729 of 1996), and then in 2004 (57 DLR 171).  A special larger High Court Bench of Justice Md Joynul Abedin, Justice Md Awlad Ali and Justice Mirza Hussain Haider, after hearing the writ petition, delivered the judgement on August 4, 2004, declaring legal the Thirteenth Amendment.  The High Court held that the Thirteenth Amendment was not inconsistent with the basic structure of the Constitution; rather it helped institutionalise and strengthen democracy.  An appeal preferred against the 2004 judgment of the High Court to the Appellate Division of the Supreme Court which resulted in the 4 to 3 majority judgment against the non-party caretaker government.  Majority Judges (4 out of 7) declared the Thirteenth Amendment as ultra virus the Constitution.  However, citing the ages-old Latin maxims -- "That which otherwise is not lawful, necessity makes lawful", "Safety of the people is the supreme law" and "Safety of the state is the supreme law", -- the former Chief Justice along with three other Judges held “the decision whether the next two general elections would be held under the caretaker system shall be taken only by Parliament.  Although the Thirteenth Amendment to the Constitution is illegal, Parliament may take measures to constitute the caretaker government in new form to hold the tenth and eleventh national polls.”  Three Judges, though minority, gave their judgement in favour of the non-party caretaker government.

 
The needs for having a caretaker government
There are many reasons as to why Bangladesh needs a non-party caretaker government to hold free, fair and credible elections.  Some of the important reasons are:

 
First: Bangladesh had a very bad and shocking experience of holding general elections under party governments.  The first election held after independence under the then BAL government, the current government’s predecessor, was not free and fair.  There were wide spread allegations of irregularities, centre captures, keeping polling agents out of polling station by force and kidnapping ballot boxes.  In spite of these serious allegations, no credible investigation was carried out, let alone punishing the culprits.  The government of the same party is in power.  There has been no change in behaviour and attitude of the party.  Similar allegations were made for other elections held under the party government.  According to Justice Abdul Wahab Miah, in Abdul Mannan Khan V Government of Bangladesh [2012] “There were widespread allegations of vote rigging and manipulation of the elections by the party in power in the Parliament election held in 1973, 1979, 1986, 1988 and February 1996."  Justice Muhammad Imman Ali said in the same case “In the context of our political rivalry, we cannot seriously expect the party in power to abstain from exerting unfair influence during elections. Hence, no fair election can be held while any particular party is still in power.”  Under these circumstances, it would be impossible for the current party government to hold a free, fair and credible election.
 
Second:  During the 41 years history of independent Bangladesh, total five elections - held in 1973, 1979, 1986, 1988 and February 1996 � weree held under the party governments and these were alleged to have been seriously rigged.  The history and evidence suggest that the ruling parties in the past habitually used force and intimidation to win elections.  On the contrary, four elections - held in 1991, 1996 (June one), 2001 and 2008 - were considered to be free, fair and credible by the national and international observers.  All these four elections were held under the non-party caretaker government.  Under those free and fair elections, the BNP, the BAL, the four party alliance led by the BNP and the grand alliance led by the BAL respectively came to power.  In fact, under the non-party caretaker government, the voters, who are constitutionally the source of all power (Article 7), get real chance/opportunity to give their mandate.  Why is the government so scared to facilitate such a system whereby the people can freely exercise their inherent and constitutional rights? 
 
Third: The government generally, the Prime Minister particularly, often gives example of the post 1/11 government headed by Dr Fakhruddin Ahmed in campaigning against the non-party caretaker government.  The Prime Minister almost in all her speeches said that “no one would be spared if the caretaker government came into power” and “everyone would have to go to jail.”  In fact, the post 1/11 government was not a non-party caretaker government as envisaged by the Constitution.  Rather, it was a peculiar emergency government, involved in the unnatural and unconstitutional state of affairs, backed by the armed forces.  Therefore, this particular emergency government cannot be compared with the former non-party caretaker governments, which successfully held three consecutive elections.  In fact, the system of a non-party caretaker government was working well in Bangladesh.  But due to the arrogance, attitude and selfishness of the leading politicians, the infamous 1/11 came and the non-party caretaker government earned a bad reputation.  According to Justice Muhammad Imman Ali “the caretaker government system conceived in Bangladesh was quite unique and served its purpose well at the time. The system has been given a bad reputation because of political manipulation.” 
 
Fourth: The BAL desperately wanted the non-party caretaker government in the 1990s.  As mentioned above, initially the formula of a non-party caretaker government was given by the BJI in 1983.  The BAL joined with the BJI and one fraction of the JP and started movement for the non-party caretaker government in the early 1990s.  They paralysed the country during most of the tenure of 1991-1996 BNP government.  They called 173 hartals.  The BNP initially was not in favour of the non-party caretaker government.  But due to tremendous pressure from the BAL and its the then alliances, the BNP was compelled to hold an election in February 1996 to incorporate the provision of a non-party caretaker government in the Constitution through the Thirteenth Amendment.  According to Neha Metha, a research Fellow of Vivekananda International Foundation “The current political stance of the Awami League and the BNP, however, is diametrically opposite to when the caretaker system was introduced constitutionally, with the Awami League pressing for the system while the BNP being reluctant to concede to such a demand. It was primarily an outcome of lack of trust amongst the political parties as well as the belief that the incumbent government could not hold an election without meddling with the political process which would lead to electoral fraud.”  Has the mistrust of the main political parties between themselves gone?  Certainly not.  Rather it has become more bitter and poisonous.  In such circumstances, holding an election under the party government would not be free, fair and credible at all.  
 
Fifth:  Democracy has been defined by Abraham Lincoln as ‘a government, of the people, for the people and by the people.’  That means, in a democracy people’s wishes, desires and expectation matter most.  The government cannot be of the people unless the people can freely participate in the mandate giving day.  Similarly, the government cannot be by the people unless the people can freely exercise their fundamental constitutional rights.  If the government cannot be of the people and by the people, certainly it would not be for the people.  Bangladesh is a third world developing country where winner takes all and there is not a single instance where the government party, being in power, has ever lost in general election.  The corruption is widespread and politicisation of the administration seems to be normal.  In such circumstances, how can an election under a party government be free, fair and credible?  To hold democracy firmly and sustain it in a country of relatively child democracy, there is no practical alternative to holding an election under a non-party caretaker government.    The relationship between democracy and free and fair elections was best summed up in an Indian case [(2002) 8 SCC 237]: "Free, fair ... elections are part of the basic structure of the Constitution...Democracy and free and fair elections are inseparable twins. There is almost an inseverable umbilical cord joining them. The little man's ballot and not the bullet is the heart beat of democracy."
 
Sixth: The learned Judges of the Supreme Court, no doubt, have special skills, knowledge and wisdom.  All three Judges of the larger Bench of the High Court Division (one of them was later elevated to the Appellate Division of the Supreme Court) were in favour of the non-party caretaker government.  Three Judges of the Appellate Division of the Supreme Court were also in favour of the non-party caretaker government.  Although minority Judges (3 out of 7) were in favour of the non-party caretaker government, if we consider the judgments of the entire Supreme Court Judges (both High Court Division and Appellate Division) we can see that out of total ten Judges of the Supreme Court, six were in favour of the non-party caretaker government.  Not only this, all but one of the amicus curie (friends of the court), who were appointed by the Appellate Division of the Supreme Court to assist them, have given their opinion in favour of the non-party caretaker government.  Therefore, the concept of the non-party caretaker government has apparent merit in Bangladeshi context.  It has strong legal force.  Although the three Judges of the Appellate Division of the Supreme Court, who gave their judgement in favour of the non-party caretaker government, were minority, the history tells us that sometimes minority judgments have been proved to be right.  For example, Lord Atkins in his minority judgment (1942 AC 206) at the height of the World War II declared unlawful the detention of a German citizen by applying the objective test in case of preventive detention.  Forty years later, he was proved right.  In Tamijuddin Khan's case, had the majority accepted Justice Cornelius's minority view, Pakistan's history would have been different.  Similarly, the future history would probably prove that the minority judgments of the three Judges of the Appellate Division of the Supreme Court in favour of the non-party caretaker government had been right. 
 
Seventh: Few national newspapers, who were perceived to be government sympathisers, recently carried out survey for and against the system of a non-party caretaker government.  Nearly 70% people participated in the survey voted for the non-party caretaker government.  This is the result of the survey conducted by the government leaning newspapers.  The ground reality is likely to be higher.  If the people’s opinion really matters to the government, the government can perhaps arrange a referendum.  At least 80% people are likely to give their verdict for the non-party caretaker government.   

Eighth: The government set up a Special Parliamentary Committee of 15 members’ strong panel headed by Syeda Sajeda Chowdhury, Deputy Leader of Parliament on the amendment of the Constitution.  The Special Committee exchanged its’ views with political parties, leading retired Judges and jurists, eminent personalities, prominent members of the civil society and the editors of national dailies.  Almost all of the participants suggested for keeping the system of a non-party caretaker government.  Even the Committee indicated more than once for the likelihood of keeping the provision of non-party caretaker system in the Constitution.  Suddenly the Committee, after meeting with the Prime Minister, changed their mind and recommended for repealing the non-party caretaker system for unknown reason.  This has made the matter worse and caused the political uncertainty.  As the Prime Minister mainly caused this political uncertainty, she should initiate a dialogue for finding an amicable solution or she should take a step to reincorporate the provision of the non-party caretaker government in the Constitution.   
 
Conclusion
The government arrested Mirza Fakhrul Islam Alamgir, acting Secretary General of the main opposition party, the BNP, three times so far over the few month periods on flimsy grounds and trivial matters. Police have recently broken the internal doors of the central office of the main opposition party with hammers, looted goods, vandalised/damaged properties and arrested more than 150 party leaders and activists including ten central leaders of the party without any arrest warrant and taken into remand (remand in Bangladesh means inhumane torture) after false cases being filed.  The government has so far withdrawn nearly 10,000 criminal cases including murder cases filed against activists and leaders of the government party on political consideration.  At the same time, not a mentionable case filed against opposition workers/leaders has been withdrawn.  The opposition parties cannot exercise their democratic and constitutional rights.  Police often kill the demonstrator by direct firing.  Under these circumstances, can the election under the current party government be expected to be held free, fair and credible?
 
Finally, in my opinion, the non-party caretaker system cannot be unconstitutional on the ground of its inconsistency with the democratic principles for (a) it was introduced by national consensus, (b) it came to assist the very ‘democracy,’ and (c) ensured free and fair elections, the hardcore component of the democracy.  Democracy in Bangladesh is like a child, who cannot even stand, let alone walking or running.  Child needs support and boosting.  Similarly, democracy in Bangladesh needs support and boosting - by way of elections under the non-party government - in order to reflect people’s wishes, maintain continuity and ensure smooth transition of power.  Until there is concrete evidence that politicians are able to hold free and fair election acceptable to all, the non-party caretaker system is a must for Bangladesh.  
 
Proposals:
The political system of Bangladesh is in deadlock.  Everyone is concerned on how the next election would be held.  Unless a consensus is made among two major political parties, the country is heading towards an unimaginable destination.  For the greater interest of the nation, following proposals are sincerely put forward for active consideration of the major political parties:
 
1.    Let the previous non-party caretaker system be reincorporated in the Constitution as it was.  Attempt could be taken to close the loopholes in the Constitution so that noting similar to the infamous 1/11 could happen or the non-party caretaker government could not stay beyond 90 days.
 
2.    Instead of the last retired Chief Justice, the first surviving and able Chief Justice could be made the head of the non-party caretaker government.  While, the government of the day can manipulate the system to have the last retired Chief Justice according to their choice, they cannot, however, manipulate who would be the first or second surviving Chief Justice.  The appointment, elevation and retirement of the Chief Justices may be at the government’s hands, but the death and physical wellbeing of the retired Chief Justices are certainly at the hand of the Almighty.
 
3.    The Chief Advisor could be selected through lottery from two-four candidates proposed by the main two parties and the parties should nominate the candidates as less controversial as possible.  The rest 10 Advisors could be selected from the proposed list to be provided by the two big alliances.  If needed, the candidates could be selected and then brought through election as per the Supreme Court judgment.  This proposal is in line with the formula of Dr Akbar Ali Khan, an eminent member of the civil society.
 
4.    Total 10 members from Backbencher MPs [who have never held any Cabinet positions or Chairmanship of Parliamentary Standing Committees] of the two major alliances could be taken on equal proportion to be proposed by the respective alliance.  The Chief Advisor would be appointed through consensus from eminent citizens [for example, Sir Fazle Hasan Abed, Barrister Rafiq-ul Huq, Justice Mahmudul Amin Chowdhury and so on] of the country, be he the leading professional or retired senior most Judge or prominent academic. 
 
5.    10 members should be appointed from the previous non political and non controversial constitutional positions holders: five served during the last BAL government and 5 served during the last BNP government.  If needed, the candidates could be selected and then brought through election as per the Supreme Court judgment.  And the Chief Advisor should be appointed by either of the above 2 or 3 or 4 options. 
    
 
Barrister Nazir Ahmed is an UK based legal expert, analyst, writer and author.
E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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