Drishtipat Blog

The caretakers: a means or an end?
by Shameran Abed
From NewAge

The Caretaker Government Act was passed by the 6th Parliament as the 13th amendment to the Constitution on May 25, 1996. It came about as a result of a two-year opposition movement led by the Awami League, which began in earnest after the ‘rigged’ by-election in Magura in March 1994 and peaked following the farcical general elections conducted under the BNP government in February 1996.
Apart from being a solution that was the demand of the political parties, especially the ones in opposition, the caretaker system also enjoyed high public acceptability from its very inception. Whatever faith the electorate had had on a political government’s desire or ability to hold free and fair elections had been shattered by the events of February 1996 and the opposition’s assertion that a fair election was only possible under a non-party caretaker government found high resonance among the public.
However, the caretaker system was not one that was new and untried. Five years earlier, a successful general election had been held in Bangladesh under the non-party interim government of Justice Shahabuddin Ahmed. The 1991 parliamentary election was the first election since the birth of Bangladesh that was truly participatory and was accepted widely as being free and fair. It was this experience that gave rise to the demand for future elections to be held under non-party caretaker governments, which would ensure the representation of all political parties and be able to hold free and fair elections.
The caretaker system was also modeled largely on that of the interim government of Justice Shahabuddin Ahmed, with a Chief Advisor as the head of a council of Advisors, which would run the day-to-day affairs of the country for a period of 90 days and hold a parliamentary election within that time. It was further enshrined in the constitution that the last retired Chief Justice would be the first choice as the Chief Advisor of a caretaker government and would select not more than ten Advisors, who would collectively be responsible to the President.
However, this was to be a temporary solution. Suggestions were that caretaker governments would only be required for three consecutive general elections, by which time the election commission was to be adequately empowered and our political parties were to have sufficiently matured to be able to hold free, fair and acceptable elections without the need for a non-party caretaker government. That was at least the hope.
It is important then to consider why the caretaker system can be desirable only as a temporary solution. Firstly, the system is entirely undemocratic. For three months every five years, our country is governed by a handful of eminent citizens who are plucked out of society largely on account of their apparent political neutrality. That we have been fortunate in finding men and women who have performed their duty to the nation admirably is hardly relevant. The reality remains that for those few months every five years we entrust our country to people in whose selection we have had no say.
Secondly, although those who have been chosen to be Advisors in the last two caretaker governments have been citizens with a proven track record of success in their respective professions and efforts have been made to select those whose integrity is above question, the truth remains that the first criteria for selection is perceived political neutrality rather than ability or integrity. Therefore, just as the top leaders of our political parties reward the most loyal with cabinet positions rather than those most able, Chief Advisors are forced to begin by pre-selecting those who are perceived to be politically neutral, thereby bypassing many with greater ability and integrity.
Thirdly, it is manifestly absurd that the political parties that are trusted to govern for five years cannot be trusted to conduct proper elections. Surely, it is shameful that we give five-year mandates to parties in whose commitment to the democratic process we can have so little faith. Although the caretaker system as an intervention is something that Bangladesh takes pride in, the need for this intervention is something that we as a nation ought to feel embarrassed about.
Unfortunately, while the caretaker system has so far performed its role of facilitating free and fair elections and ensuring smooth transitions of power, the inherent problems in our system that led to its adoption have not been addressed. To make matters worse, the caretaker system itself has been made controversial by the very parties that had demanded and adopted it.
Following the general elections under the first caretaker administration in June 1996 in which the Awami League emerged victorious, the BNP rejected the results by alleging that the elections had been rigged by the Awami League. Following their defeat in the general elections in 2001, the Awami League took matters a step further by alleging that the caretaker administration had put together an intricate plan in connivance with the election commission, the armed forces and the President of the Republic to fix the election in favour of the BNP led four-party alliance.
This practice of not accepting the results of elections held under non-party caretaker governments has set a very poor precedence. It is now expected that the major parties that do not come out victorious in the elections will make the obligatory remarks of election rigging by the victors. If our major political parties are not willing to accept the results of elections held under non-party caretaker administrations, what point is there of having such a system in the first place?
In calling into question the integrity of the caretaker administrations by alleging either that they had allowed rigging to take place or that they had actively worked towards fixing the result of the elections, our major political parties have transformed the solution that was the caretaker system into the problem. The direct consequence of this will be that those who are offered positions in future caretaker administrations will invariably be wary of the fact that their integrity will be questioned by the side that loses in the elections. Therefore, the novelty that was once attached to being part of this process in facilitating a democratic transition of power from one government to the next has all but worn off. As a result, the danger is that men and women of lesser calibre, and possibly lower integrity, will form future caretaker administrations.
The caretaker system has not only been made controversial in itself, the introduction of this system has also led to a much more important and wide-reaching problem, that of the politicisation of the highest levels of the judiciary. The constitutional provision that the most recently retired Chief Justice must be the first choice as Chief Adviser of a caretaker administration has prompted successive governments to give judicial appointments and promotions with party interests in mind. Not only therefore has the judiciary not been separated from the executive, as has been promised by both the Awami League and the BNP in each of their election manifestos since 1991, the upper levels of the judiciary has become embroiled in controversy as a result of the short-sightedness of political governments. Hence it is no surprise that we now find ourselves in the midst of the current controversy regarding the next caretaker administration, that of the acceptability of retired Chief Justice K M Hasan as its Chief Adviser.
The BNP led alliance government appointed Justice K M Hasan, a former international affairs adviser to the BNP, as Chief Justice, superseding two Justices of the Appellate Division of the Supreme Court who had been appointed to that position before Justice Hasan. The government justified this appointment on the ground that Justice Hasan himself had earlier been superseded by the same two Justices in being appointed to the Appellate Division, and that it was merely correcting the injustice done to him in the past by the Awami League government.
Merely days after Justice Hasan’s retirement as Chief Justice the following year, the government then raised the retirement age of the Justices of the High Court from 65 to 67, thereby ensuring that current Chief Justice J R Mudassir will remain in his position when this government’s term ends, leaving Justice Hasan to head the next caretaker government. This the government justified on the ground that there is a shortage of quality mid-ranking judges, and that a vacuum will be created if the current high-ranking judges retire at 65. However, the timing and manner in which the raising of the retirement age was done nonetheless raises serious questions about the real motive behind this move.
The Awami League led opposition alliance has made clear its stance that it will not contest in the next general elections if it is held under a K M Hasan caretaker administration. If they keep rigidly to this stance, either the elections will take place without the main opposition party, which will not be acceptable to anyone least of all the electorate, or K M Hasan will have to step aside to allow a more acceptable candidate to become the caretaker chief.
Suggestions have been made, reportedly to K M Hasan in person as well, that he ought to stand aside in the interests of a timely election in which all major political parties in the country will participate. If he does stand aside, the next person in line to head the caretaker government as per the constitution will be the Chief Justice immediately prior to Justice Hasan. That person being the late Justice Mainur Reza Chowdhury, the last retired Chief Justice prior to Justice Hasan capable of being the next Chief Advisor is Justice Mahmudul Amin Chowdhury. If the major political parties do not object to his assumption of this position, it would allow one way out of the current impasse. However, many argue that to compel Justice Hasan to step aside would be to deal a terrible blow to the institution that is the position of Chief Justice of the country. This argument holds significant merit. After all, the constitutional provision that the last retired Chief Justice is to be the first choice to head the caretaker government was not done in the hope that all Chief Justices will be politically neutral. That would be absurd, given that the Chief Advisor is a part of the electorate and is expected to exercise his franchise at the elections. Rather this provision was included out of respect for the position of Chief Justice, and in the belief that a person who has filled that position can be trusted to discharge his duties neutrally, whatever his personal preferences may be.
Hence even though the standing aside of Justice K M Hasan as Chief Advisor when the next caretaker government is formed may be the most practical route out of the current deadlock, this would entirely undermine the position of the Chief Justice of the country. The main opposition parties ought to show respect to that position by accepting that a person who has assumed that position should be capable of holding a proper election. To do otherwise would plunge our country and its politics onto a dangerous course.
The cause of the current controversy regarding Justice Hasan in truth lies deeper than the political neutrality or the lack thereof of this retired judge. It is caused by the systematic politicization by our major political parties of all institutions and professions in this country. From the civil service and the armed forces to doctors, lawyers, engineers and university professors, our political parties have succeeded in polarizing this country along broad party lines. As a result, there is an ever-dwindling group of people left in our country who are perceived to be politically neutral.
That is not to say however that the problem is in civil servants or doctors or even election commissioners or advisors to caretaker governments having political preferences or connections. The problem is that our political parties cannot then trust that these individuals will act neutrally when they are required to do so. Yet, that is exactly what happens in every other democratic country in the world. From the United States and United Kingdom to India and Malaysia, elections are held under political governments, which are hardly politically neutral but act neutrally in order to hold proper elections which will be acceptable to all. If political governments can act neutrally in other countries, it is a great pity that we cannot trust a non-party caretaker government headed by a former Chief Justice to do so in order to hold a free and fair election.
The emphasis therefore must shift from who is or isn’t politically neutral to who can or cannot act neutrally. A person of integrity will always act neutrally when neutrality is expected of him. Our constitution was amended to recognize that a retired Chief Justice is someone who can be expected to have the requisite integrity to act neutrally as the Chief Advisor, a provision that was acceptable to all major political parties. Therefore, it is integrity rather than political neutrality that ought to be sought in someone who is given the responsibility of heading a caretaker government. Unless the opposition parties can show that they have cause to question the integrity of former Chief Justice K M Hasan, they should not object to his assumption of the office of the Chief Advisor in the next caretaker administration. If they accept that he is a man of integrity, it logically follows that he will act neutrally in the discharge of his duties, even if he himself may not be politically neutral.
A further controversy that exists regarding the caretaker government is to do with its lack of authority over the ministry of defense, which for those three months come directly under the President. The opposition parties demand that the constitution be amended to bring the Ministry of Defense under the neutral caretaker government rather than to have it under a political President. This appears to be a reasonable demand on the face of it, and as far as aiding in the conducting of fair elections are concerned, the armed forces may be better utilized if they are under the caretaker administration. However, the raison d’etre of the armed forces is not to hold free elections but to defend the nation in the face of external attacks on our territorial sovereignty. If ever the nation faces such a situation, it must be considered whether the armed forces should be under an elected - albeit indirectly - President or under an un-elected caretaker government.
In the long-term however, the caretaker system must be done away with. However, two changes must take place before this can be done. The Election Commission must firstly be empowered. Once the election commission has the necessary authority to hold elections which political governments will not be able to influence, the need to superimpose an interim caretaker government every five years will no longer exist. Political governments will then act as caretaker governments, as they do in every other democratic country in the world, and the election commission will control all mechanisms in order to hold fair elections. And the second requirement is the internal democratization of our major political parties. For as long as they themselves remain autocratic and family-centric, a real democracy cannot be hoped for in this country. Only when they practice what they preach can we expect our democracy to begin to take a definitive shape.
Shameran Abed is editorial contributor, New Age