The crippled caretaker

Bangladesh’s system of caretaker government is seen as a successful exercise in allowing free and fair elections, but the country’s current political crises can be traced back to this hasty, imperfect arrangement.

A dark cloud of uncertainty hangs over the upcoming electoral exercise in Bangladesh. With less than five months to go before the parliamentary elections, the fifth since the new democratic era began in 1990, there are serious doubts as to whether the exercise will be held on time – and if so, whether it can be fair, and with participation by all political parties. Three of the four institutions crucial for the general elections are either in some sort of crisis, or have lost credibility in the eyes of the public. These four are: the presidency, the head of the caretaker government, the election commission (particularly the chief election commissioner) and the army. Recently, the first three have been in the news on an almost daily basis, and for the wrong reasons. The possible role of the army is yet to feature prominently in the public discourse. But reading what the politicians and pundits leave unsaid, it is not very difficult to see the shadow of the military looming large.

Ever since the passage of the 13th Amendment in 1996, the Bangladesh Constitution has stipulated that, upon dissolution of the Parliament at the end of each five-year term, an 11-member non-party caretaker government will function as an interim government for 90 days. The country's most recent Chief Justice is to serve as the head of this temporary government, which dissolves when a new prime minister assumes office. The Constitution also stipulates that, during the term of the interim government, the defence ministry is to remain under the control of the president, who otherwise is the titular head of state. Accordingly, the term of the current Parliament and the Bangladesh Nationalist Party (BNP)-led coalition government will end this October. The election, therefore, is required to be held by the end of January 2007.

All elections are important for democratic processes. However, both at home and abroad, the upcoming polls are seen as 'crucial' for Bangladesh. These are the first elections since the sudden rise of political violence in the country, as well as an organised Islamist militancy. There is ample evidence to suggest that militant groups have received moral and material support from members of the ruling coalition government over the last four years. A fair election would provide an opportunity to gauge whether Bangladeshi society at large acquiesces to this ongoing trend, which is building towards a crisis of governance, weakening of the rule of law and a rise in violence against the people, particularly the minorities.

Elections and political practices since 1991 demonstrate that, while there has been some progress in the formal aspects of the country's democratic system – such as the electoral process – little progress has been made on the substantive issues like political freedom and inclusiveness of processes.

During the last couple of years the international community has expressed concern about the law and order situation, particularly the rising tide of militancy, and the attacks on minorities, opposition activists and journalists. Yet Bangladesh is also viewed by many as a possible model for democracy in Muslim-majority countries – that despite the negative factors, democracy is better than chaos. Members of the international community have often expressed the view that, in the absence of the formal democratic process, Bangladesh will inevitably plunge into such a chaos, leading to either a 'failed state' or an Islamist state. Neither of these would be a welcome development in a volatile region such as Southasia.

There is also another crucial element linked to the upcoming polls – the election exercise will demonstrate whether having a stake in the system has moderated the positions of the mainstream Islamists. Of course, participation in elections does not necessarily produce democratic Islamists – Bangladeshi Islamists, too, tend to express disdain for democracy, declaring an intent to use elections merely as a means to power. If they make a credible showing in the polls, will the Islamists decide to work with the institutions of democracy and abide by the rule of law? Or, with adequate power in their hands, would they seek to institute legal and constitutional changes so sweeping as to practically unmake democracy?

Electoral free-for-all

The current political uncertainty in Bangladesh cannot be ascribed to the campaign by the opposition political parties, particularly the Awami League (AL), having demanded the resignation of the government for over four years. Instead, the uncertainty is largely the result of the supercilious behaviour of the ruling coalition, led by the BNP. Take, for example, the government's 2004 decision to extend the retirement age of Supreme Court judges. This was evidently intended to ensure that a certain individual would be able to head the caretaker government. That person is former Chief Justice K M Hassan, who has in the past held a position in the BNP hierarchy.

Extending the judges' retirement age was followed by the appointment of a new Chief Election Commissioner (CEC), M A Aziz, allegedly chosen for his loyalty towards the ruling government. While this appointment in early 2005 followed the letter of the law, it represented a missed opportunity for the government to respond to the opposition's demand for reforms. The opposition grudgingly accepted Aziz and concentrated on its other demands, particularly on the issue of the head and jurisdiction of the caretaker government.

Beginning in September 2005, the Election Commission (EC) began to take prejudicial action. Despite objections voiced by two election commissioners, CEC Aziz unilaterally decided to draw up a new voter list, beginning the process with hardly any preparation. After opposition parties filed writs, the High Court instructed the EC to base the new rolls on that drawn up in 2000. The government, for its part, responded by appointing two new commissioners, considered close to the party hierarchy. In addition, two opposition commissioners, appointed during the time of the AL government, finished their terms and left the EC in April.

The CEC first flouted the High Court's instructions, and then lost an appeal when the Supreme Court upheld the previous verdict. In the meantime, a list containing more than 91.3 million voters had been prepared at a cost of BDT 640 million (USD 9.2 million). The number baffled local demographers, as their projections had showed less than 76.7 million eligible voters, while at the same time tens of thousands were complaining of being left out.

Despite the public demand that the enlistment of new voters should be carried out through houses-to-house visits, CEC Aziz decided to allow corrections to the list only if individuals appeared in person at local EC offices during the month of July. Even though it took more than five months and more than 272,000 workers to compile the now-rejected list, the Commission insisted that a list that is now more than five years old can be updated within a month with the support of less than 6400 officials. All this has prompted a call for Aziz's resignation even from a section of the ruling BNP, and the opposition has declared its refusal to participate in any elections under the present CEC.

As if these events were not enough to create doubts about the election's being on schedule, controversy surrounding President Iajuddin Ahmed that began in May also jeopardises the process. When he had a heart attack and was taken abroad for surgery, rumours spread that the BNP was planning to replace with him someone more loyal, who could be particularly proactive during the caretaker government. The president returned after surgery in Singapore, and while he was in recovery, the Speaker, Jamiruddin Sircar, began performing the presidential tasks, claiming for himself the title of 'functional president' – a term not provided in the Constitution. Rumours of President Ahmed's health fuelled rampant energy-sapping speculation until 6 July, when the president resumed office.

While the uncertainty in relation to the presidency has subsided, the controversy has not. The opposition is demanding that the defence ministry, and therefore the army, be placed under the head of the caretaker government so that, if necessary, they can be mobilised to ensure free and fair elections. This, however, will not be possible unless the BNP-controlled Parliament amends the Constitution.

Unlucky amendment

The immediate causes of the current crisis are the ruling coalition's uncompromising attitude, manipulation of existing institutions and rules, and deliberate efforts to sway tried and tested procedures in their favour. The roots of the current situation, however, can be traced back to the 13th Amendment of the Constitution. It is important to bear in mind that, of the four elections held between 1991 and 2006, three were remarkably fair, while the fourth was the exact opposite. The election of 15 February 1996 was not only boycotted by all political parties except the BNP, but was also blatantly manipulated. The seeds of the current problems were largely sown by the Parliament that grew out of that election.

The 13th Amendment was hastily drawn-up and passed in a marathon session on 26 March 1996, the night before the dissolution of Parliament. Interestingly, at the time it was regarded by almost all political parties as a panacea. In 1995, when the AL had demanded that the notion of a caretaker government be included in the Constitution, the then-ruling BNP had opposed the motion, terming the request unconstitutional. Many analysts have subsequently questioned the wisdom of both. Some have further warned that the system of caretaker government itself cannot guarantee fair elections, but that the Election Commission should instead be strengthened and made free from the influence of the executive branch. AL leaders were not amiable to the idea at that time, and the BNP has had no time to pay attention to any proposal for reform.

Over the last few years it has become evident that the 13th Amendment, meant to guarantee free and fair elections, has had the unintended effect of politicisation of the judiciary, hurt the presidency, and made the army dependent on partisan politicians. Since political expediency was the driving force behind introducing the system, the long-term consequences of the system of caretaker governments and how it would impact the aims of government were scarcely contemplated. Meanwhile, crucial details have remained unexplained, such as the modus operandi of selecting the members of the caretaker government (described as 'advisors'), and the relationships between the executive branch, and the EC and the army. It is some of these ignored 'details' that have now come back to haunt the country.

A way out?

Some analysts dismiss the concerns, saying that political crisis is nothing new in Bangladesh, and that in the end a solution is always found. Such a fatalist attitude is based on viewing the present situation as reminiscent of previous 'crises' – the last days of the military regime of General Hussain Mohammed Ershad in 1990, or the political crisis during the Khaleda Zia regime of November 1995 – March 1996, both of which were resolved peacefully. On the surface, the argument is simple and forceful: however difficult it may appear, or however self-centred the political leadership may be, the Bangladeshi elites have a stake in the current system and will find a way to keep it running.

Missing in this perspective is the presence of forces – international, regional and domestic – with agendas detrimental to the national interests of Bangladesh. It does not take an alarmist to underscore the possibility that, with the overall governance in disrepair and a badly organised general election, the country may be dragged into a situation that could demonstrate the weaknesses of multi-party representative democracy. The inability of leading political forces to resolve the crisis would then benefit a small but lethal force. Saving the healthy practice of representative government through a clean and effective poll exercise, one has to be proactive rather than waiting for some divine or happenstance intervention. It is imperative that solutions to the current crisis are explored in the weeks ahead, before it is too late.

At first glance, the current situation appears nearly impossible. The country has a chief election commissioner bent on ruining his commission; a reliable electoral roll is unlikely to be in place before the caretaker government takes over in late October – and therefore will not be available for the election in January; unless Chief Justice K M Hassan declines the appointment, the caretaker government will be headed by the person least acceptable to the opposition parties; and the army will remain under the jurisdiction of the president. To these elements should be added the highly politicised government officials who are in a place to jeopardise the conduct of free and fair polls. Added to this is the presence of a huge amount of illegal small arms in the market, and the presence of various militant networks. None of this seems to be conducive to a fair election exercise, and yet the options to improve the situation are apparently limited, chiefly because of provisions in the Constitution itself.

The relevant constitutional stipulations in play are as follows. The CEC holds a constitutional position [118(5)], and therefore cannot be removed by executive orders, despite violating the court orders. In appointing the head of the caretaker government, the president will have to exhaust a number of options [58C (3) and 58C (4)] before turning to "a citizen" in consultation with the political parties [58C (5)], or assume the functions of the Chief Advisor [58C (6)]. Finally, the term of the caretaker government is not clearly articulated in the Constitution [58C(2) and 58C(12)], but it has been made contingent on the election of the Parliament, which is to be held within 90 days of the dissolution or expiration of its term [123(3)].

While following the letter of the Constitution might ironically result in a level of despair, there do exist options to accommodate extraordinary circumstances. Additionally, and perhaps more importantly, the spirit of the Constitution should be taken into cognisance. Concerning the removal of the CEC, the president can seek the opinion of the Supreme Judicial Council, which consists of the country's three seniormost judges and which can investigate the CEC's conduct. The proceedings of the Council can be initiated by the president upon receipt of complaints that the CEC or any of the commissioners have acted improperly. In late June, a government minister clarified that any citizen can lodge such a complaint.

To invoke the option regarding the appointment of a citizen as the chief of the caretaker government, the retired judges would need to decline the job. A complete electoral roll can be compiled if the term of the caretaker government is extended beyond 90 days, and other impediments towards a free election, such as the law and order situation and politicisation of the civil administration, can also be addressed effectively in the interim. In any case, the term is not set by the Constitution; it is intrinsically tied to the holding of the election.

Interestingly, the Constitution has no provision for a situation in which, for whatever reason, the election cannot be held within 90 days. It does, however, say that if, "for reasons of an act of God", the election for a vacant seat of the Parliament cannot be held within 90 days, it will have to be held within the following 90 days. If the spirit of this provision is taken in conjunction with the spirit of the entire Constitution – that the fundamental aim of the state is to secure the rule of law, equality and justice for all citizens – a fairly logical solution subsequently offers itself.

Not a divine document, the Constitution of Bangladesh is meant to be a guide for effective governance with the consent of the people, and to ensure that citizens are able to exercise their rights freely and devoid of fear. A Constitution that does not fulfil these responsibilities, quite simply, needs to be changed. Needless to say, the measures outlined above would only be able to bring temporary relief. For a long-term solution to a crisis of this nature, there is no escaping from the fact that the caretaker government system needs to be revisited, and the independence of the Election Commission ensured. The sooner this is done, the better for all. But first, there are elections to be held.

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