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The Neutral Caretaker Government Interregnum in Bangladesh

Smruti S. Pattanaik is Research Fellow (SS) at the Manohar Parrikar Institute for Defence Studies and Analyses, New Delhi. Click here for detailed profile
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  • November 09, 2006

    The Bangladesh National Party (BNP), which came to power in 2001, completed its term on October 28, 2006 amidst violent protests that saw 24 people losing their lives. Rejecting the BNP's nominee for the post of Chief Adviser of the caretaker government, the 14 party opposition alliance led by the Awami League (AL) called for a strike to press for an alternate Chief Advisor as well as for electoral reforms. A political crisis has, however, been averted by the country's President, who assumed the additional responsibility of the Chief Advisor. As Dhaka limps back to normalcy, expectations of free and fair elections and transfer of power now rest entirely on President Iajuddin Ahmed.

    The mechanism of Neutral Caretaker Government (NCG) is a constitutional innovation in Bangladesh. Its role is to conduct and supervise elections in a free and fair manner. In 1990 when the Ershad military regime was forced to hand over power due to popular resistance, an independent neutral body to conduct elections came to be considered necessary to ensure that the military's influence over the governmental machinery was nullified.

    The agitating political parties led by the Awami League, the Bangladesh National party and the Jamaat-e-Islami issued a joint declaration, which stated that "the head of the interim caretaker government must be a non-partisan neutral person who will not be associated with any political party directly or indirectly, or he would not be contesting for the posts of President, Vice President or member of parliament. No minister of his caretaker government will participate in any elections." The caretaker government that was eventually formed was headed by Chief Justice Mr. Shabuddin, around whom a consensus had evolved. The neutral, efficient and free and fair manner in which the 1991 elections were conducted was a watershed in Bangladesh after years of military rule. This experience later formed the basis for institutionalising the mechanism of caretaker governments before elections.

    The restoration of parliamentary democracy and the assumption of power by Begum Khaleda Zia in 1991 brought to the fore the conflicting dynamics of the Mujib and Zia political lineages. The bitter past came to dominate their relationship and polarised society to a large extent. Not only did personal animosity assumed political colour, but also frequent boycotts of Parliament and hartal came to mark the new democratic political order. The lack of democratic practices and non-co-operation between the two major political parties hampered the consolidation of democracy. The reported rigging and malpractices in the by-elections in Mirpur in 1993 and in Magura in 1994 undermined the credibility of the Election Commission as well as of the BNP government. Under these circumstances and given the prevailing mistrust and suspicion, the institutionalisation of caretaker government to conduct free and fair elections was demanded. When the ruling BNP rejected this demand, the Awami League, the Jatiyo Party and the Jamaat Islami resigned from the 147 parliamentary seats that they together held. Though the speaker refused to accept their resignation, the opposition parties ceremonially vacated their seats and continued with their boycott. In spite of the opposition's refusal to participate in the electoral process, the BNP went ahead with the conduct of elections in February 1996 and even formed a government. But it was soon brought to its knees when government officials including civil servants expressed their inability to carry out orders given by an illegitimate government. Thereupon the BNP stepped down and accepted the holding of fresh elections for the seventh parliament under a neutral caretaker government.

    Before the elections were held, however, on March 21, 1996, the sixth parliament approved a bill granting constitutional status to the NCG under Chapter 2, A of the constitution, which stated that the non-party 'neutral' caretaker government shall be collectively responsible to the President. It would be headed by a Chief Advisor and would consist of ten advisors. Article 58C, clause 3 reads: "The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an advisor…" It also lays down that if the retired Chief justice is not available or is not willing to hold this office, the President should appoint as Chief Advisor the person who among the retired Chief Justices of Bangladesh retired immediately before the last Chief Justice. As an alternative, if no retired Chief Justice were to be available, the President could appoint as Chief Advisor a person who among the retired judges of the Appellate Division retired last, and in case even he is not available or not willing the President shall appoint the retired judge of the Appellate Division who retired immediately before the last such retired judge. The Awami League and the BNP won the elections in 1996 and 2001, respectively, and each time the losing party accused the NCG of facilitating the other party's victory.

    The current constitutional crisis had its genesis when it became clear that retired Chief Justice K. M Hasan, who was earlier associated with the BNP in 1979, is going to take over as head of the caretaker government. His appointment was confirmed when the government brought in a constitutional amendment to increase the retirement age of judges, thereby making Hasan the last retired Chief Justice of the Supreme Court. The Opposition's rejection of his candidacy and pressure from the civil society led him to decline the post of Chief Advisor. It was the resulting vacuum that forced President Iajuddin to take over as Chief Advisor to the caretaker government. The Bangladesh Constitution indeed provides for the President to assume such a responsibility, though Iajuddin's move generated controversy because he had not exhausted all other options available to him under the constitution.

    The Awami League, which had earlier opposed the President taking over as head of the NCG, has decided to adopt a wait and watch policy. It submitted an 11-point demand to the President and has given a deadline for its fulfilment, which, it feels, would prove the President's neutrality. What made the AL accept Iajuddin as the chief of NCG was the fear that if it continues with its street demonstration strategy there was a possibility of the President employing the armed forces to restore law and order - a cause for apprehension given Bangladesh's history of military rule. There are reports that some Western donor countries also played an important role in persuading the political parties to be accommodative in this regard.

    Three issues have assumed importance and have a direct bearing on the electoral process: (1) the Election Commissioner who is considered a BNP sympathizer, (2) the issue of the voters list, and (3) the administrative reshuffle carried out by the previous BNP government.

    The Chief Election Commissioner (CEC) played an important role in preparing a fresh voters list, ignoring the High Court's direction to update it. There were allegations that the enumerators deliberately excluded the names of some members of the minority community and other AL supporters. The earlier list prepared by the CEC contained 9.13 crore voters. But this was struck down by the Supreme Court, which directed the EC to update the already existing list. The current list, after the court's direction, stands at 9.30 crore. The 2001 report of the Bangladesh Bureau of Statistics states that if all the people above 18 are listed and no death has occurred, the current voters list should be 8.02 crore. There is hardly any time left to correct the voters list and an election held on the basis of this list is likely to be controversial.

    Before relinquishing power, the BNP government undertook an administrative reshuffle. Newspapers have reported that most of the 700 posts to which the BNP appointed its own sympathizers are related to election activities. It often becomes a problem for the caretaker government to transfer and reappoint these officials. Appointments are made in such a fashion that if one officer were to be replaced there is a chance that the succeeding officer could be a BNP sympathiser. Though the caretaker Chief has made some changes in the administration, a lot more needs to be done. After taking over, the interim caretaker government has transferred some top officials. But it is alleged that this reshuffle would not have much of an impact since some of these controversial officers have been placed in better positions to influence the elections For example, two key secretary level positions in the administration - that of the home and establishment ministries - have been given to officials whose closeness to the immediately preceding government is well known and sources fear that these vital new appointments might influence the next election in favour of the parties from which they had obtained benefits. Moreover, the Establishment Secretary will be in charge of all transfers and appointment, which proves to be crucial for the forthcoming elections. It is important to mention here that the government appointed a total of 328 candidates as Upazilla Election Officers on September 21, 2006. Out of these, 150 are leaders or activists of the Jatiyatabadi Chhatra Dal (JCD), the student organisation of the BNP.

    The most controversial issue is the reconstitution of the Election Commission, which is a prerequisite for free and fair elections. M. A. Aziz, the current Chief Election Commissioner, is a controversial figure and one of the Opposition's demands has been to remove him from the post. Efforts are being made to persuade him to resign so as to avoid a constitutional crisis. With the BNP and its allies openly supporting him, the Chief Election Commissioner has refused to resign.

    Restructuring the Election Commission remains an important issue. Since the post of the EC is a constitutional position, the caretaker government does not have the authority to replace him. The NCG is trying to avert a political crisis by appointing four additional commissioners to neutralise the four politicised commissioners, including the Chief Election Commissioner, and thus make the functioning of the EC less arbitrary and more consensual. Similarly, there is hardly any time left for correcting the bloated voter's list and remove the names of fake voters. As Bangladesh gears for another political impasse and uncertainty over these issues, the two major political parties are preparing for yet another showdown in the streets, which is likely to be violent and bloody and probably would be just one of the many incidents that will characterize the political scene in the run up to the forthcoming elections.