Caretaker system declared illegal

[Zabaniyah]

HIGHLIGHTS
* 13th amendment unconstitutional

* Caretaker govt may hold next 2 JS polls for 'safety'

* Keep judges out of caretaker government

The Supreme Court has declared illegal a 15-year-old constitutional provision that mandates an elected government to transfer power to an unelected non-partisan caretaker administration to oversee a new parliamentary election on completion of its term.

In the same verdict yesterday the highest court said the voided system may be practiced for another two parliamentary terms for the sake of "safety of the state and its people".

The court also asked the parliament to amend the constitution to make sure that former chief justices or any other Supreme Court judges are not chosen as heads of caretaker governments in case the system is kept for another two parliamentary elections.

A seven-member SC panel, headed by Chief Justice ABM Khairul Haque, reached the verdict on majority vote.

It thus also rejected a 2004 High Court ruling that upheld the 13th amendment to the constitution which provides for a 10-member non-partisan caretaker government to take over following the dissolution of a parliament and resignation of an elected government on completion of its term.

A caretaker government runs the routine administration and assists the Election Commission in conducting the polls.

The High Court ruled the system legal after a Supreme Court lawyer M Salimullah challenged the 13th amendment in January 2000 in a writ petition saying the change distorts the principle that the republic will be governed by an elected government.

After Salimullah's death, another Supreme Court lawyer Abdul Mannan Khan filed an appeal in June 2005 against the High Court ruling in the Supreme Court.

In its brief verdict yesterday the Supreme Court said, "The Constitution (Thirteenth Amendment) Act, 1996 (Act 1 of 1996) is prospectively declared void and ultra vires the Constitution."

"The election to the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment," it said.

"The parliament, however, in the meantime, is at liberty to bring necessary amendments excluding, the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the Non-Party Care-taker Government," the verdict added.

Introduced in 1996 through the 13th amendment to the constitution by a controversially elected parliament, the system of non-party caretaker government has seen the holding of three successful parliamentary elections in 1996, 2001, and 2008 that were considered free and fair by both local and foreign observers.

The immediate past chief justice is the first choice to become the head of a caretaker government with the formal title of chief adviser.

Two former chief justices, Justice Habibur Rahman and Justice Latifur Rahman served as chief advisers respectively in 1996 and 2001.

Fakhruddin Ahmed, a former governor of Bangladesh Bank, held the office to oversee the 2008 parliamentary voting after street protests, led by Awami League and its allies, forced then-president Iajuddin Ahmed to quit the post of the chief adviser.

The caretaker system was also hailed as appropriate for Bangladesh which has a history of bitter political hostilities and mistrust.

Awami League, led by then opposition leader Sheikh Hasina, pioneered the movement for introducing the non-partisan caretaker system.

Her bitter rival Khaleda Zia, then the prime minister, vehemently opposed it.

This time the Supreme Court verdict has been welcomed by Awami League, the current ruling party. Opposition BNP said it will wait to give its reaction.

The verdict triggered mixed response among lawyers with some calling it contradictory and Attorney General Mahbubey Alam hailing it.

Mahbubey Alam said the verdict is "right in principle". The next two parliamentary elections will be held under caretaker governments if the constitutional provisions are not amended, he said.

If the next two elections are not held under caretaker governments, chaos and unrest will take place in the country, he added.

Senior lawyers Barrister Rafique-ul Huq and Khandker Mahbub Hossain, president of the Supreme Court Bar Association, termed the SC verdict self contradictory, saying the SC declared the 13th amendment illegal, but suggested holding next two parliamentary elections under this law.

Barrister M Amir-ul Islam said the parliament has to play a responsible role in finding an alternative to the caretaker government system.

Barrister MI Farooqui, who stood for the petitioner, expressed satisfaction over the SC verdict, saying it is good for the nation and the constitution.

Earlier, the SC heard for 10 days opinions and arguments from eight amici curiae (friends of the court), and the counsels for both sides of the appeal.

Of the amici curiae, Dr Kamal Hossain, TH Khan, Mahmudul Islam, M Amir-Ul Islam, and Rokanuddin Mahmud gave opinions in favour of the caretaker government system.

However, two jurists -- Rafique-ul Huq and Dr M Zahir -- suggested alternatives to the system.

Amicus curiae Ajmalul Hossain and the appellant's counsels MI Farooqui and Mohsen Rashid placed arguments against the caretaker government system.

Caretaker system declared illegal

 

[desioptimist]

what is caretaker system, can you write a few words about it and what you think.

 

[Md Akmal]

what is caretaker system, can you write a few words about it and what you think.

CHAPTER IIA
NON-PARTY CARE TAKER GOVERNMENT
58B. Non-Party Care-taker Government

(1) There shall be a Non-Party Care-taker Government during the period from the date on which the Chief Adviser of such government enters upon office after Parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of Parliament.

(2) The Non-Party Care-taker Government shall be collectively responsible to the President.

(3) The executive power of the Republic shall, during the period mentioned in clause (1), be exercised, subject to the provisions of article 58D(1), in accordance with this Constitution, by or on the authority of the Chief Adviser and shall be exercised by him in accordance with the advice of the Non-Party Care-taker Government.

(4) The provisions of article 55(4), (5) and (6) shall (with the necessary adaptations) apply to similar matters during the period mentioned in clause (1).
58C. Composition of the Non-Party Care-taker Government, appointment of Advisers, etc.
(1) Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisors, all of whom shall be appointed by the President.
(2) The Chief Adviser and other Advisers shall be appointed within fifteen days after Parliament is dissolved or stands dissolved, and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his cabinet who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such.
(3) 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 Adviser under this article:
Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.
(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article:
Provided that if such retired Judge is not available or is not willing to hold the office of
Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.
(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.
(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this Constitution.
(7) The President shall appoint Advisers from among the persons who are-
(a) qualified for election as members of parliament;
(b) not members of any political party or of any organisation associated with or affiliated to any political party;
(c) not, and have agreed in writing not to be, candidates for the ensuing election of
members of parliament;
(d) not over seventy-two years of age.
(8) The Advisers shall be appointed by the President on the advice of the Chief Adviser.
(9) The Chief Adviser or an Adviser may resign his office by writing under his hand addressed to the President.
(10) The Chief Adviser or an Adviser shall cease to be Chief Adviser or Adviser if he is disqualified to be appointed as such under this article.
(11) The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister and an Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister.
(12) The Non-Party Care-taker Government shall stand dissolved on the date on which the prime Minister enters upon his office after the constitution of new parliament.

58D. Functions of Non-Party Care-taker Government(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the ischarge of such functions its shall not make any policy decision.
(2) The Non-Party Care-taker Government shall give to the Election Commission all possible
aid and assistance that may be required for bolding the general election of members of parliament peacefully, fairly and impartially.

58E. Certain provisions of the Constitution to remain ineffective
Notwithstanding anything contained in articles 48(3), 141A(1) and 141C(1) of the Constitution, during the period the Non-Party Care-taker government is functioning, provisions in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter-signature shall be ineffective."

 

[Zabaniyah]

what is caretaker system, can you write a few words about it and what you think.

The caretaker government is responsible for overseeing the country's day-to-day affairs after the previous administration's term has expired.

They are also responsible for overseeing and enforcing that the elections are free, transparent and fair, and make sure there is law and order. This process has support from the military, so they play a crucial role in security. This system is also recognized other countries, including the EU bloc.

What I don't understand is how can something constitutional be suddenly declared illegal. And this ruling is contradictory.

No doubt, the courts are controlled by the government.

I wonder what the AL is up to.

This headline was front page, red and bold letters on the heading.

When I first saw it, I was like - "We are officially ****ed".

Call me pessimistic.

 

[desioptimist]

The caretaker government is responsible for overseeing the country's day-to-day affairs after the previous administration's term has expired.

They are also responsible for overseeing and enforcing that the elections are free, transparent and fair, and make sure there is law and order. This process has support from the military, so they play a crucial role in security. This system is also recognized other countries, including the EU bloc.

What I don't understand is how can something constitutional be suddenly declared illegal. And this ruling is contradictory.

No doubt, the courts are controlled by the government.

I wonder what the AL is up to.

This headline was front page, red and bold letters on the heading.

When I first saw it, I was like - "We are officially ****ed".

Call me pessimistic.

Thanks for the writeup. It was clear and informative.

I understand that current govt has influenced the decision. Keeping that aside, do you think caretaker govt is the right thing to do?
I mean other democracies dont do it, an independent election commission is usually enough for free and fair election.
What do you think?

 

[pak-marine]

good step ... however not enough to stop dictators coming to power.

 

[desioptimist]

good step ... however not enough to stop dictators coming to power.

If the caretaker govt is headed by non-politician, there is a finite of that guy becoming a dictator.

 

[Md Akmal]

Thanks for the writeup. It was clear and informative.

I understand that current govt has influenced the decision. Keeping that aside, do you think caretaker govt is the right thing to do?
I mean other democracies dont do it, an independent election commission is usually enough for free and fair election.
What do you think?

@ Yes, for Bangladesh it is most essential.
@ India does not want that true free democracy to prevail in Bangladesh. They always want that a govt like Sh Hasina to remain in power.
@ You have already kept 1 x para brigade reserve/stand by some where at Kaikunda and few dozens of Russian made helicopter so that any un-usual event happens in Bangladesh then and there they can move on like American style attack at Abotabad(Pakistan).

 

[desioptimist]

@ Yes, for Bangladesh it is most essential.
@ India does not want that true free democracy to prevail in Bangladesh. They always want that a govt like Sh Hasina to remain in power.
@ You have already kept 1 x para brigade reserve/stand by some where at Kaikunda and few dozens of Russian made helicopter so that any un-usual event happens in Bangladesh then and there they can move on like American style attack at Abotabad(Pakistan).

No, I dont want some fantasy stuff, although nice that you wrote it yourself.

My question is why bangladesh needs a caretaker govt which is bound to be less willing to make decisions.
What if there is a natural calamity or war at that time, surely the caretaker dont have exact same capability to make decision as an elected govt.
Also, dont they risk the chance of getting a dictator.

 

[Zabaniyah]

Thanks for the writeup. It was clear and informative.

I understand that current govt has influenced the decision. Keeping that aside, do you think caretaker govt is the right thing to do?
I mean other democracies dont do it, an independent election commission is usually enough for free and fair election.
What do you think?

I believe that the caretaker government is essential. Vote rigging, violence and intimidation during elections are not uncommon in Bangladesh. It is the CG's job to avoid this with support from the military.

There is evidence of some vote rigging during the previous election under the caretaker government. But, not much violence and day-to-day affairs went normally for the most part.

I wish the last part you said was true, but it just doesn't apply in Bangladesh. It is the result of always having power-hungry, greedy and uneducated politicians and "leaders" in power. They don't go anything by logic, they go by random feelings for themselves.

I believe that as long as those two women (neither barely have a high school degree) and their sons keep dominating BD politics, good people cannot enter mainstream politics in the country.

This is why Prof. Yunus cannot enter politics due to the risk of intimidation and violence by pro-AL and pro-BNP gangs (AL is nastier). Now, Hasina is busy harassing him. Its like, no gentleman (or woman) can enter Bangladesh's mainstream politics and aspire to be a good leader.

This is clearly taking democracy and freedom to a downward spiral in Bangladesh.

Bangladesh has technically become a two-party state. It is not exactly a "true democracy" which it claims.