Law Vision
Political process under caretaker government
Dr Rafiqul Islam
Few national issues have caused widespread concern at home and abroad as intensely as has the issue of holding a free and fair election under the incumbent caretaker government. This caretaker government has so far succeeded in performing some functions and services that are indicators of a good government. Governance is more a duty than a right. A government formed through a political process receives a mandate to govern. It must conduct its affairs according to the Constitution and the rule of law. The purpose of a political process is to elect or select a government, the functioning of which must be pursuant to the law. It is the law, not the political process that accords legitimacy to governmental powers and functions. A tendency is discernible in Bangladesh that governments think that the legitimacy of their operation flows from political process and power. In so doing, they not only show disregard for the rule of law but make many of their functions suffer from legitimacy crisis.
The primary function of the caretaker government is to assist the Election Commission in holding free and fair elections within certain constitutional limitations. Article 58D of the Constitution mandates the caretaker government only to “discharge its functions as an interim government and shall carry on the routine functions…” Its primary function is to assist the Election Commission in holding free and fair elections, a task that must be accomplished within 90 days. The Constitution does not expressly authorise the caretaker government to make policy decisions. Its very status as an interim government may prevent it from taking any long-term policy decisions. Whether the tenure of the caretaker government can be extended beyond 90 days is debatable. The Constitution is totally silent on this matter. Within this limited scope of its tenure and executive powers, the current caretaker government has now been operational beyond 90 days and performing wide-ranging functions.
Benevolent functions are criteria of a good government. The current caretaker government enjoys popular appreciation and support for its wide-ranging activities that serve national interests, which were expected of elected governments but they could not deliver. Its conducts appear inevitable in national interest and are justified under the doctrine of “public necessity”. There are instances where various measures of a government have been judicially declared valid on the basis of “necessity”. A government may deviate from constitutional limits, provided its departure is justified as a matter of necessity. Obviously every such departure itself constitutes a wrong, but its justification lies in the fact that it is “necessary” in the national interest to correct a previously perpetrated greater wrong. It is for the court to decide whether a particular departure is warranted by “necessity”.
The current caretaker government must be mindful of the requirements of legal necessity as a justification of its conducts. Any future regular government and its parliament need to endorse its actions in order to avoid any legal gap in the continuity of governmental authority. The 90-day tenure of the caretaker government has expired and it remains functional under an emergency proclaimed under Article141A of the Constitution. The President alone can prolong this emergency for a maximum period of 120 days. Any continuation beyond this period is subject to parliamentary approval within 30 days from the date on which the new parliament meets after the election.
The forthcoming elected government will have a role to play in validating the continuation of the caretaker government and its activities. Awami League, if comes to power, has made a public commitment to validate all activities of the caretaker government. This is an appropriate step, for which there are ample precedents. Exiled governments in London during the World War II, viz the provisional governments of de Gualle and Czechoslovakia, and their activities were regularised retrospectively to avoid any legal vacuum. Activities of the Bangladesh government between the proclamation of independence on 26 March 1971 and 16 December 1972 were confirmed retrospectively when the Constitution came into force in the Fourth Schedule and Article 150 of the Constitution. Profound unconstitutional acts of the martial law regimes of Zia and Ershad were ratified albeit by their ductile parliaments in 1979 and 1986, respectively.
The caretaker government must now take its primary responsibility of holding a free and fair election seriously and accomplish it within the shortest possible time. It must bear in mind that it is an interim government for a specific purpose. Its wide-ranging involvement in long-term policy matters and reforms may bring about a corresponding depreciation in its engagement in holding free and fair election. The prolongation of emergency should not be an option, as it does not provide a normal and healthy climate for major reforms because of the absence of popular participation in the reform process and the curtailment of some human rights embodied in the Chapter 3 of the Constitution.
Reforming the political process and institutions are best left to the province of elected governments, the people, and the civil society. Given its limited mandate, it would be exceedingly difficult for the caretaker government to continue for a period longer than “necessary” to hold a free and fair election and to justify as a matter of “necessity” its functions. A failure to justify is likely to overshadow its achievements and dilute its status of good government.
The army certainly has a role to play in aiding the caretaker government to perform its constitutional duty. The armed forces have been displaying their profound professionalism, nation-building commitments, aloofness from national politics since 1990. They are apparently the driving force behind the success of this caretaker government. They must consolidate this role further and should not venture into politics.
The progressive development of political process has been hamstrung by selfish power politics and unlawful acts of both political and military governments. It is naïve to suggest that there could be no situation where the army access to political power may be appealing to redress mass sufferings in the hands of corrupt and dishonest politicians in government. But successive experience of army access to politics suggests that they are not necessarily the best custodian of the national interest and better server in government. Politicians must also not think that they enjoy a monopoly over government and extract maximum possible benefits while in government, which seems to be the prevailing pattern. A minimum standard of responsible political behaviour and culture of compliance with the rule of law are expected of politicians. They must show their habitual obedience and unqualified accountability to the people and national interests. They must exercise their power according to the Constitution. These are the prerequisites of a stable political order for good governance with democratic institutions as its propeller.
The author is Professor of Law, Macquarie University, Australia.
