Do we need a caretaker government?

SINCE the last caretaker government took almost two years instead of three months to allow the Election Commission to hold the 9th parliamentary elections, questions have been raised as to whether the system should remain or not as it failed to achieve the desired objective.
The caretaker government is a unique institution, to be found only in Bangladesh, largely because the leaders of major political parties were of the view that the ruling parties could not hold a free, fair and credible parliamentary election as it would be manipulated in favour of the parties in power.
Three elections were heldin 1996, 2001 and 2009 -- under the caretaker government system. All of them had been judged by losing parties as not being free and fair, even when international election observers considered them to be free and fair.
Losing parties cast aspersions on not only of the head of the caretaker government but also of the president and the Election Commission for not being able to hold fair elections. Such allegations have tarnished the image of the institutions.
The system of the caretaker government suffers from major faults. They are:

• The language of the provisions of the Constitution (58B to 58E) that deals with the system is not precise and definitive, and conflicting interpretations could be easily provided leading to illegality of the institution.
• While the head of the caretaker government is a non-partisan person, the president is most likely to be politically aligned because he is elected by the ruling party. Therefore, there is a conflict of intent or goal between the president and the chief adviser in running the caretaker government.
• The system of the caretaker government is dyarchic in the sense that powers and functions are divided between the caretaker government and the president. Some constitutional experts say that the system created two separate but potentially conflicting institutionsthe president and the caretaker government.
• For example, during 1996 the chief adviser had some difficulties in working with the president, and in 2006, four advisers had to resign from the advisory council because they could not work with the president cum chief adviser. This means that if the system were to work, the president would have to be non-partisan/ non-political.
• The advisers, though appointed by the president, cannot be dismissed unless they resign themselves. This is a departure from any system of government.

The 1972 Constitution has been amended 14 times as of today, often to suit political agenda. As a result, the organic character of the Constitution has fallen apart because many of the amended provisions in some chapters are inconsistent with those of the un-amended ones.
Furthermore, whatever powers the president had were totally marginalised by the 1991 Twelfth Amendment Act. It is believed that untramelled powers of the prime minister, as the executive head of the government, have been the source of political ills characterised by gross abuse or misuse of power.
Accordingly, it is suggested that a Constitution Review Commission may be set up to examine many provisions of the Constitution that seem to be contrary to the spirit and letter of multi-party democracy.
The system of the caretaker government may be abolished, and one suggestion is to incorporate the following provisions in the Constitution:
As soon as the parliamentary election date is announced, a national government of all parties represented in the last parliament will be constituted with no policy-making powers. This means that the government would turn into caretaker mode, discharging only routine functions.
The tenure of the national government shall cease at the expiration of three months, and its primary function would be to assist the Election Commission to conduct fair and free parliamentary elections.
If elections cannot be held within three months, the president shall recall the dissolved parliament, and that will decide the time by which the national government will cease.
The Election Commission will have to be provided adequate powers to implement the code of conduct for party-candidates in terms of the Representation of the Peoples Order 1972 as amended.
The bottom line is that an un-elected government has no place in democracy and the Commission may devise some mechanism to ensure credible elections in the country.

Barrister Harun ur Rashid is former Bangladesh Ambassador to the UN, Geneva.