Wednesday, September 1, 2010

The controversy over the Caretaker Government

Published in The Independent, September 1st , 2010
M. Serajul Islam

Both the Awami League and the Bangladesh Nationalist Party took credit for the concept of the neutral Caretaker Government (CG) when opinion at home and abroad was favourable as a welcome innovation to holding a free and fair election in an emerging democracy. The AL took credit for visualising the concept of elections under a neutral CG. The BNP credited itself for enacting into law the concept when it absolute majority in the short lived 6th parliament. It is therefore a matter of some surprise that both the parties have in some measure expressed their displeasure with the concept. The ever energetic TV talk show specialists are more enthusiastic than the political leaders in expressing their views on the demerits of the CG. One former Minister from one of the smaller parties in the present coalition was quite emphatic in dismissing the concept as undemocratic and a disgrace for the politicians in a recent TV talk show.

There does not seem to be many takers for this Concept these days. The parties and the people who talk on public issues have swung away from the concept. The two main criticisms that have surfaced against the CG are, first, it is undemocratic; and second, it suggests that the country’s democracy is not mature enough for the politicians to hold a neutral election and therefore bad for the country’s image. On the face of it, both criticisms are correct. But in politics, if only correct things were to happen, then there would be heavenly peace which is not possible. There are of course arguments against the criticisms as well.

Let us focus on the second criticism first. Our politics, despite what politicians may say, is confrontational where the spirit of accommodation and tolerance, two core pre-conditions for democracy, are absent. The two mainstream party distrust each other is a manner that has no parallel anywhere, making politics confrontational and immature. It is out of such feelings that the AL came out with the concept of a neutral CG because it was not confident of a fair election under an incumbent government even though that government was elected. The AL was convinced that elections under a BNP government would be unfair and subject to manipulation and interference against it. The AL was in a sense correct because every government in the past that held elections manipulated elections and that includes both democratic and un-democratic governments. AL’s views about elections under a neutral CG proved correct as it was able to replace the incumbent BNP Government under such a government and then lost and regained power, all held under a neutral CG, thus proving the usefulness of having such a government for holding fair elections, its unelected nature notwithstanding.

On elections under the CG being un-democratic, the issue would look different when seen from a different perspective other than what the country experienced during the last CG that has clouded the minds of many of the critics. If the AL amends the Constitution to do away with the CG, the next elections would be held under it; in other words under a democratically elected government. But would that make the next elections democratic? The answer cannot be a clear one because a democratically elected government can also make an election un-democratic by manipulation and interference. We have examples of such manipulation in our own history. Next door in India, the elected Congress government of Indira Gandhi grossly interfered in the election process in 1971 that led to protracted legal battles in the Court. Indian democracy was finally saved when the Court was able to assert its authority over the elected Government that was adopting un-democratic means to remain in power. Eventually, the emergence of a powerful and independent Election Commission in India has ensured further that an incumbent government does not interfere or manipulate elections.

Bangladesh does not have an EC anywhere near as powerful or independent as in India and the Courts are just beginning to manifest their power. Much more importantly, politics has become more confrontational where the AL and the BNP’s distrust for each other have heightened. The fact that both the mainstream parties have meanwhile politicized the bureaucracy is also an issue that causes apprehension in public mind about fairness of election under an incumbent government. Till politics improves, a general election to form the government without a neutral body holding it would definitely be rejected by the losing party/s. It is in this context, there is the need to take a dispassionate look at the CG and its merits before rejecting it. A CG would be headed by a retired Chief Justice. By the very process through which a Chief Justice rises to his position and retires, common sense would dictate one to assume that such an individual would be a man of integrity , honesty and with experience to decide upon issues based on legality. The other advantage of the CG is the fact that its tenure is limited by the Constitution and the 10 individuals who would assist the Chief Adviser would be people of standing in society acceptable to the political parties who would have no stake in the government to be elected.

These days we are talking of past constitutional violations. I am a bit confused with this exercise because we are going back into decades for constitutional violations while we are ignoring what has happened in the immediate past. The last CG has violated the Constitution with contempt and has very nearly destroyed the concept of the CG itself. It extended its stay up to 2 years where the Constitution limits its term to three months. As for contempt for politicians, there is plenty of documentary evidence left by General Moin who wanted us to follow his “ vision “ of military-led democracy leaving no one in doubt that he held the politicians responsible for failing the country. If we are indeed interested in upholding the sanctity of the Constitution and punish the violators, as we should, then we should look into the immediate past CG closely and then we would be able to set enough examples and recommend enough deterrence and punishment to the offenders to put fear in those hearts who would dare to usurp power in future.

Such an exercise would also allow us to review objectively what went wrong with the concept of the CG and set new legal guarantees to avoid any aberrations in future. It would be un-wise to reject a concept that has proved its worth but where it has failed, it has failed because of the politicians and the extra constitutional forces. It is difficult to visualise the next elections under the incumbent government simply because in the meantime, politics has become more confrontational. The BNP has already rejected the EC as a pro-government institution. Elections under the incumbent government with the EC as it is would be a prescription for political disaster. The best way out would be elections under a reformed CG with the EC modelled and strengthened like the Indian EC. Let us not forget that the Supreme Court has meanwhile manifested its pro-democracy credentials strongly and if we continue with the CG, we would have a retired Chief Justice to head it next time who would have greater public acceptability.

The writer is a former Ambassador to Japan and has a blog

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