care taker government in bangladesh
DESCRIPTION
ÂTRANSCRIPT
Care Taker Government in Bangladesh
Chapter 1INTRODUCTION
In the parlance of institutional Government, a caretaker Government is one which normally
takes care of state administration for an interim period until the regular new Government is
formed. In established parliamentary system there is a convention of transformation of the
outgoing Government into a Caretaker Government for the time being before the holding of
general election. Such temporary government exists only to perform day to day
administrative jobs, and is not supposed to deal with policy initiating functions which may
influence the election results. During the period the caretaker government maintains neutral
status for ensuring free and fair general elections. In the parliamentary framework, after the
dissolution of one ministry, the practice of establishing caretaker government for organizing
general polls has been observed in all democratic countries.1
A unique feature of the Constitution of the People’s Republic of Bangladesh is the
provision of holding general election under a neutral, non-party Caretaker Government. But
after 15 years of the introduction of this innovative system and holding three general
elections since 1991, the system is still not perfect. There is still controversy over the
procedures of appointing the Chief Advisor of the Caretaker Government, the powers and
functions of the President and Chief Advisor during the Caretaker administration.2 Questions
have also been raised how far this system would remain effective in a political culture of
mistrust, intolerance and power-hunger among political parties.
1.1 Nature of Caretaker Government
The Concept of Caretaker Government as it has been and is being used in politics and
constitutions of various countries may be used in three senses:
1. Presumed Caretaker Government,
2. Caretaker Government is Special sense,
3. Caretaker Government in proper sense or Non-Party Caretaker Government.
1.1.1 Presumed Caretaker Government
When the parliament stand dissolved or dissolved because the government has been defeated
in the floor and it has advised for its dissolution or because of any other reason, the existing
government continues in office till the new government is framed after election. This 11 http://www.marxist.com/bangladesh-crisis-caretaker-government170107.htm2 Shamin Ahmed, The Making of Caretaker Government and Present Crisis, (Dhaka:News NNetwork,
2005), p.7.
transformation is recognized in all democratic countries. In Britain, Canada, and New
Zealand it is conventional practice and in countries with written constitutions it is specifically
mentioned that when parliament is dissolved the sitting government continues in the office
till its successor has entered upon office.3
1.1.2 Caretaker Government in Special Sense
In some cases to particular special cases to a particular special situation a caretaker
government is framed on the basis of national consensus. Again, in some written
constitutions specific provisions are kept for caretaker government to conduct general
election. For example, in Britain in 1945 the cabinet framed by Churchill following the
Second World War has been termed by Sir Ivor Jenning as caretaker government.4 Because
this government was formed particularly for conducting post-war election in Britain and this
16 member cabinet was participated by Conservative parties, national Liberation Party and
also some other non party members. This government was different from a presumed
caretaker government.
1.1.3 Caretaker Government in True Sense
In true sense the term 'caretaker government' means an interim government which is non-
party government and abstains itself from contesting the election and is appointed particularly
for conducting a free and fair election.5 For example, the provision for 'caretaker government'
as provided by the 13th Amendment of the Constitution of Bangladesh ensures a caretaker
government in true sense, for none of the government has the right to contest general
election, Caretaker government of Pakistan of 1993 and of 1997 were caretaker governments
in proper sense. The interim government to conduct election in South Africa in 1994 was also
a caretaker government in true sense. The interim government of Justice Sahabuddin Ahmed
which was formed after the fall of military dictator Ershad regime in 1990 in Bangladesh was
not, from constitutional point of view; any caretaker government because there was no
provision for caretaker government as such in the Constitution of Bangladesh. Under the
provisions of the constitution Justice Sahabuddin Ahmed was appointed was the Vice-
President and when Ershad resigned Sahabuddin Ahmed acted as the Acting President and
until he came out of his office he acted as the Acting President. But if we examine his
government from factual, Political and philosophical point view, we find that his government
3 Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective,
( Dhaka: BCC Foundation, 1998), p. 392. 4 Ibid, p.393.5 Ibid, p.394.
was essentially though not constitutionally a caretaker government in true sense. Because all
of his government was non-political persons and none of them took part in the election.
The collapse of the Ershad regime marked the beginning of a new pattern of
democratic politics in the Country. The interim government of Shahabuddin Ahmed held
elections to the fifth parliament in February 1991 which in effect provide a means for
transition from authoritarianism to democracy in the country. But elections held before 1991
were mostly intended to serve purposes unrelated to the strengthening of democratic rule
such as legitimizing the autocratic regime and finding new means to strengthen it, dissipating
the opposition, maintaining the status quo and confusing the electorate.6
Several factors have helped the holding of credible parliamentary elections in recent
years; perhaps the most important being the evolution of a unique mechanism to oversee the
process of elections. Under the existing constitutional arrangement, a non-party caretaker
government (herein after mentioned as NCG headed by a former chief justice, called chief
adviser (hereinafter termed as CA, and composed of then adviser, assumes the responsibility
for administering the country during the interim between the dissolution of parliament and
the commencement of the next one. Neither the CA, nor any of his advisers, can be a member
of any political party. Nor can they contest the elections. The NCG stands dissolved in the
date on which a new prime minister enters Office after the constitution of a new parliament.
The NCG is mostly intended to make election impartial and acceptable to the electorate. The
ruling parties in the past used intimidation and force to influence the outcome of election to
such an extant that the people had apparently lost faith in election. The opposition parties also
felt vulnerable in the face of the use of force by the ruling parties to win election and sought
to adopt a mechanism that would not disadvantage any contestant in the polls. Elections
under NCG have thus emerged as a natural alternative.
Perhaps, more importantly, the 13th amendment to the Constitution providing for the
introduction of NCG has been challenged in the court. A high Court Division HCD bench of
the Supreme Court SC observed in June 2003 that the amendment had gone against the basic
structure of the Constitution. The bench observed, the democratic structure of the government
is the basic principle upheld in the Constitution But the caretaker government is to be run by
non -elected person’s .hence it goes against the spirit of the Constitution7 the HCD. However,
did not give its finals verdict, it referred the matter to the Chief justice for the constitution of
6 Enayetur Rahim, Electoral Polities in Bangladesh: 1975-88, Rafiuddin Ahmed ed., (New Delhi:
South Asia publisher, 1990) p.95.7 The Daily Star (22 July, 2003), p.6.
a full bench of the HCD to ascertain whether the 13th amendment had actually amended the
Constitution.8
Chapter 2
13TH AMENDMENT: INTRODUCTION OF NON PARTY CARETAKER
GOVERNMENT UNDER THE CONSTITUTION OF BANGLADESH
2.1 The Caretaker Government in Bangladesh
The Caretaker Government of Bangladesh is a form of Government system in which the
country is ruled by a selected Government for an interim period during transition from one
Government to another, after the completion tenure of the former. As the outgoing
Government hands over their power, The Caretaker Government comes into place.
The main objective of the Caretaker Government is to create an environment in which
an election can be held in a free and fair manner without any political influence of the
outgoing Government. The administration is generally distributed between the advisors. The
Chief Adviser and the other advisers are committed for their activities to the President.
The Concept of Caretaker Government as it has been and is being used in politics and
constitutions of various countries, may be used in tree senses: Presumed Caretaker
Government: Caretaker Government is Special sense: and Caretaker Government in Proper
sense or Non-Party Caretaker Government. The Constitution now empowers the President to
appoint a ten-member NCG, with a chief advisor as its head, within fifteen days of the
dissolution of the parliament. Unlike normal circumstances when the President enjoys some
discretion in the appointment of the Prime Minister, his choice in the selection of the CA,
who enjoys the status, privileges and remuneration of a PM, is strictly restricted.9 The
Composition, function and powers of Caretaker Government is states in Part IV of Chapter
IIA of The Constitution of the People’s Republic of Bangladesh.10
8 A three member HCD bench, in its judgment delivered on 4 August 2004, observed that the 13th
amendment to the Constitution did not amend any 'protected' article; hence the decision not to hold nay
referendum on the amendment was not unconstitutional. The bench also observed that the amendment was not
inconsistent with the basic structure of the Constitution; rather it helped institutionalize and strengthen
democracy. The court rejected the contention at the petitioners counsel that the constitutional amendment
would negatively influence the judiciary. Fore details, see the daily Bangladesh Observer, (Dhaka) 5 August
2004), p. 7.9 Nizam Ahmed, Non-party Caretaker Government in Bangladesh, (Dhaka: The University Pu
Publisher, 2004) p.46.10 The Constitution of The People’s Republic of Bangladesh ( As modified up to 31st May, 2000).
2.2 Need for Introducing Caretaker Government
One of the popular demands during the anti-Ershad movement was for free and fair elections
under a neutral caretaker Government. This was spelt out in the joint declaration of 19
November 1990 of the three alliances. This was a sequel to the farcical elections the Ershad
Government had held. The elections held by them were fraught with misdeeds, from
capturing the poling booths to media coup and vote dacoity. There was unprecedented
violence at the pools in 1986, but the Election Commission gave out that the elections were
held peacefully. Gen. Ershad’s party won only through declaration in the electronic media.
The elections were held under martial law when there was no freedom of the media. The
elections were held under martial law when there was no freedom of the media.
In the Third World Countries, elections are plagued with malpractices. But what
happened in the Bangladesh was blatant. This started with the referendum of ‘Yes-No’ votes
on 30 May 1977.11
Gen. Ershad followed the track of the Gen. Zia in the referendum of ‘Yes-No’ votes
of March’85, general election of ’86,’88 and the presidential election of ’86. The general
elections of ’86 were a tragedy. The presidential election was held with procured contenders
patronized by him. The Election Commission simply used to carry out the orders of Chief
Executive.12
Gen. Ershad had to concede to stepping down to make way for free and fair election under
neutral Caretaker Government. The elections, held in February 1991, were acclaimed
worldwide as an example of free and fair elections. The Election Commissioner became a
symbol on neutrality. The reason for this was the Government had no stake in the elections
and did not reduce Election Commission sub-officer of the President’s Secretariat
2.3 Introduction of 13th Amendment of the Constitution
The dissolution of the fifth parliament did not bring an end to the opposition's street agitation
program. Nor did the government find the task of holding elections to the sixth parliament an
easy one. As soon as the government decided to hold elections to the sixth parliament,
arguing that it was needed to ensure continuity in constitutional rule and to enable it to enact
a bill for NCG, the opposition declared that it would resist the elections at any cost. None of
the main opposition parties took part in the sixth polls held on 15 February 1996. The scale of
violence reached its height during the sixth polls. Elections could not be held in ten
constituencies because of violence; while in another constituency, elections had to be
11 Shamim Ahmed, ibid, p.12.12 Ibid.
postponed because of the death of one candidate. The rate of voter turnout was also extremely
low. The BNP won a landslide victory. But in the context of the opposition boycott, elections
to the sixth parliament caused a serious legitimacy crisis for the BNP government headed by
Khaleda Zia. The opposition considered the sixth parliament as illegitimate and demanded
its immediate dissolution. Widespread political crises compounded the crises in economic
management. The government thus decided to move in the sixth parliament a constitutional
amendment bill providing for the holding of parliamentary elections under the NCG in the
future. The bill on NCG was moved by the then law minister Barrister Zamiruddin Sirkar on
21 March 1996. The House passed it at dawn on 26 March; while the President assented to
the bill on 28 March. Details of the bill will be discussed in the next chapter.
The enactment of the bill for NCG, however, did not lead to the suspension of violent
activities; to the contrary, the opposition further intensified its street agitation programme,
demanding that the Khaleda Zia government resign immediately and hand over power to the
NCG. The anti-government activities got a major boost when government officials seriously
objected to the legitimacy of the government and pledged their support to the opposition
movement. Secretaries of different ministries met the President, expressing their inability to
carry out the orders of what they called the "illegitimate" government.13 They also set a
deadline for the government to resign, failing which they threatened to defy its (government)
order. Different civil society organizations and NGOs also extended support to the opposition
parties. What actually hastened the fall of the second Khaleda Zia government was the
withdrawal of support to it by the civil servants. A large number of officials at different levels
of government openly expressed solidarity with the opposition movement for the fall of the
government. Many officials also, joined the janatar mancha (people's podium) erected by
BAL leaders and supporters under the leadership of the Dhaka City BAL President and
Mayor of Dhaka - Mohammad Hanif. The mancha provided a rallying point for several days
for those who were engaged in anti-government agitation. When Khaleda Zia found it
impossible to run the government, she resigned on 30 March 1996.14 The following day a
non-party caretaker government with the last retired Chief Justice Habibur Rahman as its
head was formed.
On the way to restoration of liberal democracy from the bondage of military autocracy the
historic 5th Parliamentary election was a milestone which was held under the acting president 13 Nizam Ahmed, ibid, p.33.14 Ibid, p.34.
Justice Sahabuddin Ahmed in 1991. An unprecedented degree of enthusiasm was shown by
all quarters. The election was nationally and internationally recognized as free and fair.
Winning majority seats in parliament the BNP formed government. Bu from the beginning of
the BNP government the opposition parties in the parliament began to create pressure on the
government so that it include provision for caretaker government in the Constitution. In 1993
first Jamat-i-Islam and the Al and JP submitted their respective Bills concerning caretaker
government. Every Bill contained the same object to make general election free and fair and
to make the whole process of election free from the government influence provision for
caretaker government should be introduced in the Constitution. But this demand of the
opposition parties was treated by the government as unconstitutional and illegal. The Magura
by- election was the turning point for the movement of caretaker government. It was this
Magura by election in which the government party BNP took resort to an unprecedented
malpractice and rigging.
This election manipulation of BNP government, as reported by most important
dailies, defeated even the Ershad's election manipulation in 1988 and it has got a title of
'Election Magura' in the election politics of Bangladesh. Before this Magura incident all the
opposition parties made walkout from parliament in protest of a statement made by
information Miniser Hazmul Huda commitment that they would not return to parliament if
the information Minister did not expunge his statement. To this boycotting of parliament
Magura election malpractices provided an extra strength and now the opposition parties got
their direct way of demanding that they would not go back to parliament till a caretaker
government Bill was introduced in the House. The government did not pay a heed to this
demand. On 28th December, 1994 about 147 MPS resigned in protest. When the government
proceeded to hold by election in 142 vacant seats the political impasse took more outrageous
condition leading to continuous country wide strike. On 24th November, 1995 the
government dissolved the 5th parliament and the 6th Parliamentary election was scheduled on
15th February, 1996. But since the government did not pay any heed to the demand of
caretaker government by the opposition, all the opposition parties boycotted election. The
ruling party BNP proceeded to contest the election with sudden hand picked parties as the
military director Ershad did. The announcement of the result of the election added fuel to the
fire like opposition movement. All the opposition parties launched their country wide non-
cooperation movement and demanded the fall of the government as well as the dissolution of
6th parliament. The whole politico-economic condition of the country was leading to a
complete civil war. Lastly finding no other the way out BNP government introduced the
Caretaker Government Bill (the 13th Amendment of the Constitution) on 21st March at the
first session of the 6th parliament. The Bill was passed on 26th march. Then the 6th
parliament after 7 days of its life was dissolved in 30th March and justice Habibur Rahman
was appointed as the Chief Adviser of the Caretaker Government as envisaged in the 13th
Amendment of the Constitution.
This Amendment was passed with 268-0 votes in 26th March, 1996 and it became law
on 28th March. The Amendment Added a new Chapter (Chapter IIA: Non-Party Caretaker
Government) in Part IV of the Constitution with 5 new Articles (58A, 58B, 58D and 58E). It
also amendment Article 61, 99,123,147,152 and the 3rd shedule of the Constitution of
Bangladesh.
2.4 Constitutional Provision regarding Non-Party Caretaker Government
Chapter IIA, Article 58B to 58E of the Constitution deals with the provisions of Non-Party
Caretaker Government.15
58B. 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 and shall be exercised by him in
accordance with the advice of the Non- Party Care- Taker Government.
4. The provisions of article 55, 5 and 6 shall (with the necessary adaptations) apply to
similar matter during the period mentioned in clause .
58C. 1. The Non-party Caretaker Government shall consist of the chief Adviser at its
head and not more than ten other Advisers, all of whom shall be appointed by the President.
2. The Chief Adviser and others shall be appointed within fifteen days after
parliament is 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. 15 The Constitution of The People’s Republic of Bangladesh (modified up to 31st May, 2000).
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 nor 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 Adviser,
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 organization associated with affiliated to any
political party;
c. Not, and have agreed in writing not to be, candidates for the ensuring 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 which
the Prime Minister enters upon his office after the constitution of new Parliament.
58D. 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 service of the Republic; and except in the case of necessity
for the discharge of such functions it 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 holding the general election of members
of Parliament peacefully, fairly and impartially.
58E. 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.
2.5 To What Extent the Last Caretaker Government is Valid
Basically, the system of caretaker government established on the basis of lack of faith among
the political parties. In many countries of the world caretaker government system exist. But
the format of caretaker government in Bangladesh is different. In other states the last ruling
government works as the caretaker government till the transfer of power to the next elected
government. At that the last ruling government only does the routine work, and assists the
election commission to conduct an election. But the caretaker government system of
Bangladesh little bit different from other, and that is non party caretaker government. The last
ruling government handover power to a neutral person according to article 58 of the
constitution of Bangladesh, who appoints ten more advisers and these eleven advisers, shall
administer the government, for three months. In between these three months this caretaker
government shall assist the election commission to their best to hold a free fair and credible
election. In this three months time they will control the law and order situation, re-organize
the election commission, re-organize the administrative body, modify the law relating to
election, create awareness among the people about their voting rights and lastly, they will
conduct a free, fair and credible election and handover the power to the elected government.
According to the constitution this is the system of non party caretaker government.
0According to this procedure, in 2006 a non party caretaker government was formed by the
Dr. Prof. Iazuddin Ahmed. But due to extreme revolt against that caretaker government by
the political parties, he was bound to resign from the post of chief advisor of caretaker
government and declared state emergency, On 11 January 2007. (Popularly known as 1/11).
On 12 January 2007 Faqruddin Ahmed had taken oath as the chief advisor of new caretaker
government and he run his caretaker government till January 2009.
2.6 Some Specific violation of the Constitution during the proposed election of 2007
1. According to Art. 123(3) of the Bangladesh constitution “a general election of members of
parliament shall beheld within ninety days after parliament is dissolve, weather by reason of
the expiration of its term or otherwise than by reason of such expiration.” So, the duration of
the caretaker government will be three months. But the duration of the last caretaker
government was almost two years. So according to this context the last caretaker government
had lost their validity.
2. According to Art. 141(c)16 “shall cease to operate at the expiration of one hundred and
twenty days, unless before the expiration of that period it has been approved by a resolution
of Parliament. So the duration of the emergency period shall not more then one hundred
twenty days. But the duration of the emergency period in Bangladesh was almost two years.
So from this point of view the emergency period was also violative with the Constitution.
3. According to Art. 58D “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 service of the Republic; and except
in the case of necessity for the discharge of such functions it shall not make any policy
decision” and (2) The Non- Party Care-taker Government shall give to the Election
Commission all possible aid and assistance that may be required for holding the general
election of members of Parliament peacefully, fairly and impartially
So, the caretaker government as per the Constitution can not take any policy making
decision. But they have taken many policy making decision, among these decision some were
declared illegal by High court division, such as – Muslim marriage and divorce ordinance
(amendment-2008) relating to appointment of Kazi was declared illegal by the High Court
Division. Contempt of courts ordinance-2008 was also declared invalid. In this writ petition
the court said, “During the period of caretaker government the president is incompetent to
declare any unnecessary ordinance except those which are related to election. According to
16 Constitution of the People’s Republic of Bangladesh.
the constitution caretaker government can not take any policy making decision. Thus, this
ordinance is inconsistent with the constitution and thus, declared invalid.
Chapter 3
APPROVAL OF CARETAKER GOVERNMENT AROUND THE WORLD
3.1 Attitude of Experts towards Non Party Caretaker Government
It is important that both the policy makers and opinion makers in our country seriously study
the Bangladesh experiment to draw necessary lessons for reinforcing our election process
under a neutral caretaker government set up.17 Kuldip Nayar a noted Indian journalist and
member of the Rajya Sabha ,upper house of the Indian parliament ,suggests that the NCG
system may also work in India as the existing methods of holding elections have serious
defects, to quote Nayar.
Elections in India are increasingly reduced to the outcome of the pressure that a ruling
party and its cohorts, including criminals and money bags, can exert on the voters. The
Election Commission can lessen the use of official pressure but cannot eliminate it. Even the
code of ethics remains unimplemented. The party in power has an advantage. It posts officers
of its own choice as collectors and superintendents of police to districts and it has been found
in the past elections that they tried to influence the voters in favor of the party in
power ....None in the government differentiates between official and party work .Such
malpractices are dangerous for a democratic polity .The attitude of the will to do the right and
proper thing ....They can be countered only if non-party public men oversee the polls.18
Dr.M.S.Gill, a former Chief Election Commissioner of India, being convinced of the ability
and efficiency of the caretaker government in holding free and fair elections in Bangladesh,
forcefully advocated a similar type of arrangement for India.19
A former Chief justice of the Delhi High Court, Mr. Rajindar Sachar, also argued for
a caretaker government to oversee the holding of parliamentary elections in India .He
observed that their was no need for constitutional amendment to allow a caretaker
government composed of people who were not parliament members to run the interim
administration. The Supreme Court has held that article 75 permits ministers, including the
17 Fakhruddin Ahmed, The Caretakers: A First Hand Account of the Interim Government of Bangladesh 1990-91, (Dhaka: UPL, 1998), pp..91-2.
18 Kuldip Nayar, Caretaker Government in India, (Dhaka: Courier, 1996) p.26.
19 Giasuddin Molla, Democratic institution Building Process in Bangladesh; South Asian experience of a new Model of” caretaker Government' in a Parliamentary Framework, (Dhaka: Regional
Studies, 2002) p. 107.
prime minister, to continue for six month without being a member of either house. The
president can therefore, without any breach of law or convention, constitute a council of
ministers from other than legislators for a short period only for conducting the general
elections.20
The opposition politicians in Sri Lanka have also debated the issue of the suitability of
the Bangladesh model in the Sri Lanka context ,especially in view of the tendency of the
party in the government to misuse its power and influence to keep its in power even at the
cost of debasing democracy and democratic norms .In fact, in May 2001,four opposition
political parties in parliament worked out the modalities to bring amendments to the
constitution needed to set up a caretaker government during elections and to establish an
effective Media Commission to control the state media.21
However, neither India nor Sri Lanka has yet introduced the caretaker system Nor it is
everyone who has observed the electoral process in Bangladesh hospitable to the idea of
NCG ,s transplantation outside of its country of origin The head of a 12 member
Commonwealth Observer Group monitoring the 1996elections when asked if he felt that the
idea of caretaker government was something unique and other countries might emulate the
Bangladesh example remarked I am not sure May be for Bangladesh ,it is necessary.22
3.2 Approval of Caretaker Government around the World
3.2.1 Caretaker Government in Australia
In Australia, following the dismissal of the Whitlam, labor government by the governor-
General in 1975. Liberal leader- Malcolm Fraser- who did not have a majority in the
(dissolved) House of Representatives (lower house) was allowed to run a caretaker
government until a general election was held. One recent example of a (non-regular)
Caretaker government holding state power between the dissolution of parliament and the
election of a new one is Fiji. After the overthrow of the government in May 2000 of the
Indian- origin PM Mahendra Choudhry, the military appointed a caretaker government, with
Laisenea Qarase as PM. ALthough the high court declared the caretaker government set up
by the military illegal, it nevertheless survived. The caretaker government held elections to
20 . Fajindar Sachar, Let's Have Elections Under a Caretaker Government, The Times of India, (7 April, 1997), p.11.
21 Prasad Gunewardene, “Opposition Parties Agree to Caretakers Government", The Times of India, ( 25 June, 1996), p.11.
22 The Daily star (7 June, 1996), p.6.
the parliament in August 2001 in which Qarase's party won a majority of Seats Qarase, the
head of the caretaker government, as latter appointed PM.
3.2.2 Caretaker Government in Britain, Canada, New Zealand
In Britain, Canada, New Zealand it is a Conventional practice and in countries with written
constitutions it is specifically mentioned that when parliament is dissolved the sitting
government continues in office till its successor has entered upon office.
To be noted that this transformed nature of the sitting government during the election period
is not universally recognized as caretaker government in true sense of the term for this
government taking care of the administration itself contests in the election while it is in
power. But as it does not initiate any important policies or make a commitment of broad and
sweeping nature and it holds office just to take care of the day to day administration, only in
this sense it may be presumed that it is a caretaker government. This type of caretaker
government is automatic and natural in countries where constitutionalism is practiced.
In some cases to a particular special situation a caretaker government is formed on the
basis of national consensus. Again, in some written constitutions specific provisions are kept
for caretaker government to conduct general election.
For example, In Britain in 1945 the cabinet formed by Churchill following the Second
World War has been termed by Sir Ivor Jennings as Caretaker Government.23Because this
government was formed particularly for conducting post war election Britain and this 16
member cabinet was participated by Conservative Party, National Liberation party and also
some non- Party members. This government was different from a presumed caretaker
government as I have mentioned just now. Sir Ivor Jennings categorically says that 'it should
be explained that it is not British practice to appoint a caretaker government' for the duration
of general election. It was done in 1945 because the wartime coalition had broken up. The
electors had to decide whether they wanted a conservative Government or a Labor
Government, and meanwhile the kings’ service had to be carried on. This was quite
exceptional. The government the election and continues to do so after the election to do so
after the election unless it is defeated'24
Chapter 4
ARGUMENTS OVER CARE TAKER GOVERNMENT SYSTEM
23 [http://www.direct.gov.uk/en/Governmentcitizensandrights/UKgovernment/Centralgovernment an andthemonarchy/DG_073444, last visited 26 September, 2009] 24 Ibid.
Firstly, though the chief adviser of the caretaker government has been the status of a prime
minister from legal point of view he has been made subservient to the president and he has
not been given the full power as a prime minister in ordinary situation can exercise according
to article 58e of the Constitution of Bangladesh. the president is not bound to act in
accordance with the advice of the chief adviser again article 58b [2]stipulates that the non
party caretaker government shall be collectively responsible to the president thus president
retains the power to cancel any decision of the caretaker government and even the caretaker
government itself since the chief adviser along with all advisers of the caretaker government
is non political and non months to conduct a general election no power expectation will work
within him he should have been for the sake of independent exercise of his function given
the same constitutional power as the prime minister does have.
Secondly, while the caretaker government is in power the unfettered power over the
defense has been vested upon the president during ordinary situations though the supreme
command of the defense is vested to the president he exercises this function only in
accordance with the advice of the prime minister but the 13th amendment is silent about this
matter thus the most powerful way to act in an arbitrary manner is retained with the president.
Thirdly, this interim caretaker government will be in power for 3months only. They will
not have any policy formulating functions and they will be in power without any prior
experience of governing the country. So it is likely that this government may create obstacle
in the smooth functioning and developments of policies initiated by the previous government.
This is of course the most strong argument against the concept of separate caretaker
government that very few instances can be found where after every 5years or after every
dissolution of parliament a separate politically inexpert government sits in power for
conducting a general election but the fact of the Bangladesh politics as far as it concerns its
election politics is that a free and fair election has been a far cry in the history of Bangladesh
since its independence and the interim government of justice Sahabuddin Ahmed after the fall
of Ershad regime has made a historic success in holding a free and fair election and this
success had turned the concept of caretaker government into a political reality which has,
through the 13th Amendment, been a constitutional reality.
If we analyze the Amendment from true viewpoint of constitutionalism we will be bound to
say that 13th Amendment is against the principle of institutionalization of democracy.
Because as a result of this Amendment a wrong conception will always work in the minds of
the people and young learners that the government in power cannot be above the corruption
and manipulation of election process; secondly, the Election commission as a constitutional
institution of democracy for controlling, conducting and superintending the whole election
process is inherently weak and cannot be made in a position to be institutionalized; thirdly,
the whole governing process particularly the bureaucracy will get a swing on a regular
interval which may hamper the smooth functioning of the administration. For
institutionalization of democracy not separate interim caretaker government but an
independent Election Commission is essential
Chapter 5
JUDGMETN OVER CARETAKER GOVERNMENT SYSTEM
5.1 Supreme Court declared Caretaker Government system illegal
The Supreme Court in Bangladesh has repealed the 13th Amendment to the constitution and
because of this verdict given today the caretaker government system, once a consensus choice
of all major political parties, now stands abolished.
The apex court however has said that the next two general elections,10th and 11th,
could be held under the existing caretaker government system.The full bench of the Appellate
Division, headed by Chief Justice ABM Khairul Haque, pronounced the verdict on an appeal
for annulling a High Court ruling.Earlier, in a ruling the High Court declared the 13th
amendment valid.
The Tuesday’s ruling, however, says that parliament in the meantime can 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 caretaker
government. The bench heard the petition from March 1 to April 6 and during this time it
heard the opinion of eminent jurists like Dr. Kamal Hossain, T H Khan, Rafique-ul Haque, M
Zahir, Mahmudul Islam, Amir-Ul Islam, Roklanuddin Mahmud and Ajmalul Hossain as
amici curiae.Except Barrister Ajmalul Hossain, other jurists strongly supported the caretaker
government system.
5.2 Bangladesh's apex court declares non-party caretaker government system illegal
Bangladesh's apex court Tuesday declared illegal the constitutional provision for the non-
party caretaker government system in the country. The South Asian country's Supreme Court
(SC) has repealed the 13th amendment in constitution but said the next 10th and 11th
parliamentary elections may be held under the system to avoid any chaos.The apex court,
however, observed that parliament, meanwhile, is at liberty to amend the law under which the
chief justice or any other judges of the Appellate Division of SC are not involved in the non-
party government system in the next two elections.The six-member bench of the Appellate
Division, headed by Chief Justice ABM Khairul Haque, delivered the judgment, upon a
petition against a High Court (HC) judgment that rejected an appeal challenging the 13th
amendment to the constitution.
The bench, which heard the petition from March 1 to April 6, also heard the views of eight
senior lawyers as "amici curiae" ( friends of court).In 2004, the HC declared the caretaker
government system legal and observed that the change did not distort the basic structure of
the charter following the writ petition as public interest litigation filed in January, 2000.
Thereafter, the petitioners, who said that the caretaker government system goes against the
republican character of the state, moved their plea to the Appellate Division of the SC against
the HC order.
The caretaker government system was first introduced in 1990 when three political alliances
jointly made a demand for it after military strongman HM Ershad was deposed.
The system was institutionalized through the 13th amendment in 1996 by the then
Bangladesh Nationalist Party (BNP) government under pressure from the then main
opposition Bangladesh Awami League (AL), now ruling party. Since 1996, the caretaker
government has held the elections in 1996, 2001 and 2008.
But huge questions were raised about the system's fate after the last caretaker government,
formed in January 2007 during emergency rule followed by political crisis, ruled the country
for nearly two years.The last caretaker government had, therefore, exceeded its mandated
term, which according to the constitution allows it to stay only for 90 days.Bangladeshi Prime
Minister Sheikh Hasina, who formed government after a landslide victory in 9th
parliamentary elections in 2008, has recently proposed as AL president a special
parliamentary committee on charter review to put a timeframe on the non-party caretaker
government.She also suggested if the caretaker government fails to hold elections in three
months' period, the previous elected government would do the job.
But the country's main opposition party BNP led by two time former PM Khaleda Zia says
the AL government is hatching conspiracy to cancel the caretaker system to hold parliament
election under its regime."Parliamentary election without caretaker government will not be
allowed to be held in the country and people will not accept it, " BNP said.An appellate
division of the Supreme Court here Tuesday declared illegal a constitutional amendment that
introduced the system of elections under caretaker governments in Bangladesh, but said the
next two polls “might be” held under the provision to avoid chaos.
The supreme Court bench said the 13th amendment that introduced the existing system of
caretaker governments in 1996 was “ultra vires” or beyond the powers” of constitution.
“The constitutional (13 th Amendment Act, 1996) Act is prospectively declared void and
ultra vires to the constitution,” read verdict of the six-member apex court division headed by
chief justice A B M Khairul Haque against a 2004 High Court judgement.
But, the verdict reached by majority of the six-member apex court bench, said the next tenth
and eleventh parliamentary elections set to held in 2013 and 2018” might be” held under the
existing caretaker government system to evade chaotic situations.
Appellate Division verdict said the majority of the judges reached the decision in
accepting the appeal filed by a now dead Supreme Court lawyer.
The High Court in a 2004 verdict rejected a writ by a Supreme Court lawyer who sought
scrapping of the 13th amendment, which said the country’s immediate past chief justice would
preferably be had of the caretaker gohe provision prescribed installation of the non-party and
non-elected caretaker government for 90 days to oversee general elections at the end of the
tenure of an elected government.
The appellate division judgement allowed the next general elections to be held under
the existing system following the “age old principles” that suggest some otherwise unlawful
things can be lawful because of necessity, “safety of the people is the Supreme Law” and
“safety of the state is the Supreme Law”.
“Parliament, however, in the meantime, is at liberty to bring necessary amendments
excluding the provisions of making former chief justices or other former apex court judges as
head of the caretaker government,” the judgment said.
The verdict came after 10 days of hearing when it heard opinions of eight leading jurists as
“amici curiae” or “friends of the court” with a majority of them suggesting that the provision
of appointing former chief justices exposed the Supreme Court to a difficult situation in
keeping the higher judiciary beyond political controversies.
The Jatiya Sangsad had amended the constitution the caretaker government system in
the country in 1996 after a protracted campaign by the then main opposition Awami League
of incumbent Prime Minister Sheikh Hasina Awami League at that time feared that elections
under the then ruling Bangladesh Nationalist Party could be rigged under vernment.
27 [http://www. Judgment of Supreme Court caretaker govt.com]
Chapter-6
CONCLUSION
6.1 Recommendations
According to article 141A, c of the Bangladesh constitution if any such Proclamation is
issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place
during the period of one hundred and twenty days referred to in sub-clause c, the
Proclamation shall cease to operate at the expiration of thirty days from the date on which
Parliament first meets after its re-constitution, unless before that expiration of the meets after
its re-constitution, unless before that expiration of the said period of thirty days a resolution
approving the Proclamation has been passed by Parliament”
Also According to article 141C, 3 of the Bangladesh constitution every order made
under this article shall, as soon as may be, be laid before Parliament.
So, in the first session of the running parliament the question arose about the last
caretaker government, emergency, and all activities of the caretaker government. The very
last caretaker government passed 122 Ordinances during almost two years. Some of the
ordinances automatically became lapse for time limitation. For rest of the ordinance, the new
government must take immediate decision. Though the last caretaker government violated the
Constitution but in order to the continuation of government it is necessary to give validity of
that government. But all 122 Ordinances may not become valid, but the whole activities of
the caretaker government can not be declared invalid. If it is declared invalid in total then the
last national election and new parliament both shall become illegal. So, it solely depends on
the present parliament that how far they shall approve the activities of the caretaker
government. There are two procedures to valid those Ordinances. 1 by amendment of
constitution all become valid and latter by examine it may be modified, reconstructed, or
rejected. 2 or each of the ordinances may be examined separately and laid before parliament
for approval or rejection.
If the present parliament gives the validity of this caretaker government and in this
regard if the court reluctant to interfere, only then the last caretaker government shall achieve
it validity.
The present Awami League Government already thinks to return to the Original
Constitution of 1972 where there will be no scope for caretaker government. If that happens
then the last ruling party will conduct the election for framing a new government as their
successor. By doing this, the question of free and fair election will be in jeopardy. We don’t
want to question our electoral system again and again therefore removing the caretaker
government is not a fruitful decision rather to remove the scope for misusing the power
would be fruitful one on the present context of Bangladesh.
6.2 Conclusion
After a nine month bloodshed war and the lost of 30 lacks martyrs and the lost of dignity of 2
lacks women, Bangladesh got independence on 16th December 1971. But the ideology
worked behind the independence war, they are still to be established. Thats why, after the
lapse of 40 years from the independence we are still debating on the matter that who is the
father of nation and who declared independence of the country. The dream of democracy for
which we fought the independence war, it became a nightmare, for which the politicians of
our country are responsible. After the independence some issues like BAKSAL, suspension
of the constitution, declaration of martial law twice and lastly two years ruling by the non
elected caretaker government made the free passage of democracy gruesome. The main
reasons behind those incidences are the lust for power, setting administration by own people,
corruption, losing of faith on each other. We will not have the golden fruit of democracy
unless these mentalities are changed. As a result, after the regular interval the non elected
government like the present one shall come into the power. And repeatedly the democracy of
our country will get obstacles in its path. That is why; we are looking for a new leader from
our heat who will show us the way, lead the nation to the solid democracy and mingle the
whole nation is one unit. In the word of the famous poet Forrukh Ahmed “where is the leader
who shall lead us to cross the sea.” We have the hope that such leader will come one day.
Caretaker government system is itself a undemocratic process. The reason behind the
introduction of the caretaker government system is that the base of our democracy is shaky.
We failed to institutionalize our democracy. But in the present days, our citizens are very
much cautious, the result of which we have seen in the highly expected last national election
held on 29 December 2008. And the people of Bangladesh elected Bangladesh Awami
League with high desire for the change. So, the newly elected government should give the
priority of the aspirations of the people by institutionalizing the democracy and should
reconstruct the caretaker government system or should abolish this system. So that, no
undemocratic and illegal government, like the last caretaker government can take place to
oppress the people and stop the smooth path of the democracy of our country for which we
fought the liberation war.
28 The Constitution of the People Republic of Bangladesh
REFERENCES
Books
1. Enayetur Rahim, Electoral Polities in Bangladesh: 1975-88, Rafiuddin Ahmed ed.,
(New Delhi: South Asia publisher, 1990).
2. Fakhruddin Ahmed, The Caretakers: A First Hand Account of the Interim
Government of Bangladesh 1990-91, (Dhaka: UPL, 1998).
3. Giasuddin Molla, Democratic Institution Building Process in Bangladesh; South
Asian experience of a new Model of caretaker Government' in a Parliamentary
Framework, (Dhaka: Regional Studies, 2002) .
4. Kuldip Nayar, Caretaker Government in India, (Dhaka: Courier, 1996).
5. Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh
Perspective, ( Dhaka: BCC Foundation, 1998).
6. Nizam Ahmed, Non-party Caretaker Government in Bangladesh, (Dhaka: The
University Publisher, 2004).
7. Shamin Ahmed, The Making of Caretaker Government and Present Crisis, (Dhaka:
News Network, 2005).
8. Shaukat Mahmood and Nadem Shaukat, Constitution of the Islamic Republic of
Pakistan 197, 3rd ed., (Lahore: Legal Research Center, 1996).
Statutes
1. The Constitution of the People’s Republic of Bangladesh.
Newspapers
1. The Daily Star, (22 July, 2003).
2. The Daily Bangladesh Observer, (Dhaka) 5 August 2004).
3. The Daily Prothom Alo, (13 July, 2008).
4. The Times of India, ( 25 June, 1996).
5. The New Age (13 November 2011)