The non-party caretaker government (“NCG”) system in Bangladesh was introduced in 1996 through the thirteenth amendment of the constitution with a view to holding free and fair elections for the national parliament. Three elections had been carried out under the NCG system (1996, 2001 and 2008). The unique form was brought into effect due to extreme distrust between the ruling and the opposition political parties. Many procedural defects hampered the operation of the established caretaker governments in the 13th amendment. The framework of caretaker government had been greatly influenced by internal causes such as political instability, lack of military professionalism and institutional pitfalls. However, the NCG was abolished by the Parliament in 2011 on the basis of a decision of the Supreme Court.
Context of NCG’s Birth
The thirteenth amendment was made in the context of the situation created in 1996 when the election held by the outgoing government had been rejected by the opposition parties as neither free nor fair. The results were announced showing a larger turnout when it was widely perceived to have been participated by less than 5% voters and all the opposition parties had refrained from participation. They had been offended by the malpractices in the infamous Magura bye-election. This created a situation where there was a demand for fresh election. The question was who would conduct the election.
There was only the precedent of the election which was conducted by Chief Justice Shahabuddin Ahmad in 1991 in the very special circumstances when General Ershad had been compelled to resign and there was need for an acceptable neutral administration to conduct the election. The alternative which was being projected was a martial law proclamation, which would have totally undermined the constitutional order to protect the constitution. There was a proposal to establish a caretaker government by having an amendment adopted by the sixth parliament whose constitutionality itself was not free from questioning. In the end the adoption of the thirteenth amendment was, thought to be the best alternative.
This amendment was passed with 268-0 votes on 26th March, 1996 and it became a 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, 58C, 58D and 58E). It also introduced amendment Articles 61, 99, 123, 147, 152 and the third schedule of the constitution. The amendment contained provisions of keeping some articles 48(3), 141A9(1), and 141C(1) ineffective during the period of the caretaker government.
Though the NCG system was hailed by people at home and abroad, from the beginning of the introduction of the caretaker system, however, scholars, observers and political leaders identified its structural deficiencies, limitations and some contradictory features.
By enacting the thirteenth amendment, the rule of the people of Bangladesh has been denied for 90 days, as during this period the country has to be governed by the unelected people and by such constitutional dispensation, the supremacy of the people as enshrined in article 7 as well as the preamble of the constitution has been impaired.
The thirteenth amendment has destroyed the 3(three) basic structures of the constitution of Bangladesh, namely, the democracy, the independence of judiciary and the separation of powers. This amendment suspended the provisions of article 55 and thereby has taken away the mandate of the people who elected the Prime Minister. Furthermore, the concept of the NCG has been brought into the constitution replacing the elected representatives of the people and thereby the republic and the democratic structure of the constitution have been given a go-by. During the operation of a NCG, the executive power of the republic vested with the Chief Adviser, an unelected person for ninety days and thereby the mandate of the people as given in article 7 is rendered useless.
The NCG also impairs the independence of judiciary by inserting the provisions for appointment of the retired Chief Justices of Bangladesh and the retired Judges of the Appellate Division as Chief Adviser. Such provisions have also destroyed the well rooted concept of separation of powers between executive and the judiciary, another basic structure of the constitution.
The thirteenth amendment could have served well if a non-partisan president was subjected to it. The amendment changed Article 61 of the constitution giving full authority to the President over the nation during the term of the NCG. Such control is usually the characteristic of a presidential form of government as opposed to a parliamentary one. The reform, thus, gave the President absolute power, an authority not accorded in compliance with the constitution to an elected government.
The amendment also altered the basic structure of the constitution/government of the country. Bangladesh, as a parliamentary democracy, normally practices a system where the PM enjoys the confidence of the parliament and acts as the executive chief of the country and the President works as a titular head. As a result, the titular President becomes a ‘real’ President when the NCG takes the charge of the state affairs. The amendment stated, “The Non- Party Care-taker Government shall be collectively responsible to the President. During the tenure of the caretaker government the system of government took a completely different turn and the parliamentary form of government became an interim presidential form of government.”
The amendment conferred some real and absolute powers to the President who is not entitled to have all these powers under the constitution. In exercising these powers, the President is beyond the reach of the NCG. It thus transforms the figurehead President to an all-powered President, effectively introducing an interim presidential form of government during the tenure of the NCG. It has created two separates but potentially conflicting sources of governmental power: The President and the NCG. These are affirmatively inconsistent with, and repugnant to, the basic structure of the constitution.
In normal times, the President acts, except appointing the PM and the Chief Justice, as per the advice of the PM. During the tenure of the NCG, the President did not need to act in accordance with the advice of the CA. He enjoyed more freedom in his actions. The amendment gave the President power to administer the defence services. It also empowered the president to declare emergency without the concurrence of the CA if he is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance.
The NCG failed to work as evident from the military backed regime during 2006 to 2008. As per article 58D, the NCG shall not make any policy decision, but in case of emergency such as, foreign policy, there cannot be anything as routine functions and the decision has to be given immediately, so the NCG system suffers from lack of proper authority to take decision on policy matter. Furthermore, the caretaker provisions were applicable to national elections only. Local government polls are indispensable to ensure the grassroots democracy. It had been argued that by ignoring elections and local government polls, the NCG system left a major arena open for electoral corruptions.
It has been said and expected that the members of the NCG and the CA would be non-political and they would have no previous link with any political party. These non-political persons were given to manage the most political event, the national elections. It was also a paradox. “There is thus”, one scholar has apprehended, “a risk that a lack of experience of the NCG in handling party political matter may make it insensitive to politicians’ problems and priorities.”
The Supreme Court in its historic ruling on 10 May 2011, held the 13th Amendment of 1996 introducing the NCG prospectively void and unconstitutional. The ruling did not apply retrospectively to nullify past elections under the NCGs. Former Chief Justice ABM Khairul Haque had signed the 342-page judgment in the Supreme Court on 13 September, 2012. He was the top judge who headed the seven-strong benches that delivered the verdict on May 10, 2011. Justices Mahmud Hossain, Sinha and Mozammel Hossain agreed with him. Justices Wahab Miah and Sultana differed while Justice Iman Ali left the matter for the parliament to decide. The bench, which heard the petition from March 1 to April 6, also heard the views of eight senior lawyers as “amici curiae”.
The then Chief Justice ABM Khairul Haque mentioned in his judgment that as per Article 55(3) of the constitution, the prime minister and the cabinet are responsible to the parliament. It is democratic in character. But the 13th amendment changed this character by making the caretaker government responsible to the president [Article 58B (2)]. (Para 966) The prime minister’s advice is a must for the president as provided in Article 48(3). His counter signature is necessary to declare state of emergency [Articles 141A (1), 141C (1)]. But this provision has been ineffective during caretaker government (Article 58E). In this way, the people’s role has been ousted and this is contradictory to democracy. There is also the possibility of being autocratic by the president. (Para-961, 965, 967).
Furthermore, he explained in his judgment that the constitution gives the power of defense section to the executive who is the representatives of the people. But during caretaker government the president takes over the responsibility of ministry of defense though he is not elected representative. Therefore, performing this executive duty contradicts the plan of the original constitution. (Para-960) While the parliament is not in session, the president promulgates the ordinance after approving it in the cabinet meeting. But during caretaker government the ordinance is approved by the advisers who are not elected representatives of the people. [Para-973]. In fact, the said amendment destroyed the republican and democratic character of the state. Para-1011]. If the president assumes the post of the chief adviser as an additional duty under Article 58C (6) he will be autocratic. [Para-1015]
Finally, in his judgement he articulated that as per Articles 56(4), 57(3), 72(3), 72(4) and 123(3) of the Constitution, the prime minister and the cabinet will continue in the office after dissolution of parliament till a new parliament comes. As such the peoples’ participation will continue and it never disrupts. [Para-1097, 1099, 1108]
The Parliament was also asked by the court to make constitutional amendments to ensure that the former Chief Justices or any other judges from the Supreme Court are not selected to head the caretaker governments, The idea that all parliamentary acts are, as a matter of fact, legitimate as these acts are enacted by the elected representatives is essentially problematic because of the perception that our parliament is the sovereign law-making institution like that of the British Parliament. However, Bangladesh Parliament, unlike that of the British Parliament, operates under a specific written constitution where Article 7 provides that a law should not be enacted if it is repugnant to or inconsistent with the Constitution. The SC, as the custodian of the Constitution, can declare any parliamentary act illegal if the act is repugnant to or inconsistent with the Constitution due to its judicial review power. Such instances are numerous.
It is very common in most places of the world that judicial review power is exercised by apex judiciary under written constitutions, starting from Marbury v Madison (US SC 1803). In case of Anwar Hossain Chowdhury in 1989 and in the cases of 5th and 7th amendments in recent times, the SC of Bangladesh has exercised this power. There is barely any difference between the 5th, 7th, and 13th amendments as far as their constitutional consistency is concerned. The SC has a responsibility to tidy up the constitutional mess which is created by those amendments which serve sectarian interests by making the supreme law of the land self-contradictory and incoherent. Those people/parties who got benefited from this mess consider this power of the SC controversial. But must be respected because it is dignified constitutionalism.
It is a settled principle of law that in view of the separation of powers envisaged in the Constitution of Bangladesh, a judgement of a court cannot be made inoperative by a legislature. Article 102 of the constitution dealing with writ jurisdiction is part of the basic structure of the Constitution of Bangladesh in other words the very soul of the Constitution without which other articles would become unenforceable. Even a Constitution amendment cannot whittle down the jurisdiction of a court under these provisions.
The Government of Bangladesh should be forward thinking aiming to further strengthen the Election Commission for ensuring “effective participation of all the people in a more free and fair election”. The Election Commission should nurture an enabling environment to hold the elections in a manner perceived by the people as free and fair through effective participation of all the voters and contestants in a healthy democratic atmosphere. By making the Election Commission more powerful and independent, free, fair and impartial general elections of members of parliament can be ensured under the political government rather than reintroducing the system of NCG through a constitution amendment which have already been declared unconstitutional by the apex court of Bangladesh. This proposal would make the irregular regular. It would make the non-routine routine. The proposal would mark a significant indicator of the diminishing status of the rule of law in Bangladeshi democracy.