Constitutional framework
The constitution provides a framework for the formation of a democratic representative government and makes detailed provisions for the interim period between the dissolution of Parliament and the holding of a free and fair election to constitute the next Parliament ("the interim period").

The novel institution of a caretaker government to oversee elections was prompted to prevent the deliberate management and engineering of elections and their results by the party in power. The experience of the 1986 election, in which the incumbent government had grossly misused the state machinery, had prompted demands for holding an election not under the president but under an impartial, caretaker administration in 1991, which was done. The February 1996 election held under the outgoing party government, which was also manipulated, led to a popular demand for a free and fair election under a non-party caretaker government. The Thirteenth Amendment (Article 58C) for a non-party caretaker government was incorporated as a permanent feature of the constitution.

The object of this article was to induct a non-party caretaker government for the interim period to provide all possible assistance to the Election Commission for ensuring "the holding of the general election ... peacefully, fairly and impartially." (Article 58D(2))

Impartial umpiring essential
The commitment to hold fair elections "peacefully, fairly and impartially" is of fundamental importance in order that the citizens are assured that a Parliament is formed by persons whom they choose through a truly free and fair election, not manipulated and managed with the use of black-money, illicit arms and misuse of state machinery.

An election is an electoral contest between competing parties, in which the umpire/referee (caretaker government and Election Commission) must be impartial and neutral. They must effectively enforce the law to prevent: (a) the use of black-money, (b) the use of illicit arms and muscleman, and (c) misuse of government machinery and its functionaries, so as to ensure that the elections are free and fair.

Non-party caretaker government
The non-party caretaker government (together with an independent Election Commission) plays the role of an umpire. The umpire to be effective must be independent and impartial and must be perceived as such by citizens and contesting parties alike. It must be above all controversy to ensure the holding of an election which is free and fair and above controversy.

Role and responsibility of president
The president is required by Article 58C, therefore, to act carefully and conscientiously, so as to comply with the guidelines laid down in this article through an objective evaluation of the person to be appointed chief adviser, duly taking into account all relevant circumstances. The president is required to proceed according to Article 58C(3) to (5).

Article 58C contemplates that the president shall follow the guidelines contained in clauses 3, 4 and 5 of that article. He is expected to follow a process in which the first name to be considered is that of the person who among the retired Chief Justices of Bangladesh, retired last (and who is qualified to be an Adviser). If such a retired Chief Justice is not available or is unwilling or unable to hold office of Chief Adviser:

Clause 3 directs the president to consider the person who "among the retired Chief Justices, retired next before the last Chief Justice."

Clause 4 provides that if no retired chief Justice is available or unwilling 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." If no such retired judge of the Appellate Division is available or is unwilling, then

Clause 5 directs the president, after consultation as far as practicable, with the major political parties, to appoint the chief adviser from among the citizens of Bangladesh who are qualified to be appointed as adviser under this article.

Thus, if effect cannot be given to clauses 3 and 4 because no retired chief justice, and failing that no retired Appellate Division judge, below the age of 72 years is available, then the constitutional responsibility devolves upon the president under clause 5 to hold consultations with the major political parties as far as practicable, and then appoint as chief adviser, a person having the qualifications set out in clause (7) of Article 58C as follows:

Qualifications for chief adviser
Article 58(C):
"(7) The President shall appoint Advisers (Chief Adviser) from among the persons who are-
(a)qualified for election as members of Parliament;
(b) not members of any political party or any organization associated with or 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."

These are the only requirements as far as formal qualifications are concerned. When exercising his power, the president is expected to be guided by his best judgment, conforming to the guidelines laid down in clauses 3, 4 and 5 to appoint a person who is widely respected and enjoys confidence of citizens as a whole as a person of integrity and who is competent to discharge his constitutional role impartially and effectively to ensure the holding of a peaceful, free, and impartial election.

The compelling need for a caretaker government with a non-party character is that it must take prompt and effective steps to counter the actions of the outgoing government, which are calculated to give it undue advantage and thus prevent the creation of a level playing field for a free and fair election.

The effectiveness of the caretaker government is to be tested by its actions, in particular, by its capacity to demonstrate that the rule of law stands restored. The actions of the outgoing government which need immediate correction are:

• Election Commission: Appointment of CEC and members of the commission whose impartiality and competence have been questioned from the very outset, and their own subsequent conduct has confirmed their partisanship and incompetence. This has also been recognized by the Appellate Division. The EC is totally dysfunctional, distrusted, and incapable of conducting a free and fair election.
• Administrative transfers and postings: At all levels hand-picked party loyalists were posted in the administration, police, and security agencies by the outgoing government. Public servants who are not regarded as loyalists have had their service terminated arbitrarily or they have been made OSD.
• Impunity of party armed cadres and terrorists: The outgoing government has maintained its network of armed cadres who continue to be patronized by political godfathers.
• Impunity in respect of gross corruption: Party leaders at the highest level have practiced gross corruption of unprecedented levels generating black money which would be deployed to undermine free and fair elections.
• Media: The state owned media has been used by the outgoing government as a party propaganda organization disseminating disinformation or false information. Gross discrimination has been exercised in granting of frequency allocations to several new TV stations, directly or indirectly owned, or patronized by persons close to the outgoing government, while the original independent TV station (Ekushey) has been denied a frequency allocation for over twenty months even after it obtained a license through the intervention of the Supreme Court.
• Systematic abuse of law and criminal justice: The law has been used to harass political opponents and to prevent and deny prosecution of party loyalists and allies. Mass arrests are being carried out indiscriminately while no action is being taken against known party cadres of the outgoing government, who attacked and set fire to houses, cars and work places of former leaders of the outgoing party who resigned to launch a new party.

Citizens of Bangladesh were keenly awaiting the establishment of a non-party caretaker government which would from the very outset be seen to be taking immediate and effective action to correct the above malpractices and misgovernance.

A caretaker government is expected to be a truly non-party government and to be seen as such. Its actions should prove its non-partisan character and capacity to take corrective actions, in order to create a level playing field. Such corrective actions are to be taken without delay. The outgoing government is seen to be actively deploying its armed cadres and illegally acquired money to vitiate the environment. If not corrected by prompt law-enforcement, this would significantly reduce the prospect for a free and fair election.

The distribution of portfolios has imposed upon the president the burden of administering an impossibly large number of subjects, ranging from defense, home affairs, foreign affairs and establishment, to several others. This, in effect, means that hand picked and remote-controlled loyalists of the outgoing government will be administering the key sectors as it is humanly impossible for one person to do so. It is, therefore, imperative, if the constitution is to be respected and made operative, that the president should forthwith appoint a chief adviser according to the constitution.

The present "caretaker government" cannot continue to remain an impotent bystander while the administration, the law-enforcing agencies, and the state machinery are manipulated by an "invisible government," which has at its core loyalists of the out-going government. To allow them to do so, without accountability and with impunity for corruption and misgover-nance, amounts to subversion of the constitution.

There is still time to save the country from a constitutional crisis by appointing, without delay, a non-party chief adviser, following the guidelines of clauses 3 to 5 of Article 58C. This would carry out the basic purpose of assuring the nation that it would be governed in the interim period till the election of the next Parliament by a non-party caretaker government so that it could, together with an independent Election Commission, hold a fair, free, and peaceful election.

Dr Kamal Hossain is Bangladesh's pre-eminent constitutional lawyer.