12:00 AM, December 03, 2012 / LAST MODIFIED: 12:00 AM, December 03, 2012

Caretaker government issue: Back to square one

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Monowarul Hoque

When the idea of the caretaker government system was floated in 1996 by Jamaat and then picked up by Awami League, it was fiercely opposed by the BNP which was in power. And now that it has been cancelled, demand for its restoration is being opposed tooth and nail by the government again, only the party that leads the government is Awami League.
The thought of having such a system reflected the fragility of our democracy and political strength -- we could not trust a government to hold free and fair elections. And yet it gained popularity because we needed a quick fix against rigging and botched elections.
The present demand for restoration of caretaker government only shows how little we have thought of institutionalising democracy since 1991, when the regime of General Ershad ended and the first free and fair parliamentary elections were held.
Four main pillars -- Parliament, Election Commission, judiciary and bureaucracy -- that could ensure free and fair polls even without a caretaker government have been deliberately weakened by subsequent governments.
Parliament has been boycotted year after year by the opposition, the opposition has been denied a voice by the treasury bench, parliamentary debates have been trivialised and Article 70, that bars expression of individual opinion irrespective of party alignment, has been firmly put in place.
The Election Commission (EC) has also remained a subject of question regarding its neutrality. This is because its commissioners are nominated by the prime minister and appointed by the president. And therefore, the opposition has always cried foul about the EC.
The judiciary is the caretaker of the constitution and its independence can be maintained by not making appointments political. But we have seen repeat shows of supersession in appointment of the chief justice both by the BNP and the Awami League governments.
And it is no secret that the bureaucracy is now ever politicised.
All these conditions have led to the thinking that a fair election cannot be held without a caretaker government in place. But even then every losing party has talked of rigging and election engineering after each election.
Now, as the BNP demands restoration of the caretaker government (as it thinks it is time for it to get back to power as Awami League and BNP have been in power alternately) and the Awami League opposes it, neither of them pays heed to strengthening the democratic institutions, especially the EC and the judiciary.
One can look at the cases of India and Pakistan to know how they have secured or try to secure neutrality of these two institutions.
In India's 65 years of history, only one chief justice was appointed in 1975 during Indira Gandhi's time by superseding two senior Appellate Division judges. A case was filed with the administrative tribunal of the Supreme Court against this appointment and the verdict was that the decision of appointment was not acceptable. Since then no other attempts have been made to supersede a judge.
In Bangladesh, the law ministry proposes judges' appointment and the president carries out the action. The judicial council has no role whatsoever. The chief justice is supposed to be consulted, it is mandatory in the constitution.
A country like Pakistan, which has fledgling democracy and is plagued by problems like corruption and terrorism, has probably carried out the most interesting reforms through the 18th Amendment to the Constitution to stop supersession of judges. A 12-member judicial council consisting of the chief justice, senior judges, two retired judges and the attorney general appoints judges there. A detailed guideline has been drawn up to set the criteria for appointment of a judge.
The Indian system for appointing election commissioners is no better than Bangladesh's as the prime minister nominates them. But moves are on to change the system. L.K. Advani, on June 7, 2011, wrote to the prime minister that the existing system was faulty. He suggested that the selection committee should be comprised of the prime minister, the opposition leader, the chief justice and the law minister. The senior-most person among the commissioners should be the chief election commissioner. Prime Minister Manmohan Singh has agreed to the proposal. HC judges are appointed through public exams in the states.
Pakistan, through the 18th Amendment, has put in a transparent system. The chief election commissioner is appointed by consensus of the leader of the house and the opposition leader. Out of three names one will be picked by the standing committee on judiciary having equal representation of position and opposition.
So, through all these measures, the institutions that can ensure free and fair elections have been strengthened and the people's trust in the system has been restored. And when you have such a system in place, you do not actually need a caretaker government to hold elections.
But democracy has to be institutionalised first. The present government with its three-fourths majority in parliament has the power to bring in such changes that would make the need for a caretaker government redundant.

The writer is a former student leader and currently a businessman.

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