The recent judgement of the Appellate Division declaring the non-party caretaker government (CTG) unconstitutional has generated quite a bit of controversy. The opposition BNP has already rejected it. Personally, I welcome the judgement, although, without responsible behaviour on the part of our politicians, it may lead the nation to an uncertain future.
Along with making the CTG illegal, the Court, considering public interest, recommended a continuation of the system for another two terms and exclusion of the judiciary from it. These recommendations need to be acted upon by the Parliament, and thus the decision about the future of CTG now lies in the politicians’ court.
Some observers find the judgement contradictory, but I disagree. It addresses two issues — one legal and the other political. The constitutionality of the CTG is a legal issue. The decision to continue it is a political issue.
I have been arguing for a long time that the CTG is an undemocratic system. Democracy is included in the Fundamental Principles of our Constitution. It is also a part of the basic structure of our Constitution. Thus, the Court rightly declared it unconstitutional.
The CTG has other inherent weaknesses also. The system encouraged our political parties in power to behave irresponsibly as they, at the end of their terms, would not be responsible for holding free and fair elections. Consequently, they indulged in much mischief — such as politicisation of the bureaucracy, packing the constitutional bodies like the Election Commission (EC) with party loyalists, designating allegedly partisan individuals as chief advisers — which created formidable challenges for the CTG in its efforts to hold fair elections. Such irresponsibility, needless to say, caused our political system to break down in 2006, leading to the formation of an army-backed CTG and the political tsunami that followed.
The CTG is an insult to politicians and is beset with an internal contradiction. The system essentially conveys the message that politicians cannot be trusted to hold free and fair elections, but they can be given the responsibility, after elections, to govern honestly and protect the interests of the citizens. In addition, it is an unstable system as the ruling party almost invariably wants to disband or at least manipulate it, while the opposition wants its continuation. In fact, the previous proponents of the system are now its opponents and previous opponents are its vigorous proponents. Thus, no political agreement or political will exists to make it function effectively.
In addition, all the excesses and agitations to adopt and keep the CTG in place over the years diverted the attention of the citizens from after-election governance to the elections themselves. This paved the way for an election-centred and Parliament-oriented “one day democracy” with total disregard for good and effective governance later. This in turn facilitated looting, plundering and misgovernance by democratically elected governments in the past and ushered into our country the best democracy that money can buy. Such a system of “dirty democracy” created incentives to cling to power at all costs and engage in manipulations to make it happen.
Furthermore, the CTG was adopted to avoid deeper problems. It may be remembered that the demand for the CTG first surfaced after the Magura by-elections in 1996, where the ruling party indulged in corrupt practices and the EC failed to prevent it. Preventing such misdeeds in the future would require reforming political parties and reconstituting the EC. Instead, our politicans invented the system of CTG and swept the underlying problems under the rug.
These weaknesses of the CTG caused irreparable harm, causing our democratic system to become ineffective because of the lack of a strong institutional base. All the manipulations of the CTG and misgovernance after elections also made our state progressively weaker. Thus, the sooner this undemocratic and unstable system, which hides problems under the rug, is done away with the better it will be for the nation. The Court judgement has created such an opportunity. In fact, the Court gave a wake-up call to our politicans that, for the sake of greater national interest, they must soon come to an agreement on certain basic issues of governance, including the system of CTG.
However, it must not be forgotten that the CTG has had many outstanding achievements. A reliable electoral roll with photographs was created during the tenure of the last CTG. During the same period, many systemic and institutional reforms were initiated and a number of progressive laws were framed, although some were not approved by the 9th Parliament. Steps were also taken to separate the judiciary from administration, free the EC secretariat from the clutches of the Prime Minister’s Office, make the Anti-Corruption Commission functional, and so on. Most importantly, all the CTGs were by and large able to deliver free and fair elections.
Nevertheless, I am of the view that this undemocratic, unstable and problem-avoiding system cannot be a long-term solution to our problems of predatory politics and misgovernance — because the reforms initiated under the CTG do not sustain or are totally ignored by subsequent governments. An ideal solution of the prevailing problems would, therefore, require changing the mindset of politicians and the creation of a new political culture so that they would come forward to clean up their own acts and reform the system.
It is thus clear that the system of CTG does not signify robustness of our democracy and is not a sustainable, long-term solution to our problems, and the Court gave the green light to disband it. However, such disbanding cannot be done immediately as it will create uncertainty for our future national elections, since our politicians have yet to earn the credibility that they can be relied upon to hold free and fair elections because of their continued manipulations to influence elections and misgovernance afterwards.
Such a decision at this time would amount to allowing our politicians to play “Russian Roulette” with the future of our nation. Perhaps that is why the Court recommended that the CTG be continued for another two terms, although some want it to continue until our political culture changes. In fact, the Court has issued a challenge to our politicans to urgently come to an agreement on important issues of governance and has also set a time-limit to change our political culture.
In light of the Court judgment, politicians must immediately come to a negotiated settlement on two important issues; the constitution of the next NCG so that the judiciary is not adversely impacted, and the formulation of a reform agenda so that the 12th Parliament election can be held under a party government. The Parliamentary Special Committee must catalyse such a settlement.
On May 3, before the Court judgement, I recommended to the Committee to disband the CTG after two more terms. I also proposed that a panel be created with all the retiring chief justices and the justices of the Appellate Division, and that they be given the mandate to select, either unanimously or with two-thirds majority, a chief adviser from among them for the next CTG. The earliest retiring chief justice may be mandated to chair the panel.
As a conclusion, let me quote Benjamin Franklin. During the American Constitutional Convention held in 1787, a lady asked Mr. Franklin what kind of Constitution he and his colleagues were framing. His answer was: “A republic, Madam, if you can keep it!” Similarly, the future of our hard-earned democracy will depend on the responsibility and wisdom of our politicians in general, and the members of the Special Committee in particular. May God Almighty help them!
Reference by: The Daily Star, 31st May 2011