Can the interim government be transformed into a caretaker government?

Very recently, the High Court declared that the relevant provisions of the Fifteenth Amendment to the Constitution, which abolished the provision of a non-partisan caretaker government during national elections, will be repealed. 

In its ruling, the High Court said that the caretaker government system will be restored. After that historical verdict, many are claiming that the current interim government can be transformed into a caretaker government. However, according to the constitution, there is no scope for this.

In 1996, the Thirteenth Amendment to the Constitution added a provision for the formation of a nonpartisan caretaker government, which said that the recently retired Chief Justice will be the head of the caretaker government. If he does not want to be, is incapacitated, or is not available, then his previous Chief Justice will be the head. 

If he also refuses, is incapacitated, or is not available, then we have to go to the third level. The President will appoint the senior-most judge from among those who have recently retired from the Appellate Division as the head of the caretaker government. 

If he is also not available, then one will have to be selected unanimously. The President will then appoint one person as the head of the caretaker government based on consultation with all political parties and civil society citizens. However, there is also the question of age.

According to the Constitution, no adviser to the caretaker government, be it the chief adviser or another adviser, can be more than 72 years old. In this case, if the fourth option is chosen for the appointment of the chief adviser, then the issue of Dr Muhammad Yunus is not competent. 

I think that the interim government that has come into being now is due to Dr Yunus' own credibility. If he had not been there, no one would have liked this interim government the way it is. He is a universally recognised and respected person, and because of that, this government is standing like a pillar.

But since Dr Yunus is over 72, if the interim government under his leadership is announced to be merged into a caretaker government or, as many say, it will automatically be merged into a caretaker government, the first obstacle is that 'no adviser should be over 72.' When no one unanimously recognised can be found, the president himself can perform his presidential duties and the duties of chief adviser.

Then comes another issue: what will be the qualifications of the other advisers of the caretaker government? Whatever their qualifications or disqualifications, they must have the same qualifications or disqualifications as a person has to become a member of parliament. Secondly, an adviser cannot be more than 72 years old. 

One of the qualifications for becoming an adviser is that the incumbent cannot have been associated with any political party in the past and cannot be so in the present. Those who intend to participate in the next elections will also not be able to become advisers.

According to the constitution, there will be a total of 11 advisers to the caretaker government. However, the number of advisers to the current interim government is much higher. Therefore, those who think that the current interim government can automatically merge as the caretaker government, according to the Constitution, this cannot happen.

The Constitution clearly states what responsibilities a caretaker government can perform. The caretaker government will do the routine work of the government; they will do election-related work and they will not be able to participate in any policy-making tasks. 

Therefore, for those who are doing various things, including state reforms, the Constitution will clearly prevent them from being transformed into a caretaker government. The current interim government is involved in policy-level decision-making of the state, including state reforms, so it cannot be transformed into a caretaker government.

Now the question is, will this government system be automatically restored? Will the current government system automatically transform into a caretaker one? 

The answer is: It is not possible. Because there are some significant barriers, there is another issue here: according to the Constitution, the head of the caretaker government will be appointed on the basis of a unanimous agreement. 

However, the current interim government was not formed on the basis of any agreement. No one clearly knows who the adviser here is or who they became. Who appointed them, and what is the source of their appointment? However, the current government system was formed due to the urgent needs of the state; this is understandable.

Recently, the High Court annulled some aspects of the Fifteenth Amendment in its verdict. The High Court has ruled to restore the provision of the caretaker government system that was set in the Thirteenth Amendment to the Constitution, which was annulled by the Fifteenth Amendment. 

As a result, the Thirteenth Amendment, which was annulled, was restored. Before the National Parliament passed the bill to scrap the Thirteenth Amendment, the Appellate Division had declared that the amendment was illegal. 

However, in the hearing in this regard, all the amicus curiae appointed by the Appellate Division urged against the scrapping of the Thirteenth Amendment, except for one amicus curiae. Everyone said that the Thirteenth Amendment is a good amendment. 

The amicus curiae said that the caretaker government system is one of the foundations of the basic structure of the constitution; if it is attacked, the basic structure of the constitution will be attacked. There are some pillars of the Constitution that cannot be removed or changed. For example, the basic foundations of the constitution include democracy and socialism, which cannot be removed or changed. What the court says, the parliament says, or the referendum says cannot be changed by any of them.

We have seen the impact of the repeal of the Thirteenth Amendment to the Constitution; no election held since 2009 has been fair. The right to vote of citizens can only be ensured in elections held under a nonpartisan government.

Since independence, there was no doubt about the certainty of the right to vote until the 1990s. Since then, there have been many questions about general elections. However, no election has been held fairly since 2009. The demand of the people to come to power through voting is also stated in the Constitution. The will of the people is reflected through voting. The Constitution has an obligation for participatory and credible elections. If there is no participatory election, the provisions of the Constitution have been violated.

After taking formal steps to form a caretaker government, the controversial Sixth National Parliament was declared dissolved on 30 March 1996 in the face of a massive opposition movement. A caretaker government was then formed under the Thirteenth Amendment to the Constitution, and former Chief Justice, Justice Muhammad Habibur Rahman, took over as the chief adviser.  

Four days later, ten eminent persons were sworn in as advisers to the caretaker government. The then caretaker government successfully conducted the free and fair seventh parliamentary elections on 12 June 1996 and served until the Awami League, led by Sheikh Hasina, assumed power on 23 June. There was no controversy over the caretaker government of 1996. That government had become acceptable to the nation by conducting a well-participatory and credible election.

Then, on 15 July 2001, the second caretaker government was formed. Former Chief Justice, Justice Latifur Rahman, took over as the Chief Adviser. Two days later, ten advisers were sworn in. This caretaker government completed the eighth parliamentary elections on October 1, 2001, and served until the BNP took power on October 10 under the leadership of Khaleda Zia. The caretaker government led by Latifur Rahman also received praise.

The caretaker government of 2006-7 After the BNP government's term ended in October 2006, there was widespread disagreement over the formation of the caretaker government, and violence spread to various parts of the country, including the capital, Dhaka. In such a situation, the last former Chief Justice expressed his disagreement to be the chief adviser to the caretaker government. Then, the President himself took over the responsibility of the chief adviser and formed the Advisory Council.

It is worth mentioning here that when the opposition party raised objections about Justice KM Hasan, he himself refused to be the head of the caretaker.

The bill was introduced in the National Assembly on 21 March 1996 through the Thirteenth Amendment to the Constitution and passed by a vote of 268-0 on 26 March. 

The Thirteenth Amendment inserted Article 58 (b) (c) (d) (e) into the Constitution. 

These articles included the basic provisions regarding the caretaker government: After the dissolution of Parliament, a non-partisan caretaker government consisting of 11 members headed by the Chief Adviser will be formed; the caretaker government will be jointly responsible to the President; the Chief Adviser will be appointed by the President, while 10 advisers will be nominated on the advice of the Chief Adviser; the Chief Adviser will have the same rank as the Prime Minister and the advisers will have the same rank as the Minister; the non-partisan caretaker government will be engaged in the performance of its functions as an interim government, especially the day-to-day administrative work, and will refrain from taking any policy-making decisions unless absolutely necessary; The caretaker government will assist the Election Commission in conducting a neutral, transparent, and peaceful general election; the caretaker government will be declared dissolved on the day the new Prime Minister assumes office.

I would like to conclude with reference to the book "Military-backed Interim Government, 2007-2008" by Barrister Moudud Ahmed, a learned politician and senior leader of the BNP. He wrote, "…in this way, this system was accepted by the people and all political parties as a tested and accepted method to maintain the continuity of a fair and democratic system by holding a free and fair election in the country." And that was a nonpartisan caretaker government system.

In my opinion, this government system will be formed according to the provisions for the caretaker government system in the Constitution.

Ahsanul Karim is a Constitutional expert and Senior Advocate at the Supreme Court of Bangladesh.

Photo: Courtesy

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