Open Source Software : Good Bye to Digital Divide Md. Anwarul Kabir

Peoplesï¿½ Perceptions and Constitutionality of the Incumbent Government

Md. Anwarul Kabir

Published on September 27, 2007

The article entitled ï¿½Constitutionality of the caretaker governmentï¿½ (published in the Daily Star of September 11), authored by Barrister Harun ur Rashid has prompted me to write the present article. Unfortunately, the observation of the reverend author regarding the incumbent government is clearly misleading based on misinterpreted constitutional provisions. The essence of his article that the present government has been working within constitutional provisions in all respect is, in fact, contrary to the reality; if we objectively probe into the constitution then it can be asserted that since the inception of the Caretaker Government headed by Prof. Iajuddin Ahmed until the tenure of the government headed by Dr. Fakhruddin Ahmed, some of the constitutional provisions have been grossly violated. In fact, such violations have put the country in a state of jargon with ambiguous constitutional footings.

Perhaps due to this ambiguity, even the people at the power centre are contradicting each other in defining the nature of the government. After the August student agitation, in a meeting with the news editors of the electronic media, our Barrister Advisor Mainul Hossain, who is also in charge of law ministry has termed the incumbent government as a national government. Subsequently, in the following day, the sitting army chief General M U Ahmed has discarded this notion and confirmed that this government is neither a national government nor an army backed interim government. Then what will be the nature of the government? To get the concrete answer to these questions one need not to be an expert of constitution. Rather a simple analysis in light of constitution will lead to a logical conclusion in this regard. The following sections have tried to capture some popular notions surrounding the government with a view to revealing the constitutionality of the government.

a) Present government is a national government: The present government, by no means, fits with the very definition of the national government. The national government is, in fact, a united government which should be constituted with the representatives from all the major political parties of the country. But the advisors of the present government including its head Dr. Fakhruddin Ahmed are non-political in accordance with the provision of the non-partisan caretaker government of the constitution. Moreover, our constitution has no provision for forming a national government. Perhaps, understanding this reality the army chief has rightly discarded the notion of national government that perceived by Barrister Mainul Hossain

b) The present government is an Army Backed Interim Government: This strongly rooted perception among the mindset of the people has some ground realities. If we shed light on the way of installation of this government, we cannot fully negate this notion. This is now an open secret that the caretaker government headed by Prof. Iajuddin Ahmed resigned under the tremendous pressure of army administration on January 11. Besides, the selection of Dr. Fakhruddin Ahmed as the Chief Advisor of the government, presumably was carried out by the same administration.

Prevalent dominance of army in different civil administration is one of the reasons which coined the terminology ï¿½the army backed interim governmentï¿½. Besides, the mass media has also popularised this terminology in defining this government. But in our constitution there is no clause for such army backed government.

c) The country is under military rules (martial law): Some individuals have opined that the

country at present is under military or quasi-military regime. Again the growth of such perception among the mindset of these individuals is, in fact, due to dominance of army administration over the civil administration. Parallel to Anti Corruption Commission, formation of the National Task Force under army administration has supported this assertion. Some activities of this Task Force, for instance arresting the political leaders and sending them to the Task Force Intelligent Cell for interrogation, and the way of eliciting ï¿½confessional statementsï¿½ have reminded the shadow of martial law regimes. During the tenure of this government, in the new context, some administrative changes have placed the army officials at the top level of different government agencies (e.g. RAJUK, Bangladesh Cricket Control Board). This is a common practice of any military or quasi-military regime. In this context, another point is to be mentioned. Under the civil government, it is a common practice for the defence leadership to stay in a low profile and military high-ups usually refrain themselves from participating in any discussions on political issues. Contrary to this custom, the involvement of the present army chief in political discourse as well as his interactions with the general public and mass media have also confused the people in defining the nature of this government.

However, a close investigation in light of constitution reveals that the country is not under martial law as the precondition of martial is to suspend the constitution with a formal promulgation by introducing various martial law ordinances. But the installation of the present government on the 12^th January has been formally carried out by the elected president following the constitutional provision of the Non-Party Caretaker Government (Chapter II A of the constitution). So, definitely this government is not running under martial law although there are some clear deviations of constitution have been noted (discussed in the next section).

The question of quasi military government is a matter of perception. Even the democratically elected tenures of Zia and Ershad, to many political analysts, have been marked as quasi military regimes as at those period the dominance of army administration over the civil administration were prevalent. So, whether this government is a quasi-military government or not can be a discourse of perception. But there is no legal framework for quasi military government in our constitution.

d) The present government is a constitutionally defined Non-party caretaker government: We have already discussed on several issues relevant to some popular notions towards the present government and have revealed that these notions have no constitutional validity. However, the fact is that on the 12^th January this government has been installed under the constitutional provision of Non-party caretaker government (Chapter IIA of the constitution) and the president has appointed the Chief Advisor and other advisors following the article 58C(1). So, at least this government has the constitutional coverage as Non-Party caretaker government.

But whether the way of appointment of the government and afterwards whether the government has been following the constitutional provisions are the matter of legal debates. Even in some cases clear cut violation of constitution have been noted. The following sections focus on these issues:

i. There is no consecutive caretaker government: The observation of Advocate Sultana Kamal, the former adviser of the caretaker government, is ï¿½If we follow the constitution, we will see the present government is not above question. There is no option in the constitution to have two caretaker governments in a row.' If we analyze the constitution then, we can not discard her notion. However, without mentioning any name, Barrister Harun has cited the arguments of ï¿½many legal expertsï¿½ against this notion and the essence of the arguments is, ï¿½there is no bar in the constitution for the president to appoint a second CTG, in the event that the first one is found to be incapable of holding an election in a free, fair and credible manner.ï¿½ This is, indeed, a lame excuse. For instance, we can not form a national government right now following the argument that there is no bar in the constitution against a national government. For this either an amendment of constitution or a referendum is a must. So we can not deny the fact that by forming second caretaker government, the constitutional provision has been violated.

Another point can be mentioned here that had the president seek the opinion of the Supreme Court following the Article 106 of the constitution (Which provides the Supreme Court with advisory jurisdiction), the government would have not fallen into such a constitutional debate. However, right now this deviation of constitution can only be endorsed by emphasizing the doctrine of necessity. But any doctrine of necessity must be ratified in the parliament whenever possible. So, after the election, in the forthcoming parliament the initiation of this government violating the constitutional provision must be ratified.

ii. The selection procedure of the Chief Advisor has not followed the constitutional provision: Article 58C(5) of the constitution has suggested that in appointing the Chief Advisor from among the citizens of Bangladesh (other than constitutional provisions (article 58C(3) and 58C(4)) for appointing judges to the post of the Chief Advisor), the president shall consult the major political parties as far as practicable. But in appointing Dr. Fakruddin as Chief Advisor such consultation with the major political parties was not held. This can also be treated as a clear violation of the constitution. However, in this regard, Barrister Harun has argued that as the president declared emergency on January 11 and so it was not possible on his part to consult the political parties. But in this context it can be argued that to pave the way for arranging such consultation as suggested by the constitution, the president could relax some provisions of emergency rules as the president has all the authority to do that.

iii. 90 days binding for holding the national election: Article 123(3): A general election of members of parliament shall be held within ninety days after parliament is dissolved, whether by reason of the expiration of its term or otherwise than by reason of such expiration.

The above article has explicitly mandated to hold the election within 90 days after the expiry of the parliament. However, the failure of the first caretaker government headed by Prof. Iajuddin Ahmed has created the problem in this context. But after assumption of subsequent caretaker government headed by Dr. Fakhruddin Ahmed it had been expected that the election would be held within 180 days as some additional time might require for preparing a flawless voters-list. This speculation was originated in Article 123(4) in the context of arranging any by-poll due to vacancy of any member of parliament for any reason. This article states, ï¿½ ï¿½. Provided that in a case where, in the opinion of the Chief Election Commissioner, it

is not possible, for any reasons of an act of God, to hold such election within the period specified in this clause, such election shall be held within ninety days following next after the last day of such period.ï¿½ This article endorses to take another 90 days and the Chief Election Commissioner should have some opinion in favour of extension of the assigned time period. But in reality the Chief Election Commissioner has not given any clarification in this context. Instead he has announced ï¿½18 month Roadmapï¿½ for the election which can be regarded a severe violation of the constitution.

In support of this violation of constitution, Barrister Harun has argued that Article 58D(2) has suggested, as the holding of a peaceful, free and fair election is the prime concern of the caretaker government, time limit should not be any bar (i.e. whatever the time required to hold such an election is not a matter at all!). This notion is indeed contrary to the spirit of the constitution. As par Article 7(1) our constitution has emphasized the peoplesï¿½ power and the exercise of peoplesï¿½ power is only possible if the government is an elected one. So, the tenure of an unelected government more than a year or more can not be endorsed by our constitution for any reason.

iv. The caretaker government is working beyond its jurisdiction: 58D(1): ï¿½The Non-Party caretaker government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions it shall not make any policy decision.ï¿½ Contrary to this binding of the constitution, in reality, the functions of this government have not been limited to routine works only--- rather some functions discharged by this government have treated as policy decision. For instance, its decision to shut down the government jute mills, reformation of Biman, the state owned airline can be cited in this context. This is also a serious violation of the constitution.

v. The tenure of a caretaker government should not be elongated: Article 58D(1) has termed the Non-Partisan caretaker government as an interim government. An interim government, in fact, is a transient and short-lived government and the tenure of such a government ideally should not exceed more than six months. But according to the roadmap for election, the general election will be held perhaps sometime in December. This implies that the life span of this government will be more or less than two years. Clearly this has distorted the concept of the interim government as well as the spirit of the constitution.

However, in support of the prolonged tenure of this government Barrister Harun has cited the Article 58B(1) of the constitution. This article states that the tenure of the caretaker government expires only when a new parliament is elected and a new prime minister takes his/her office. However, this assertion derived from the article 58B(1) can be considered as constitutional fallacy or at best as constitutional loophole. In fact, the interpretation of this article needs to consider some other factors. The prerequisite of this article is that the election should be conducted within 90 days as par article 123(3). Moreover, we have to consider the spirit of the constitution. So, after the election, the elected prime minister should assume the office as soon as possible (although the constitution has not given any time limit in this case). This is because the spirit of the constitution does not suggest an unelected governmentï¿½s staying in power more than necessary.

Perhaps, assessing the above stated violations of the constitution, many conscious citizens of the country are really confused about the constitutionality of the present government. In this context the veteran politician and the author of our constitution Dr. Kamal Husein has reminded us that we should not ask this delicate question on the constitutionality of this government because many a time the constitution was maimed and disfigured by the military since 1975. From this statement, it is implicitly evident that to the eyes of Dr. Kamal constitutionally this government is not flawless. Even despite Barrister Harunï¿½s assertion that the present government has been working in constitutional provisions, he has not negated the necessity of ratification of some activities of this government in the next parliament as envisaged by Sheikh Hasina, the detained apex leader of AL. This indeed reflects the confused state of his mind in assessing the constitutionality of the present government.

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Md. Anwarul Kabir is an educationist, working at the Computer Science Department, AIUB and a freelance writer.