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The constitutionality of the interim
government: is it legit or not? Published on May 01, 2007 On May 1, 2007 one non-headline news attracted my attention. Dr. Kamal Hussein, the chief of Gono Forum, while visiting East London addressed a crowd at Malbury [sp.?] School where he said, the tenure of the incumbent caretaker government is constitutionally valid until a new government takes over. He further said, �You all know why the elections could not be held within 90-day timeframe... So, this caretaker government cannot be stated illegal.� On the same day, Sheikh Hasina, the president of Awami League, was addressing her party supporters in another neighborhood in East London where she said that the government of Bangladesh should hold the parliamentary election as early as possible because the present-day interim government is weakly supported by the constitution. These seemingly two contradictory statements bring the issue - who is right? Dr. Kamal or Sheikh Hasina? My answer to this is neither of them is right. There is no constitutional basis for an interim government, let alone backed by military, after the first caretaker government that ruled for almost 80 days
I have read the paragraph that states the
scope, duration, and function of the caretaker government as mentioned
in the constitution of
27b[CHAPTER IIA]
NON-PARTY CARE TAKER GOVERNMENT
58B. Non-Party Care-taker Government
(1) There shall be a Non-Party
Care-taker Government during the period from the date on which the Chief
Adviser of
such government enters upon office after
Parliament is dissolved or stands dissolved by reason of expiration of
its term
till the date on which a new Prime
Minister enters upon his office after the constitution of Parliament.
(2) The Non-Party Care-taker Government
shall be collectively responsible to the President.
(3) The executive power of the Republic
shall, during the period mentioned in clause (1), be exercised, subject
to the
provisions of article 58D(1), in
accordance with this Constitution, by or on the authority of the Chief
Adviser and shall
be exercised by him in accordance with
the advice of the Non-Party Care-taker Government.
(4) The provisions of article 55(4), (5)
and (6) shall (with the necessary adaptations) apply to similar matters
during the
period mentioned in clause (1).
58C. Composition of the Non-Party
Care-taker Government, appointment of Advisers, etc.
(1) Non-Party Care-taker Government
shall consist of the Chief Adviser at its head and not more than ten
other
Advisors, all of whom shall be appointed
by the President.
(2) The Chief Adviser and other Advisers
shall be appointed within fifteen days after Parliament is dissolved or
stands
dissolved, and during the period between
the date on which Parliament is dissolved or stands dissolved and the
date on
which the Chief Adviser is appointed, the
Prime Minister and his cabinet who were in office immediately before
Parliament was dissolved or stood
dissolved shall continue to hold office as such.
(3) The President shall appoint as Chief
Adviser the person who among the retired Chief Justices of Bangladesh
retired
last and who is qualified to be appointed
as an Adviser under this article:
Provided that if such retired Chief
Justice is not available or is not willing to hold the office of Chief
Adviser, the
President shall appoint as Chief Adviser
the person who among the retired Chief Justices of Bangladesh retired
next
before the last retired Chief Justice.
(4) If no retired Chief Justice is
available or willing to hold the office of Chief Advise, the President
shall appoint as Chief
Adviser the person who among the retired
Judges of the Appellate Division retired last and who is qualified to be
appointed as an Adviser under this
article:
Provided that if such retired Judge is
not available or is not willing 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 next before
the last
such retired Judge.
(5) If no retired judge of the Appellate
Division is available or willing to hold the office of Chief Adviser,
the President
shall, after consultation, as far as
practicable, with the major political parties, appoint the Chief Adviser
from among
citizens of
(6) Notwithstanding anything contained in
this Chapter, if the provisions of clauses (3), (4) and (5) cannot be
given
effect to, the President shall assume the
functions of the Chief Adviser of the Non-Party Care-taker Government in
addition to his own functions under this
Constitution.
(7) The President shall appoint Advisers
from among the persons who are-
qualified for election as members of
parliament;
not members of any political party or of
any organisation associated with or affiliated to any political party;
not, and have agreed in writing not to
be, candidates for the ensuing election of members of parliament;
not over seventy-two years of age.
(8) The Advisers shall be appointed by
the President on the advice of the Chief Adviser.
(9) The Chief Adviser or an Adviser may
resign his office by writing under his hand addressed to the President.
(10) The Chief Adviser or an Adviser
shall cease to be Chief Adviser or Adviser if he is disqualified to be
appointed as
such under this article.
(11) The Chief Adviser shall have the
status, and shall be entitled to the remuneration and privileges, of a
Prime Minister
and an Adviser shall have the status, and
shall be entitled to the remuneration and privileges, of a Minister.
(12) The Non-Party Care-taker Government
shall stand dissolved on the date on which the prime Minister enters
upon
his office after the constitution of new
parliament.
58D. Functions of Non-Party Care-taker
Government
(1) The Non-Party Care-taker 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 its shall not make any policy decision.
(2) The Non-Party Care-taker Government
shall give to the Election Commission all possible aid and assistance
that may
be required for bolding the general
election of members of parliament peacefully, fairly and impartially.
58E. Certain provisions of the
Constitution to remain ineffective
Notwithstanding anything contained in
articles 48(3), 141A(1) and 141C(1) of the Constitution, during the
period the Non-Party Care-taker government is functioning, provisions in
the constitution requiring the President to act on the advice of the
Prime Minister or upon his prior counter-signature shall be
ineffective."]
My interpretations on the legality of a
Non-Party caretaker government as per Bangladesh Constitution are as
follows:
1. The framer of constitution made a
mistake by calling it "Care Taker Government." In English there
is such a word call �Caretaker,� which really means a custodian.
The word �Care Taker� should have been avoided but the framer(s)
of constitution did not choose the right word.
2. There is only mention of ONE Care
Taker Government and not two or many. It is understood that there
should not be two or many consecutive Care Taker Government. From this
angle alone, the interim government of Fakhruddin Ahmed is extra
constitutional. Where did Dr. Kamal Hussein find the legality? I have
the slightest of clues!
3. The choice of Chief Adviser is spelled
out very clearly. Dr. Iajuddin Ahmed, the president, clearly violated
the constitution when he appointed himself as the Chief Adviser. As per
constitution a partisan person cannot be the CA or adviser. Iajuddin
Ahmed again violated the constitution when he chose to be the CA and
also when he appointed certain advisers second time after the
resignation of 4 advisers on December 11, 2006 he appointed some
partisan persons and one of them even tried to secure a candidacy to run
for the parliament under BNP ticket.
4. Since there is no provision for more
than one Non-Party Caretaker Government as per the constitution, the
military-backed interim government of Fakhruddin is unconstitutional,
pure and simple.
5. There is no provision of a Non-Part
Caretaker Government under emergency rule. Therefore, the present
administration headed by Fakhruddin Ahmed is illegal because the
constitution does not support it. You will be hard pressed to find the
terms �Emergency Rule� and �Caretaker Government� in one paragraph in
the entire constitution. The framer of the constitution never had
imagined before that a situation might arise when emergency rule will be
declared along with the annulment of a caretaker government, never mind
the appointment of a second caretaker government. The constitution is
very silent about the second caretaker or interim government. Under
this dire backdrop, why does Dr. Kamal Hussein, who claims to be a
constitution expert and a lawyer, give support to this unconstitutional
caretaker government? I have no clues. At the same time I hate to
think about a conspiracy being hatched between him and the military that
is backing this unconstitutional government.
Is it too much for a constitutional legal
expert to come forward and call a spade a spade? For the sake of
transparency I have cut and paste the entire chapter [Chapter IIA] under
section 27b of
Another gross violation of the
constitution that Fakhruddin Administration has done falls into the
category of policy making. As per
When this debate concerning the
constitutionality of the Fakhruddin Administration is going on, Dr.
Kamal Hussein's tongue is wagging to validate this seemingly illegal and
unconstitutional government. Is there any way we could ask the learned
opinion of a neutral international jurisprudent to give his verdict on
this hot issue. To me, it looks like a duck, it quacks like a duck, it
swims like a duck, and therefore, it�s a duck.
----------------------------
Dr. A.H. Jaffor Ullah, a researcher and
columnist, writes from
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