Tables of contents: SL Abstract 1.0 2.0 2.1 2.2 2.3 3.0 4.0 4.1 5.

0 Introduction Definition of Caretaker Government Presumed Caretaker Government Caretaker Government in Special Sense Caretaker Government in True Sense Brief history of the non party caretaker government of Bangladesh The Issue of Caretaker Government in Constitution Functions of Non-Party Care-taker Government Whether Care- taker government abolished to make constitutional crisis for fair election and democracy of Bangladesh. Whether care taker government is precondition for fair election and democracy of Bangladesh or not 6.1 6.2 7.0 Why is Non -party care-taker necessary for fair election? Why is Non -party care-taker not necessary for fair election? Conclusion References 9 13 14 15 Pages no 2 3 3 4 4 4 5 7 8 8

6.0

1|Page

Abstract:
Bangladesh became independent from Pakistan in 1971, following a bloody war. One of the reasons for the creation of Bangladesh was the aspiration of the people to establish a democratic society. Conversely, it may be said that Bangladesh became an independent country as a protest against military rule. Ironically, between 1975 and 1991, the country was either under direct or indirect military rule. Since independence, two presidents have been killed in military coups, martial law has been imposed three times and thrice a state of emergency has been declared.

Like many developing countries, in Bangladesh the holding of free, fair and credible elections remains a big legal and political challenge despite the existence of all formal institutions including an apparent independent Election Commission. Those in power have always manipulated the rules and institutions concerned with the election process. Consequently, the innovative idea of holding the election under a non-party caretaker government was conceived as a solution. It was perceived that the non-party neutral caretaker government would have no motivation to manipulate the electoral process as the members of this government are barred from contesting the election.

2|Page

1.0 Introduction:
In 2011 Bangladesh has observed its 40 years of independence but till now the people are not able to experience the real democracy. From independence, it had been said that this country will run by the law of democracy, never the actual democracy is practiced here. But it is clearly defined in Constitution that the country will run in a democratic way and to ensure constitutions sovereignty the constitution is created as rigid one which is hard to change. Recently 15th constitutional amendment was taken place which is about to abolish the Caretaker government. The amendment took two major political parties in two different poles. The government party is against the caretaker system where the opposition said that they will not take part in the election if the care taker system is not retained. On the issue of caretaker government the politics of Bangladesh is in a hanging situation.

2.0 Definition of Caretaker Government:

`The Caretaker Government is a special form of government system in which the country is ruled by a selected government for an interim period during transition from one government to another, after the completion tenure of the former. As the outgoing government hands over their power, the caretaker government comes into place.` http://en.wikipedia.org/wiki/Caretaker_government `Caretaker governments may also be put in place when a government in a parliamentary system is defeated in motion of no confidence or in the case when the house to which the government is responsible is dissolved, to rule the country for an interim period until an election is held and a new government is formed. This type of caretaker government is adopted in Bangladesh where an advisor council led by the former chief judge rules the country for three months before an elected government takes over. In systems where coalition governments are frequent a caretaker government may be installed temporarily while negotiations to form a new coalition take place. This usually occurs either immediately after an election in which there is no clear victor or if one coalition government collapses and a new one must be negotiated.` Banglapedia: Caretaker Government.

3|Page

(Authors own translation) Caretaker governments are expected to handle daily issues and prepare budgets for discussion, but are not expected to produce a government platform or introduce controversial bills. Caretaker governments are of three kinds-

2.1 Presumed Caretaker Government:

There are no basic rules or mandatory for this type of government. In special situation this government comes in to the caretaker role. This type care taker government mainly comes in power with the expiry of legislative part of the present government or the failure of present government in the confidence votes in the parliament. This government is validating for the next election and its main task is to perform the duty of election. However, this type of government is acknowledged in everywhere in the world. In Britain, France, and in many other countries the election is taken place in regime of the prior prime minister. The prime minister need not to be resigned from his post. For that reason this type is of government cannot be said as real caretaker government.

2.2 Caretaker Government in Special Sense:

To handle any disaster or any crucial situation like war, famine, the special kinds of interim government that comes in power is called caretaker government in special case. In 1945 prior the Second World War with the leadership Winston Churchill and other important persons of America shaped a interim government for the next upcoming election. Sir Ivor Jennings later termed this government as Caretaker Government in Special Sense.

2.3 Caretaker Government in True Sense:

Caretaker Government in True Sense means special kinds of government which is apolitical, impartial and neutral in nature. The key thing is every member of this government is personally prevented from voting, supporting and taking part in the election. In Bangladesh this type government was introduced by the 13th amendment of constitution.

4|Page

3.0 Brief history of the non party caretaker government of Bangladesh:

Originally, the Bangladesh Jamaat-e-Islami (BJI) first advanced the proposal for the system of a caretaker government in 1983. But it did not appeal to the main political parties, particularly the Bangladesh Awami League (BAL) and the Bangladesh Nationalist Party (BNP) and the left front which were actively engaged in anti-Ershad street agitation movements. The BJI, through its parliamentary leader, submitted a Private Members Bill in December 1991, seeking a permanent arrangement for holding all future parliamentary elections under the caretaker government. The main parties did not take any notice of the BJIs Bill for the caretaker government for more than two years of its submission to the Parliament Secretariat in December 1991. The BAL and the Jatiya Party (JP) changed their mind towards the end of 1993 following the Magura by-election which was alleged to have rigged. They then submitted separate Bills for the non-party caretaker government: the BAL in October 1993 and the JP in November 1993. The three Bills on caretaker government, submitted by the BAL, the JP and the BJI respectively, had more similarities than differences. They however could not pass their Bills as they did not have enough majority in the Parliament and the government led by the BNP did not agree with their Bills. The BAL, the JP and the BJI intensified their agitational street programmes to compel the government to introduce the caretaker government by amending the Constitution: they held 173 days national strikes (shut down - hartals). Finally, the system of a non-party caretaker government was constitutionally introduced through the Thirteenth Amendment to the Constitution after the three main political parties, the BAL, the JP and the BJI, boycotted the sixth parliamentary election held in February 1996, to press the demand of a non-party caretaker government to oversee political transition in the country. The Thirteenth Amendment gave power to an elected government to transfer power to an unelected non-party caretaker government to oversee a new parliamentary election on completion of its term. The system which lasted for nearly two decades, however, held four elections under it: in 1991, 1996, 2001 and 2008. The system was first put in place informally in 1991 (later ratified by the Eleventh Amendment), at a time of critical political
5|Page

transformation, before it was included in the Constitution in the 1996. The aim was to oversee the election process at a time when military dictator General Hussain Muhammad Ershad was ousted and electoral democracy was restored in Bangladesh. The grand alliance led by the BAL, after coming to power in 2009, scrapped the non-party caretaker system from the Constitution saying that they were following the Supreme Court judgment. Interestingly, when the government passed the Fifteenth Amendment Bill repealing the caretaker government provision, the full judgement was not published. Surprisingly, the possibility of having two further elections under the caretaker government as mentioned in the short judgement, which was given before the Fifteenth Amendment was passed, was not in the full judgement, which was given after the Fifteenth Amendment was passed! That means there has been a degree of inconsistency between the short order and the final judgement of the Appellate Division of the Supreme Court for mysterious reason. Thirteenth Amendment judgment of the High Court and Supreme Court In the High Court Division, the non-party caretaker system was challenged twice and rejected twice: firstly in 1996 (Writ Petition No. 1729 of 1996), and then in 2004 (57 DLR 171). A special larger High Court Bench of Justice Md Joynul Abedin, Justice Md Awlad Ali and Justice Mirza Hussain Haider, after hearing the writ petition, delivered the judgement on August 4, 2004, declaring legal the Thirteenth Amendment. The High Court held that the Thirteenth Amendment was not inconsistent with the basic structure of the Constitution; rather it helped institutionalise and strengthen democracy. An appeal preferred against the 2004 judgment of the High Court to the Appellate Division of the Supreme Court which resulted in the 4 to 3 majority judgment against the non-party caretaker government. Majority Judges (4 out of 7) declared the Thirteenth Amendment as ultra virus the Constitution. However, citing the ages-old Latin maxims -- "That which otherwise is not lawful, necessity makes lawful", "Safety of the people is the supreme law" and "Safety of the state is the supreme law", -- the former Chief Justice along with three other Judges held the decision whether the next two general elections would be held under the caretaker system shall be taken only by Parliament. Although the Thirteenth Amendment to the Constitution is illegal, Parliament may take measures to constitute the caretaker
6|Page

government in new form to hold the tenth and eleventh national polls. Three Judges, though minority, gave their judgement in favour of the non-party caretaker government.

4.0 The Issue of Caretaker Government in Constitution:

Before 15th amendment of the constitution of Bangladesh was that Under article 58C(3) stated that the amendment provided that after the resignation of the government, before a scheduled general election, the president shall invite the immediate past chief justice of the country to become the chief adviser (CA). Under article 58C (4) stated that if this was not possible, the Constitution suggests the Chief Justices of Bangladesh retired next before the last retired Chief Justice, or the retired Judges of the Appellate Division who retired last or the retired Judges of the Appellate Division retired next before the last such retired Judge could be appointed as head of the Caretaker Government. Under article 58C(5) stated that If these options are not available or not feasible, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh. Article 58C (1) says that, the Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisers. Under article 58C (8) stated that the advisers are to be appointed by the president on the advice of the chief adviser. Under article 58C (7) stated that the advisers should not be member of any political party and should be qualified for election. The CA would exercise the executive power of the republic during the tenure of the caretaker government. The tenure of the CA commences from the moment of taking the oath of office and ends when a new prime minister is sworn in after the general elections.

7|Page

4.1 Functions of Non-Party Care-taker Government:

Under article 58D (1) stated that The Non-Party Caretaker Government shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic and shall not make any policy decision. Under article 58D(2) stated that The first and foremost responsibility of this government is to hold a free, fair and credible election with the help of Election commission.16 Under article 123(3) stated that The amendment, in clear terms, made it mandatory to hold the general election within 90 days.

5.0 Whether Care- taker government abolished to make constitutional crisis for fair election and democracy of Bangladesh.
On 10 May 2011 Appellate Division of the Supreme Court declared the system of Non party Care-taker government ultra vires the constitution Notwithstanding the declaration, the court added in the shorts order for continuance of the condemned system for the next two parliamentary elections. In the case of (Abdul Mannan vs Bangladesh 64 DLR (AD) 169) full judgement the supreme court held that the functions of care-taker government in period (20062008) and others in the articles 58B and 58C violate articles 56(4) and 57 (3) of the constitution. Similarly clause (2) of article 58B is consistent with clause (3) of article 48 and article 55. Where the people of Bangladesh faced many problems for election 1996, then established care taker government but now those problems had kept in Bangladesh. In the present constitution, article 123(3) of the constitution says that a general election of the members of parliament shall be helda) In the case of a dissolution by reason of the expiration of its term, within the of period of ninety days preceding such dissolution. b) In the case of a dissolution otherwise then by reason of the expiration, within ninety days after such dissolution.

But there has no how will be system of government in time election whether lagre number of cabinet or small, whether member of parliament will be kept or not,

8|Page

whether executive power prime minister or ministers will be kept or not .it is unclear of the constitution. There have problems such as judiciary, election commission and other constitutional institutions are independent .There are not truly independent. They cannot act own their willing and freely. Bangladesh is not developed country but she is a developing country. For the 15th amendment in this country many properties, cars and others things are destroyed. Again and again called up hartal, many people are died. Then we face economic, social and others problems which affect the people`s life. If this amendment is no to be ,this crisis will not face people of Bangladesh.

6.0 Whether care taker government is precondition for fair election and democracy of Bangladesh or not.

6.1 Why is Non -party care-taker necessary for fair election? There are many reasons as to why Bangladesh needs a non-party caretaker government to hold free, fair and credible elections. Some of the important reasons are: First: Bangladesh had a very bad and shocking experience of holding general

elections under party governments. The first election held after independence under the then BAL government, the current governments predecessor, was not free and fair. There were wide spread allegations of irregularities, centre captures, keeping polling agents out of polling station by force and kidnapping ballot boxes. In spite of these serious allegations, no credible investigation was carried out, let alone punishing the culprits. The government of the same party is in power. There has been no change in behaviour and attitude of the party. Similar allegations were made for other elections held under the party government. According to Justice Abdul Wahab Miah, in Abdul Mannan Khan V Government of Bangladesh [2012] There were widespread allegations of vote rigging and manipulation of the elections by the party in power in the Parliament election held in 1973, 1979, 1986, 1988 and February 1996." Justice Muhammad Imman Ali said in the same case In the context of our political rivalry, we cannot seriously expect the party in power to abstain from
9|Page

exerting unfair influence during elections. Hence, no fair election can be held while any particular party is still in power. Under these circumstances, it would be impossible for the current party government to hold a free, fair and credible election. Second: During the 41 years history of independent Bangladesh, total five elections held in 1973, 1979, 1986, 1988 and February 1996 were held under the party governments and these were alleged to have been seriously rigged. The history and evidence suggest that the ruling parties in the past habitually used force and intimidation to win elections. On the contrary, four elections - held in 1991, 1996 (June one), 2001 and 2008 - were considered to be free, fair and credible by the national and international observers. All these four elections were held under the nonparty caretaker government. Under those free and fair elections, the BNP, the BAL, the four party alliance led by the BNP and the grand alliance led by the BAL respectively came to power. In fact, under the non-party caretaker government, the voters, who are constitutionally the source of all power (Article 7), get real chance/opportunity to give their mandate. Why is the government so scared to facilitate such a system whereby the people can freely exercise their inherent and constitutional right? Third: The BAL desperately wanted the non-party caretaker government in the 1990s. As mentioned above, initially the formula of a non-party caretaker government was given by the BJI in 1983. The BAL joined with the BJI and one fraction of the JP and started movement for the non-party caretaker government in the early 1990s. They paralysed the country during most of the tenure of 1991-1996 BNP government. They called 173 hartals. The BNP initially was not in favour of the nonparty caretaker government. But due to tremendous pressure from the BAL and its the then alliances, the BNP was compelled to hold an election in February 1996 to incorporate the provision of a non-party caretaker government in the Constitution through the Thirteenth Amendment. According to Neha Metha, a research Fellow of Vivekananda International Foundation The current political stance of the Awami League and the BNP, however, is diametrically opposite to when the caretaker system was introduced constitutionally, with the Awami League pressing for the
10 | P a g e

system while the BNP being reluctant to concede to such a demand. It was primarily an outcome of lack of trust amongst the political parties as well as the belief that the incumbent government could not hold an election without meddling with the political process which would lead to electoral fraud. Has the mistrust of the main political parties between themselves gone? Certainly not. Rather it has become more bitter and poisonous. In such circumstances, holding an election under the party

government would not be free, fair and credible at all. Fourth: Democracy has been defined by Abraham Lincoln as a government, of the people, for the people and by the people. That means, in a democracy peoples wishes, desires and expectation matter most. The government cannot be of the people unless the people can freely participate in the mandate giving

day. Similarly, the government cannot be by the people unless the people can freely exercise their fundamental constitutional rights. If the government cannot be of the people and by the people, certainly it would not be for the people. Bangladesh is a third world developing country where winner takes all and there is not a single instance where the government party, being in power, has ever lost in general election. The corruption is widespread and politicisation of the administration seems to be normal. In such circumstances, how can an election under a party government be free, fair and credible? To hold democracy firmly and sustain it in a country of relatively child democracy, there is no practical alternative to holding an election under a non-party caretaker government. The relationship between democracy and free and fair elections was best summed up in an Indian case [(2002) 8 SCC 237]: "Free, fair ... elections are part of the basic structure of the Constitution...Democracy and free and fair elections are inseparable twins. There is almost an inseverable umbilical cord joining them. The little man's ballot and not the bullet is the heart beat of democracy. ``

11 | P a g e

Fifth: The learned Judges of the Supreme Court, no doubt, have special skills, knowledge and wisdom. All three Judges of the larger Bench of the

High Court Division (one of them was later elevated to the Appellate Division of the Supreme Court) were in favour of the non-party caretaker government. Three Judges of the Appellate Division of the Supreme Court were also in favour of the nonparty caretaker government. Although minority Judges(3 out of 7) were in favour of the non-party caretaker government, if we consider the judgments of the entire Supreme Court Judges (both High Court Division and Appellate Division) we can see that out of total ten Judges of the Supreme Court, six were in favour of the non-party caretaker government. Not only this, all but one of the amicus curie (friends of the court), who were appointed by the Appellate Division of the Supreme Court to assist them, have given their opinion in favour of the non-party caretaker

government. Therefore, the concept of the non-party caretaker government has apparent merit in Bangladeshi context. It has strong legal force. Although the three Judges of the Appellate Division of the Supreme Court, who gave their judgement in favour of the non-party caretaker government, were minority, the history tells us that sometimes minority judgments have been proved to be right. For example, Lord Atkins in his minority judgment (1942 AC 206) at the height of the World War II declared unlawful the detention of a German citizen by applying the objective test in case of preventive detention. Forty years later, he was proved right. In Tamijuddin Khan's case, had the majority accepted Justice Cornelius's minority view, Pakistan's history would have been different. Similarly, the future history would probably prove that the minority judgments of the three Judges of the Appellate Division of the Supreme Court in favour of the non-party care taker government had been right.

12 | P a g e

Sixth: Few national newspapers, who were perceived to be government sympathisers, recently carried out survey for and against the system of a non-party caretaker government. Nearly 70% people participated in the survey voted for the non-party caretaker government. This is the result of the survey conducted by the government leaning newspapers. The ground reality is likely to be higher. If the peoples opinion really matters to the government, the government can perhaps arrange a referendum. At least 80% people are likely to give their verdict for the non-party caretaker government.

6.2 Why is Non -party care-taker not necessary for fair election?
It is submitted that 1. 15th amendment of the constitution of Bangladesh made to strong election commission where member of election commissions are chief election commissioner and not more than four members (article 118) 2. Non-party care taker government cannot be long-time process for democrat countries. 3. Non-party care taker government is an unelected government it creates many problems for political parties e.g in period (2006-2008) of the care taker government. 4. 11 members of Non-party care taker government are not possible to run so populated countries. 5. For fair election, constitutional instructions are truly free from executive. 6. Every elected government creates fair circumstances for election so that other parties participate election and in the time of election as if they are not apply executive power to ensure.

7. Like other democrat countries, in into constitution to create a permanent

system so that we are not face the problem of election after 5 years again.

8. The army have to influence on the non party care taker government which is
bad in the democracy.

13 | P a g e

7.0 Conclusion:
it is submitted that the non-party care-taker system cannot be unconstitutional on the ground of its inconsistency with the democratic principles for (a) it was introduced by national consensus, (b) it came to assist the very democracy, and (c) ensured free and fair elections, the hardcore component of the democracy. Democracy in Bangladesh is like a child, who cannot even stand, let alone walking or running. Child needs support and boosting. Similarly, democracy in Bangladesh needs support and boosting - by way of elections under the non-party government-in order to reflect peoples wishes, maintain continuity and ensures moot transition of power. Until there is concrete evidence that politicians are able to hold free and fair election acceptable to all, the non-party caretaker system is a must for Bangladesh.

So to me at present the country has necessity of caretaker government for a fair election and the possible solution on the issue of caretaker government will bebecause of the past experience of caretaker government and as it is against the actual theme of constitution, the caretaker government should be banned but concerning the country and its current situation, for fair election this government should validate for next two elections, after that the system will abolish.

14 | P a g e

References:
1. Umar, Badaruddin (2010), The History of Caretaker Government in the Military Era 2. Nazrul, Asif 2008, Emergence of Caretaker Government 3. The Constitution of Bangladesh 4. Hoque, Masudul, A.K.M. 2009, Emergency Power and Caretaker Government 5. The Daily Prothom Alo Archive 6. The Daily Star Arcive 7. The Daily ittefaq Archive 8. http://en.wikipedia.org/wiki/Caretaker_government 9. Banglapedia : Caretaker Government 10. Islam, Mahmudul, 2012, (3th ed)

15 | P a g e