One of the more interesting contitutional innovations of recent times is the Bangladeshi Non-party caretaker government. This is covered in chapter IIA of the Bangladesh Constitution.

Bangladesh is a parliamentary system with a largely ceremonial President who is appointed by the Parliament. The Executive is embedded is the Legislative, similar to the Australian Westminster style systems.

In Australia the caretaker convention is that the Government does not do anything odd, unusual, or out of the ordinary during an election period in relation to governance. In most of these convention instances they remain valid only as long as someone doesn't break them.

For instance the convention prior to 1975 in Australian Federal parliament was that the States would appoint a Senator of the same party as an outgoing one. This did not happen twice in the run up to the Dismissal and soon after a constitutional amendment came down forcing this behaviour.

Presumably, a Bangladeshi government did not honour the caretaker convention, and the Bangladeshis, unwilling to trust any party machine with the caretaker convention, took over the running of government themselves during this period.

The Non-party Caretaker Government is headed by a Chief Advisor who adopts the role of Prime Minister and advises the President as head of the Executive. The Chief Advisor and up to ten other non-party advisors comprise a citizens executive cabinet and are appointed by the President.

The Chief Advisor is the last retired Chief Justice. The other advisors cannot be members of parliament, cannot be running for election, cannot be members of a party and must be under seventy-two years of age. This mixes community specialists with a judicial specialist.

The constitution grants the Chief Advisor and Advisors the remuneration and status of the Prime Minister and Ministers respectively during this period.

Like the caretaker conventions in Australia which implies no policy decisions will be made by an interim government, the Bangladesh constitution entrenches this requirement and the Non-party Caretaker Government is excluded from making policy.

From the Constitution;

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 Bangladesh who are qualified to be appointed as Advisers under this article.
(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-
1. qualified for election as members of parliament;
2. not members of any political party or of any organisation associated with or affiliated to any political party;
3. not, and have agreed in writing not to be, candidates for the ensuing election of members of parliament;
4. 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.

From ABC News ; "Bangladeshi President Iajuddin Ahmed has been sworn in as the head of the interim administration that will oversee national elections in January, in a ceremony broadcast live on television" . As we discussed last week , the Bangladeshi Constitution covers the appointment process for the Chief Adviser position in the care-taker government.

The constitutional requirement for the position of Chief Advisor is in Section 58C(3) of the Bangladeshi Constitution ;

(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 Bangladesh who are qualified to be appointed as Advisers under this article.

(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.

For the President to take the Chief Advisor position it would require no judge, or no citizen of Bangladesh with suitable qualifications wanting to do it.

Drishtipat, an expat Bangladeshi site has comments on the issue as does Nazim Farhan Choudhury ;

So the President can be the head of the CTG. BUT and this is a big but, he can only do so if "provisions of clauses (3), (4) and (5) cannot be given effect to".

Clause (3) talks of all the Chief Justices. Clause (4) talks of all the Judges of the Appelate Court. Clause (5) talks of a consensus candidate.

So without asking the next in line (ie Mahmudul Amin Choudhury) and those after him, the President cannot jump to Clauses (5) or (6).

The horse has bolted, but I bet the Constitution writers are now wishing they could repeal 58C(6) and make the Chief Adviser position go right through Bangladesh's provincial and local courts for suitable candidates first.

Nazim has a comment on Drishtipat with the points in Iajuddin's acceptance(?) or self-appointment speech;

1. I am addressing you at a grave time.
2. You know a caretaker government is to be announced.
3. As per constitution, KM Hassan refused. Monirul Reza Choudhury is dead.
4. Appealate division's MA Aziz is unqualified as he is CEC.
5. Hamidul Haque refused if there is not consensus between all party.
6. According to Article 58 (5) I had discussions with all parties to find a compromise candidate. While I earnestly hoped that all party will be able to agree to a person. Unfortunately this has not happened.
7. Hence I have to take over as the Chief Caretaker.
8. Law and order has broken down over the last few days and therefore there was no alternative than for me to take over as CTG head.
9. Whatever needs to be done to protect our rigths must be done.
10 I hope everyone including all parties will support me.
11. I am seeking advice of all parties to help me nominate 10 advisers who will help in putting together the Army.
12. I hope there is be peace and within the stipulated time we can hold electons.
13. Allah Hafez and Bangladesh Zindabad.

It should also be noted that the Bangladeshi Constitution excludes the Caretaker Government [CTG] from making policy. From 58D(1);

(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.

The Bangladeshi President is a ceremonial role, the fear is that with the President becoming the Chief Adviser to the caretaker government, the President's role will go from ceremonial to controlling executive and legislative functions. Section 58D(1) is supposed to stop this, but given the President's willingness to place themselves in this position of greater power it does not bode well for Bangladesh.

This also acts as a warning for Constitution writers, never leave a clause in which can give one person control of more than one branch of government - ceremonial or not. I have my fingers crossed for the Bangladeshis; liberal democracy has managed to survive past violence and destructive politics there, hopefully this is nothing more than a bump.

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In an article titled The constitutional process, Dr Ahmed Ziauddin writes that the Bangladeshi President broke the constitutionally enforced sequence to appoint himself as Chief Advisor to the Caretaker Government. In essence he acted unconstitutionally and should resign.

From the article;

Here, the constitution leaves no choice for the president but to act exactly in this prescribed order. The use of the word "shall" limits the president's power and obliges him to act without fail.

Moreover, the use of plural to denote "retired Chief Justices" and "retired Judges" means that the drafters of the constitution assumed that there could be more than one retired chief justices and judges. This is reinforced by the use of the expression: "If no retired Chief Justice is available" and "If no retired Judge of the Appellate Division is available" in Article 58C (4) and Article 58C (5) respectively, which suggests that option 1 and 2 are only completed when there is not a single chief justice available or willing to act as chief advisor, so also for the retired judges of the Appellate Division.

This also is common sense interpretation. The drafters of the constitution could not have chosen a retired judge of the Appellate Division while still a retired chief justice was around and willing. Equally, where a retired Appellate Division judge was available, the constitution could not have opted for to search a chief advisor from amongst citizens of Bangladesh.

The idea was rather simple; first exhaust searching retired chief justices, then the retired Appellate Division judges, then from among the citizens of Bangladesh, and only then, if all efforts failed, the president would assume the responsibility.

and;

If sequences of these constitutional mandates are checked with time lines of facts and happenings on the ground, it will be found how the president jumped the queue.

On Friday evening, October 27, the president's office announced postponement of Saturday's (October 28) oath taking of Justice KM Hasan as chief advisor, as he was "indisposed," while immediately, reports appeared in the media quoting persons meeting Judge Hasan around the time, him being in good health, which was confirmed in Judge Hasan's own statement a day later, explaining his inability to accept the position of the chief advisor, where there was no reference of his reported indisposition. That was the first knock to the president's credibility.

In any event, when Judge Hasan declined, the president had no choice but to appoint the remaining retired chief justice Mr Mahmudul Amin Chowdhury. According to news reports, BNP then offered to the president different interpretation to Article 58 C (3) and (4) the constitution against appointing Judge Chowdhury suggesting, that search for retired chief justice stops at two retied chief justices.

Although this is a non-starter argument, because logically a retired Appellate Division judge could not get preference over a retired chief justice, but nonetheless, this was a serious question of interpretation of the constitution which never arose before.

In such a situation, the president had two options; he could have invited eminent legal minds of the country to share their views with him, or, most constitutionally, he should have followed Article 107 of the constitution.

107 is similar to the Governor-General as rights referee which has been discussed here and enables the Governor-General to turn legislation over to the High Court to be checked for constitutionality before it is passed into legislation. The Bangladeshi Constitution has this style of check and balance in their ceremonial President - Parliamentary system;

Article 107: Advisory jurisdiction of Supreme Court

If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.

So what we have here is a renegade President, acting unconstitutionally, and trying to do an end-run around the constitution and Bangladeshi liberal democracy. That is criminal.

Ziaddun warns;

The nation was left guessing, and the president assumed the position of the chief advisor, revealed to the nation only when he was invited to take oath as the chief advisor at the swearing in ceremony. This was an extremely non-transparent way to assume the position of a supposedly non-partisan, neutral caretaker administrator, supposed to ensure holding of a transparent general election.

On the contrary, for the last few days, the former prime minister and other alliance leaders have been telling opposition political parties and the nation that the president's decision will be final and all must abide by that, which suggests that this was a pre-scripted event, where BNP-Jamaat were aware of the president's decision to assume the chief advisor position, as testified by the fact that no name of any eminent citizen was even raised or discussed under option 5. In other words, all was fixed well before the process began.

This is bound to raise serious doubts about the president's honesty of purpose, and one doesn't have to be rocket scientist to guess how transparent and fair the upcoming election would be.

Not good. Bangladesh is facing a usurper of the constitution, backed by the legislative and formal executive in parliament through what appears to be a party-machine, and seemingly no means for the people to sue for the constitution to be followed by the usurper as the highest law of the land.

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Harun Ur Rashid ask's: Is Bangladesh's non-partisan caretaker government working? His answer is no and he offers six alterations of the constitution to fix the hole the President has run through the constitution before it becomes convention. Rashid comments that constitutions are "not set in stone and already it has undergone fourteen amendments. The last amendment was adopted in May 2004. Another amendment of the Constitution will not make the sky fall.".

Rashid doesn't blame the President despite the President being worthy of scorn and censure for violating the spirit of the care-taker government, but also willingly obfuscating the steps constitutionally required. In his speech the President claimed he was forced to due to emergency. This is no different to Thailand and Fiji where the usurpers claimed they had to suspend the constitution in order to save it.

Rashid's six alterations require:

• Defence needs to come under the authority of the care-taker government (not the President)
• President is ineligible to run the care-taker government (chief adviser)
• Retired justices ineligible to be chief adviser (separation of powers)
• Constitution requires criteria to appoint a citizen to chief adviser
• Article 58C(4), "no retired chief justice is available" requires clarity.
• Explicit enumeration of responsibilities of chief adviser in council and without council.

That non-party caretaker government in Bangladesh which was usurped by the President, citing emergency, has now arrested fourteen (13?) political leaders, including nine former ministers.

The caretaker conventions are that the government not conduct any policy and hand over the Cabinet once elections are held. The caretaker government is only for the temporal period that the government in power has its legitimacy in question while the country goes to the ballot boxes. Once certainty of democratic legitimacy is returned with the election result, the government elected takes over from the caretaker government.

Nothing says rule of law and civil order like a state of emergency:

The state of emergency bans political activity and gives security forces sweeping powers to detain anyone without warrants.

It appears that the politicians arrested were from the two major parties, so it may be the President making a play on removing the parliament as a house for the legislative and executive. If that is the case the Non-party caretaker clause has been used to give a ceremonial president absolute powers. It should be noted that the President did not follow the constitution in order to appoint himself Chief Advisor of the caretaker government. He used a claim of a state of emergency to do so.

The Washington Post is carrying a letter to the editor from Sheikh Mohammed Belal, a minister at the embassy in Washington DC. It contains several falsehoods.

We have covered the Bangladeshi non-party caretaker government in detail as it is a constitutional innovation that has fallen prey to the unconstitutional behaviour of the Bangladeshi President, Iajuddin Ahmed.

The letter starts:

The Jan. 25 news story "Bangladesh Military Accused of Stalling on Elections" contained broad judgments that are a trifle unfair.

What really happened leading up to Jan. 11 was that the political turmoil had reached the point that it had brought civic life to a standstill. It had devastated the socioeconomic fabric of Bangladesh. Chaos was reigning. Conditions were ripe for the country to become a breeding ground of extremism and terrorism. The world could not afford an ungovernable entity of the size of Bangladesh (145 million people), with all the negative implications.

The Jan. 11 emergency proclamation pulled the country back from the brink of disaster. The declaration was within the framework of Bangladesh's constitution. Subsequent governmental actions have been on a constitutional track. The proclamation has had overwhelming support from the armed forces, a business community battered by continuous strikes and from Bangladeshi civil society.

That is a standard state of emergency claim, only an Aristotlean 'best man' or Cincinnatus could overcome the chaos by adopting emergency powers and saving the constitution by burning it.

It should be noted that the Chief Advisor in the caretaker government is supposed to be a judge. Not the president. Ahmed skipped judges in order to make himself the Chief Advisor and then justified it by claiming it was a state of emergency, forcing him to act in this manner. I think it is fair to say he acted unconstitutionally. Since then he has appointed a former banker into the role but a state of emergency still exists across Bangladesh.

The letter continues:

It is understood that the caretaker government that assumed office after Jan. 11 has a responsibility different from others before it. Unless it can successfully undertake reforms, some of which are structural, it will not be able to create the level playing field that is a prerequisite for holding a free, fair and credible election with the participation of candidates from all major political parties.

The whole point of caretaker governments is that they do not enact policy, they have no legitimacy because an election has been called, and the government that is formed after the election - with popular backing - is the only succesor government that has the popular will and legitimacy to enact policy.

The Bangladeshi constitution is very explicit about this. Belal is arguing that this caretaker government is not a caretaker but an 'emergency government' and has full governmental powers. The constitution contains in section 58(1):

(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.

So the caretaker government is acting unconstitutionally by implementing policy, and arguably this includes operating under a legal state of emergency. Certainly, several political leaders from the two major parties were rounded up under that emergency and imprisoned.

This whole process has not been good and has smacked of Ahmed being willing to ignore the constitution, placing doubts on his political honesty as a ceremonial president, as well as the political motives of the caretaker government.

The purpose of a the non-party caretaker government was that it would take politics out of elections and stop interfering in the electoral process by political parties willing to influence the outcome by tampering or coercion. Instead it has been a method for the President to insert himself into politics, though, he had to ignore the constitution to do so.