Sunday Times 2
Let there be a caretaker government before polls
What is required today in view of a possible presidential or general election in the near future is a caretaker government to ensure a fair and peaceful poll.
Today, the people have lost faith in elections in Sri Lanka due to the disruption and criminalisation of the election process. It has been marred by threat, intimidation, corruption, mass-scale rigging, the use of illegal arms and black money – with political parties trying to gain power by any mean, fair or foul.
It is because of the inherent drawbacks in the electoral system that, much to their regret, the people are forced to live with such distortions to democracy. The people must be free to exercise their franchise and choose their representatives. It is a violation of fundamental rights to prevent them from such an exercise. Most democracies procalim in their constitutions that people are sovereign, implying that the so-called leaders or representatives are their servants. But in reality, the voters are pawns in the hands of thugs and political terrorists. This is why many honest and educated people keep off the portals of our politics.
In Bangladesh, the concept of a caretaker government was introduced in 1996 by an amendment to the Constitution. The relevant amendment says there shall be a non-party caretaker 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 terms till the date on which a new prime minister enters upon his office after the constitution of parliament.
The non-party caretaker government shall consist of the Chief Adviser – the last retired Chief Justice — at its head and not more than ten other advisers, all of whom shall be appointed by the President.
If such retired Chief Justice is not available or is not willing to hold office of chief Adviser, the President shall appoint the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice. In the event the President is unable to appoint a retired Chief Justice he may appoint a person from the Appellate Division.
Should the President fail to appoint a Chief Adviser in the manner stated above he shall after consultations 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 adviser.
Should the President fail in all these attempts, the President shall be entitled to assume the functions of the Chief Adviser of the non-party caretaker government in addition to his own functions under the Constitution.
The Chief Adviser and the other Advisers shall be appointed within fifteen days after the dissolution of parliament. However, the Prime Minister and his cabinet shall continue to hold office until such time the non-party caretaker government is formed.
The Adviser shall be appointed by the President on the advice of the Chief Adviser and the Chief Adviser may resign his office by writing to the President. The Chief Adviser shall have the status and remunerations and privileges of a Prime Minister and an Adviser the status and remuneration and privileges of a minister.
The functions of non-party caretaker government shall be to act as an interim government and carry on the routine functions of such government with the aid and assistance of persons in the service of the Republic — and except in the case of necessity for the discharge of such functions it shall not make any policy decision. It shall give to the election commissioner all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially.
A non-party caretaker government modeled on similar provisions should be introduced to SriLanka at the earliest opportunity, but before the next parliamentary elections.
Presidential, parliamentary, provincial council and local government elections are held in Sri Lanka periodically. Only a free and fair election process provides equal opportunities to elect political parties and candidates the voters think are suitable. Elections under the 1978 Constitution that introduced the Proportional Representation and the preferential voting systems saw violence not only between contesting parties but also within the parties. Therefore together with a caretaker government we need to bring about a new electoral system to ensure violence-free polls.
From Independence in 1948 till 1978, Sri Lanka held elections under the-first-past-the-post system. This method of election identified the representative who was held accountable. Multi-member electorates were set up to return representatives of minorities.
On the contrary, representatives elected under the PR system lose their touch with the electorate after the elections. They take little or no responsibility with regard to the needs of the people who voted them in.
This current electoral system has done much damage within a short period of time. We should return to the FPP or a better system. Further, this Constitution introduced the Executive Presidential system. What is disturbing is that an elected President is not accountable to any institution. Parliament or court has little or no control over him as he is endowed with absolute power. A former President explaining his power said at a function at the Sri Lanka Law College that he has no power only to make a man a woman and a woman a man.
The best electoral system is the mixture of both , FPP and the PR systems where candidates elected under the FPP and on the votes polled PR to be applied. This system may be not in the best interest of the minorities which could be eliminated by the multi-member electorates and carving of electorates by a Delimitation Commission.
Much has been spoken about the Executive Presidential System. Every political party wants to do away with this system and make Parliament supreme. Some call for a second chamber. But no sooner the party comes into power they forget their cry for democracy when in opposition.
(The writer is an attorney-at-law and author of several publications of Muslim personal law)