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by A H G Ameen

People must be free to exercise their franchise and choose their representatives to Parliament. It is a violation of fundamental rights to prevent them from such an exercise. Most of the Republics enshrine in its Constitution that people are sovereign and the so called leaders or representatives are their servants but in real practice the voters are pawns in the hands of musclemen and terrorists.

Today people have lost faith in democracy in Sri Lanka due to the disruption and criminalisation of the election process which is marred by threat, intimidation, use of illegal arms, black money and corruption combined with massive rigging of votes. The main motive of the political parties is to gain power by any means, fair or foul.

It is because of this inherent drawback in the electoral system that much to their regret, the people have to live with he incompetence large - scale corruption terrorism political high handedness and misrule of the political government.

People must be free to exercise their franchise and choose their representatives to Parliament. It is a violation of fundamental rights to prevent them from such an exercise.

Most of the Republics enshrine in its Constitution that people are sovereign and the so called leaders or representatives are their servants but in real practice the voters are pawns in the hands of musclemen and terrorists. For this reason good honest and educated people keep off the portals of our politics.

This is the secnario in most of the South Asian Countries during elections. Bangladesh was no exception to it but with the introduction of the Non-party Caretaker government the corruption, intimidation and violence during elections are very much reduced.

Democracy is not something which can be limited to gossip or talk. It need sincere effort in nurturing and caring it demands a certain level of education and financial solvency from people who constitute the electorate and also a large measure of commitment and dedication from the men and women who enter Parliament as elected representatives who will run the government.

The electoral process whatever may be the system, in which the representatives are elected to the National Assembly has to be fair and peaceful. The voters must be free from duress and intimidation so that their choice of then leaders may be expressed at a poll.

In Sri Lanka the violence during the general elections has increased due to the change in the electoral system. The present system promotes violence, intimidation and rigging in a mass scale and deprive the voter to exercise his legitimate right.

The First Past The Post (FPP) system

Sri Lanka experienced the First Past the Post electoral system, the FPP since independence in 1948 to 1978. Under this system minorities in this country, especially in the multi-member electorates were able to return representatives to Parliament. The cordial relationship that existed between the Sinhalese and the Muslims, Muslims were returned to Parliament in majority Sinhala populated areas like Borella. Beruwela and Balangoda and multi-member electorates like the Colombo Central (where two muslims in 1952 and 1960 Sri Razik Fareed and Dr. M.C.M. Kaleel and in 1970 Jabir A Cader and Haleem Isnak). Harispattuwa and Batticalo.

Though the FPP system of election favoured minority representation certain discrepancies in the system were raised after the general election in 1977. The number of representatives returned to Parliament was not in keeping with the number of votes polled when a district or province was considered. For example in 1970 SLFP that formed the government polled 36.53% votes and returned 91 members to Parliament and wheras the UNP polled 37.92% votes returned only 17 MPs.

In 1977 the UNP with the CWC polled 3,179,200 votes 51% and secured 140 MPs whereas the SLFP polled 1,853,330 votes 30% and was able to return only 8 MPs. It was also felt that this system did not reflect the will of the people. Say a candidate 'A' polling 10,000 vots, 'B' 8,000 votes and 'C' 4,000 votes and 'A' is returned to Parliament under the FPP system with 10,000 vots against a total of 12,000 votes polled by the other two candidates.

Proportional Representative (PR) System

In 1978 the Proportional Representative system of election, PR was introduced. Under this system representatives to Parliament were elected according to the strength of votes cast in an electoral district. Though every single vote had it value no consideration for the personality and only a political party or a group could contest. Unlike the electorate under the FPP the electoral district is so vast the process is tedious and the elected candidate has no close rapport with the electors.

Nevertheless, the violence and intimidation during the general election increased several folds under the PR system of election. The reason being that besides violence caused by one party or group against another candidates of the same party or group fight for preference votes under the PR system.

Report of the Commissioner of Elections on the 9th Parliament

The Report of the Commissioner of Elections on the 9th Parliamentary general election held on 15th February, 1989 refers to throwing of hand bombs at polling stations, incidents of shootings near polling stations resulting in deaths attempts of forcible entry into polling stations and the failure of the police to take action, use of State vehicles and SLCTB buses in illicit their transport of voters, display of posters of candidates and party literature on such vehicles and several other illegal and unlawful acts committed during the election.

As a result there had been annulment of polls and cancellation of ballto papers. Now the tendency, as we witnessed at the past general elections it is not the failure of the police to take action but the police do work with the government in power in engaging itself in election work in support of its candidates. Furthermore the entire machinery of the government in power is engaged in election work for the candidates of the government in power. This is a death-knell to democracy in this Country. Election becomes a farce.

The type of representatives elected by forcible means to Parliament is abhorring. In the past men of integrity with education and wealth contested elections and returned to Parliament and these statesmen dedicated themselves in serving the people, spent their wealth for the people and today uneducated persons from the street enter Parliament and have enriched themselves sacrificing the people who elected them.

Report of the Commissioner of Election For The Year 1999

The Commissioner says in his report that Senior Presiding officers reported that disturbances occurred during polling in 22 polling stations in the District of Kandy, in 03 stations in the District of Matale, in 03 stations in the District of Nuwara Eliya, in 01 station in the District of Ampara, one in Puttalam, 06 in Anuradhapura and 08 in Badulla. There had been more incidents during the election which were not reported.

The Commissioner declared election null and void in a number of polling stations where there was disturbances.

It is noteworthy that in Sri Lanka elections are held in the most disruptive and criminalized manner with a record of deaths and damage to properties.

Non-party Caretaker Government

To ensure peaceful and fair election and to give the opportunity to the people to elect good educated men and women of integrity and dedication to serve the concept of Independent Caretaker Government should be introduced to Sri Lanka. An improved form of Caretaker Government that is implemented in Bangladesh imperative to Sri Lanka in the light of the dark days the people of Sri Lanka have experienced at every general election.

Brig Gen. Shamsuddin Ahmed (Retd.) says, 'During the last twenty-nine years of our independent nationhood, we have been ruled by elected political governments for about thirteen years and a half (1972 mid August 1975 and 1991 mid July 2001) and by military and autocratic government interspersed in between by non-party caretaker government for about seven months now. It is worth mentioning that the military and autocratic governments had always a large component of run away politicians from various political parties.

Majority of our people having experienced the above three types of government have experienced worst insecurity of life and property, police brutality and political highhandedness, their normal peaceful life being marred by political violence and terrorism during the rule of an elected political government. On the other hand by and large they seem to have accepted the caretaker government simply because the Caretaker Government being non-political has brought out the best of our educated manpower to run the affairs of the country with complete neutrality and commitment to the rule of law.

Political thuggery and police brutality are at a low ebb during the Caretaker Government Crime rate is on the decline."

In Bangladesh the elections conducted under the caretaker government in 1991 are said to have been unprecedently free and peaceful. The caretaker government was widely acclaimed for its impartiality and fairness.

The political parties in the Opposition in Bangladesh demanded the formation of a Caretaker Government with non political and impartial credentials for conducting parliamentary elections.

"The example set by the 1991 experiment made the people believe that the only way out to solve the crises was the formation of a neutral non-party caretaker government manned and headed by neutral non-political persons of unquestionable integrity. A bill was placed in parliament to amend the constitution in order to make necessary provisions for a caretaker government. The constitution (Thirteenth Amendment) Act 1996 was enacted by Parliament and the mechanism of caretaker government for conducting elections was institutionalized by the constitution. The government resigned after the enactment of the 13th Amendment and the former Chief Justice of Bangladesh took charge of the caretaker government as Chief Adviser on 30th March, 1996."

Amendment to the Constitution - Act No: 1 of 1996

The concept of Caretaker Government was introduced in Bangladesh in 1996 by an amendment to the Constitution. Act No. 1 of 1996. Provisions made in the Constitution under Chapter 11 A. 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 term 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 at its head and not more than ten other Advisers all of whom shall be appointed by the President and the Chief Adviser is appointed by the President from the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser.

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 in the manner described above.

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 advisers.

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 thereafter the Prime Minister and his cabinet becomes.

The qualification of the Advisers shall be:

(a) Qualified for election as members of Parliament

(b) Not members of any political party or of any organization associated with or affiliated to any political party.

(c) Not and have agreed in writing not to be candidates for the ensuing election of members of Parliament.

(d) Not over seventy-two years of age.

The Advisers shall be appointed by the President on the advice of the Chief Adviser and the Chief Adviser or any Adviser may resign his office by writing to the President.

The Chief Adviser shall have the status and remuneration and privileges of a Prime Minister and an Adviser the status and remuneration and privileges of a Minister 13. The Non-party Caretaker Government shall stand dissolved after the constitution of new Parliament.

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 person 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.

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.

Notwithstanding anything contained in Articles 48 (3). 141 A (1) and 141 C (1) of the Constitution during the period the Non-Party Caretaker 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. 16

Ambiguities in the Constitution

There are ambiguities in the provisions of the constitution concerning the Non-party Caretaker government. The relationship between the President and the Chief Adviser is undefined. The Chief Adviser is the Head of the Caretaker government under whom the election is conducted by the Commissioner of Elections.

There is no provision for the President to take any action against the Chief Adviser or any other Adviser. The President has no role to play except on matters relating to defense services. And here again there is conflict of Interests as the functions of the Chief Adviser is not clearly defined. Article 58B (3) expressly empowers the Caretaker government to exercise the executive power normally on routine matters.

It also provides that if necessary on policy matters also in which event the administration of law regarding defense services being necessarily one of the matters within the executive sphere and competence of the state. If both the President and the Chief Adviser choose to exercise powers simultaneously on the basis of their own interpretation, it may give rise to difficult problems in conducting affairs of the government.

Justice Latifur Rahman's assumption of power took place in accordance with the 13th amendment to the Constitution. The amendment was the outcome of a countrywide agitation in 1996, during Khaleda Zia's tenure as Prime Minister spearheaded by Sheikh Hasina, who was then in the Opposition. It provides for the constitutional arrangement whereby a nonparty caretaker authority, headed by the immediate predecessor of the Chief Justice of the Supreme Court will take over the reins of power as soon as the term of the elected government expires. The Caretaker government's job is to assist the Election Commissioner in holding free and fair elections".

The majority of political leaders attended the swearing-in ceremony at Bangabhaban.

But the leaders of the four-party opposition Alliance including Bangladesh Nationalist Party (BNP) chair person Khaleda Zia, the present Prime Minister of Bangladesh boycotted the ceremony on the plea that Sheikh Hasina had 'pressurised' the President Justice Shahabadin Ahmed to delay the ceremony.

At this ceremony President of the Awami League Sheikh Hasina said that the Caretaker government should hold the polls within the stipulated 90 day time-frame.

Justice Latifur Rahman, the Head of the Caretaker government has earned a good image in the judiciary and is considered neutral as far as politics is concerned at that time Within an hour of his swearing-in, the caretaker government transferred 13 Secretaries appointed by Sheikh Hasina's Awami League government.

The transfers were mainly in the key Ministers of Home, Information and Foreign Affairs. The Principle Secretary and the Press Secretary to the out-going Prime Minister were also transferred. The BNP welcomed the action.

Sheikh Hasina shaken by the drastic action expressed shock over the manner the transfers were made within an hour of the Chief Adviser's swearing-in. Sheikh Hasina in a meeting with Latifur Rahman reminded him of his government's constitutional mandate- that is only to ensure free and fair election and not to undo or review the actions of any elected government. Non-political 'pro-liberation' groups reacted strongly and said that the caretaker government should keep in mind its constitutional jurisdiction.

Such a controversy over the first action of the caretaker government was unexpected.

The past two caretaker governments kept away from controversies. However, Barrister Seyed Ishtiaque Ahmed, a respected constitutional expert and one of the leading members of Latifur Rahman at a conference with editors of leading publications, explained that what his government had done was within its mandate.

The appointment of former Auditor and Comptroller General M. Hafizuddin Khan as one of the advisers was not to the liking of the outgoing government. The Awami League chief questioned the 'legal and moral' authority of Seyed Ishtiaque Ahmed to head the interim government's team to review the political cases filed during the tenure of the Awami League government. Sheikh Hasina questioned, 'How can Barrister Ahmed review the cases when he himself was the lawyer of a BNP lawmaker who filed a writ petition against the Public Safety Act."

The initial controversies notwithstanding, the caretaker government had given top priority to seizing illegal arms and arresting terrorists and their patrons in order to make the law and order situation congenial for peaceful elections.

It was reported that Bangladesh had more than 3000 unauthorised small arms in circulation mostly in the hands of terrorists, who were being hired by political parties. A country wide drive was done to round up the terrorists and seize their arms.

Latifur Rahman's approach was different to his two predecessors - President Justice Shahbuddin Ahmed in 1990 and Justice Habibur Rahman in 1996.

Khaleda Zia expressed her dissatisfaction over the performance of the administration and said that Awami League people were being put at all places and the Chief Adviser has failed to maintain neutrality.

Sheikh Hasina's Awami League was speaking of its achievement in poverty alleviation and on the foreign relations front including relations with India. Further, the success in the Peace Accord in the decade old Chittagong Hills Tract (CHT) insurgency and the signing of the 30 year Ganga water sharing treaty with India.

On the other hand Khaleda Zia's Bangladesh National Party (BNP) alleged that Awami League rampant corruption and polarisation at all levels during the five year rule and that the ruling party was involved in violence and promoting violence. Khalida Zia claimed a two thirds majority victory at the polls. Khalida Zia's BNP has won the election.

The caretaker government in its anti-terrorism drive arrested the son of a prominent Minister in the Sheikh Hasina Cabinet besides several thousands of listed terrorists and seized large quantities of small arms.

Some are critical as to the Non-party Caretaker government engaging upon executive action outside the scope of conducting the election. They say that the Chief Adviser has no jurisdiction under the constitution.

The constitution provides, the Non-party government shall act as an interim government and 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 function shall not make any policy decision. Further the status of the Chief Adviser is that of the Prime Minister and other Adviser that of Ministers.

The terms 'policy decisions' and 'necessarily' need further clarifications. However, I am of the opinion that the Chief Adviser and his Advisers could engage in executive functions as described above and they were within the jurisdiction in their actions during the election.

Its only then they can meet situations against violence, intimidation corruption and muscle-power in order to ensure a free and fair election.

Some are against the setting up of a Non-party government as it is contrary to the essence of democracy. This process reflects distrust and result on the national parties and their leaders.

In my thinking with the increasing violence, intimidation, black-money and muscle power of the political parties and the type of candidates who enter the political arena there should be a control by an independent educated body so that democratic principles may be preserved. It is only by such an institution that the drifting situation may be averted and a fair and peaceful election be held.

But Bishwa Nath Upadhyaya is of a different view. He says: "Conducting free and fair election after every dissolution of parliament, opting for an unrepresentative government, though for a short time, is definitely an unwarranted interference with the democratic process.

Whatever may be the constitutional provisions for the conduct of the government during elections, the ultimate success or failure of a democratic system depends largely upon the attitude and behaviour of the political parties and their leaders that work them.

Non-party Caretaker government should introduced to Sri Lanka at the earliest opportunity. For this, an amendment to the Constitution of Sri Lanka has to be made to give effect to this process. Perhaps the next general election after the December 2001 may be held in Sri Lanka under a Non-party Caretaker government.

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