The development partners of Bangladesh in their last meeting in Washington DC also recognised the vital importance of free and fair elections for the future development of the country and stressed the importance of preventing electoral preparation from being disrupted by political violence.

Former Finance Minister late SAMS Kibria also, for the last few months of his life, spent considerable amount of time for working out some formulae for ensuring credibility of the next non-political caretaker government so that conducting a credible free, fair and neutral election is possible. He could not complete the job and the last mission of his life remained unfulfilled.

As such, it will be really a rightful way to pay proper tribute to the memory of late Kibria by effectively reforming the Act of Non-Party Caretaker Government for ensuring a credible free and fair parliamentary election for which he spent so much time before his death. It will also help the nation overcoming the present political crisis for the greater interest of the country.

The practice of installing a Non-Party Caretaker Government for organising a credible general election was introduced in Bangladesh in 1996 and so far two parliamentary elections have been organised under this new arrangement. This new system, initiated for ensuring a free and fair election, although got initial approval of all the political parties, members of the civil society and other professional groups, has by now become controversial. Some of the activities of the Non-party Caretaker government of 2001 were received with serious objections from a number of political parties of the country and a cross section of the media and other civil society members.

A number of abusive and fraudulent elections where people did not have the right to choose their rulers/government had taken place and "vote piracy", "vote hijacking" and " media coups" (media manipulation of election results) had become a part of the country's election culture. As a result of this, the new experiment of installing a Non-party Caretaker government, headed by the immediate past Chief Justice of the Supreme Court was introduced unanimously by the leaders of all political parties in 1996 in order to conduct a generally acceptable parliamentary election.

From independence up to 2001, eight Parliamentary elections, three Presidential elections and three referendums have been held in the country. Elections, at times took place to provide credibility to governments as well as to confirm constitutional changes, rather than to institutionalise the democratic process. Elections were also used to legitimize the actions of the civil-military bureaucracy carried out under the cover of Martial Law or the dictatorial rule.

In order to restore credibility to the country's electoral process and institutionalise the democratic system in the country, the leaders of all political parties waged a successful joint movement to remove General H.M. Ershad from power. As agreed upon by all the major political parties, a credible parliamentary election was held under the supervision of the Non-party Caretaker government headed by the then Chief Justice of the Supreme Court Justice Shahabuddin Ahmed in February 1991, putting the issue of Non-party Caretaker government for holding Parliamentary elections on the political agenda of Bangladesh. The experience of the 1991 Caretaker

government and the elections conducted by it caught the imagination of the general public. A sizeable segment of the population came to believe that a Non-partisan Caretaker government was a necessary factor for ensuring free and fair elections in the country.

The Bangladesh Nationalist Party (BNP), which won the election in 1991 was not apparently enthusiastic about conceding to the demand of the opposition leaders for accepting the caretaker system for conducting the future parliament elections, claiming that it was not possible for them to hand over power to an unelected body. There was lot of political agitation and demonstrations and a number of initiatives were even undertaken by various international organisations, including the Commonwealth Secretary General to resolve the crisis. Finally, the fifth Parliament was dissolved and a new election for the sixth Parliament was held without the participation of the major opposition political parties. The Bangladesh Nationalist Party, which was in power, won what was termed a farcical election by the local as well as international observers. The new government formed after the election lasted for only few days and then they were forced to hand over power to the Non-party Caretaker government.

However, the new BNP government before handing over the power finally conceded to the opposition demands and made the necessary constitutional changes for a Non-party Caretaker government to hold all future parliament elections in the country through the thirteenth amendment to the constitution.

Up to 2001, two parliamentary elections have been organised under the Non-party Caretaker government system, and the 1996 election was generally peaceful, orderly, transparent, free and fair. There were

exceptions which appeared to be attributable to individual candidates and their supporters, not part of any grand design as before during the military or dictatorial regimes Moreover, the irregularities were not significant enough to affect the overall outcome of the polls.

The President, as per the provisions of the act, will appoint the Chief Adviser from amongst the Chief Justices of the supreme court who retired last and the integrity and neutrality of the former Chief Justice of the supreme court is normally beyond any doubt. But what about the neutrality, integrity, credibility and acceptability of the ten advisers who are supposed to be appointed by the President in consultation with the Chief Adviser? The activities and general performances of a few advisers of the 2001 Non-party Caretaker government were bitterly criticised by one or two major political parties. It was said that since they were politically biased towards a particular ideology, they were not qualified to be advisers of a Non-party Caretaker government and their neutrality and integrity were questionable, at least for conducting a free, fair and credible election.

However, since now questions are being raised by different quarters about the neutrality of the Chief Adviser and some other Advisers of the 2001 Non-Party Caretaker Government and the demand for reforming the Caretaker Government Act is being stronger day by day, the leaders of major political parties, members of the civil society and other professional bodies should sit together and work out a formula for selection of advisors of the caretaker government which will be acceptable to all the major political parties. Even the parliament can amicably work out a formula but definitely not by imposing something using the strength of majority of the ruling party. Because in this case

the will or wish of the majority party may likely to go against the spirit of non-party caretaker government.

As for the selection of chief adviser, clause 3 of Article 58C of the caretaker government Act says, "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". That means while appointing the Chief Adviser, the President shall consider two criteria -- the person who among the retired Chief Justices of Bangladesh retired last and also the person should be qualified to be appointed as an Adviser.

As per clause 7b of Article 58c of the Act, the President shall appoint the Advisers from among the persons who are not members of any political party or of any organisation associated with or affiliated to any political party. Clause 10 of the same Article says that the Chief Adviser or an Adviser shall cease to be Chief Adviser or Adviser if he is disqualified to be appointed as such under the same article.

Thus it is very clear that President shall appoint the person as the Chief Adviser who among the retired Chief Justices of Bangladesh retired last. But it has not been clearly stated in the Act that if a person is not qualified to be appointed as an Adviser, can he be qualified to be appointed as the Chief Adviser? The issue is very pertinent and crucial in the context of conducting the next parliamentary election. As such, the issue needs to be resolved immediately on priority basis and government should take the initiative.

With the retirement age of the Supreme Court Judges extended by two years, the present Chief Justice will continue to be in service even beyond the period when in normal circumstances, the next parliamentary election is scheduled to be held. As such, the Chief Justice retired last is normally supposed to be appointed as the Chief Adviser of the next caretaker government if not otherwise disqualified or not available or is not willing to hold the office of the Chief Adviser.

According to available information and newspaper reports, the Chief Justice retired last was actively involved with the formation of a political party and as a reward to that he got an ambassadorial posting as a political person. Therefore a person associated with a political party automatically disqualifies himself to be an Adviser of the non-party caretaker government. And a person disqualified to be an Adviser of a non-party caretaker government shall automatically be disqualified to hold the office of the Chief Adviser of a non-party caretaker government. In such a situation, the person concerned should, considering his personal honour, dignity of a high post he held, for keeping the institution like non-party caretaker government above all possible controversy and blame and finally to ensure a really unblemished and credible free and fair election, express his unwillingness to hold the office of Chief Adviser. This will also save the nation from lot of bitterness and political acrimonies.

In this connection, another aspect of the matter specially in the context of neutrality and acceptability of the Chief Adviser, may be seriously considered by all the major political parties and an appropriate decision taken for avoiding any future possible controversy in conducting a credible free and fair election. The politically appointed judges who get elevated to the post of the Chief Justice of the country by virtue of their seniority and efficiency should "themselves feel embarrassed" in taking up the job of the Chief Adviser considering the real need of neutrality of the post and to ensure a really unblemished and credible free and fair election.

This is likely to enhance the image of the neutrality and acceptability of the non-party caretaker government and thereby the credibility of the election to be conducted by them will be more widely acceptable.

Zahid Hossain is associated with Bangladesh Enterprise Institute as Senior Research Fellow.