Caretaker govt: How Hasina killed a system that ensured free and fair elections
Hasina chose to follow one part of the verdict, but ignored the other part which validated prospectively holding two more parliamentary elections under the non-partisan caretaker government. Her government abolished the caretaker government through the 15th amendment to the constitution in June 2011, unsettling a settled issue
The Supreme Court's split verdict that declared the election time non-partisan government "illegal" had allowed the system to be practiced for holding two more parliamentary elections for the sake of "safety of the State and its people."
The 15-member parliamentary special body formed by the House, consisting of senior MPs to chalk out constitutional amendment proposals, also unanimously decided to retain the system in line with the apex court's verdict.
But Sheikh Hasina's had the final say, which would later seal the fate of democracy in Bangladesh.
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When in the afternoon of May 30, 2011, members of the special committee went to her office in parliament building to consult with her before finalising their proposals to be placed before the House, she said "NO" to one of the proposals which was drafted by the committee on retention of the caretaker system.
"We should uphold the Supreme Court's verdict. Why will we dishonour the verdict?" a special committee member quoted the premier as saying at the meeting.
Hasina chose to follow one part of the verdict, but ignored the other part which validated prospectively holding two more parliamentary elections under the non-partisan caretaker government.
She opted for partial implementation of the verdict to abolish the caretaker government which would allow her to stay in office during the next parliamentary elections.
Her government abolished the caretaker government through the 15th amendment to the constitution in June 2011, unsettling a settled issue. Hasina retained power by holding three stage-managed elections under her government.
The BNP and some other opposition parties boycotted two of them, in 2014 and 2024. BNP joined the 2018 election after Hasina promised fair elections. But it was rigged the night before the election day, which is now known as the "midnight" election.
How things unfolded
When the special parliamentary body was formed through a resolution passed by parliament in July 2010, the nonpartisan election time government was not an issue at all.
The committee was assigned to come up with proposals following another verdict delivered by the Supreme Court's scrapping the 5th amendment to the constitution that validated many abrupt changes in the constitution brought by the martial law regime after the August 1975 bloody changeover of the government.
BNP lawmakers did not join the special committee as they knew well that most of the changes in the constitution were brought by their party founder Gen Ziaur Rahman during the country's first martial law regime, and the special committee would work on those changes.
For seven months since its formation, the committee consisting of MPs of Awami League, Jatiya Party, Workers Party and Jatiya Samajtantrik Dal, worked extensively to draft the proposals.
A number of former chief justices including Justice Mustafa Kamal, Justice Mohammad Fazlul Karim and Justice Tafazzul Islam who joined the special parliamentary body have not questioned the legality of the caretaker government system.
They however proposed to scrap the then provision which allowed former chief justices to lead caretaker governments, because according to them, the then provision contributed to making the judiciary controversial by hampering its independence.
But out of blue, in May 2011, the Appellate Division of the Supreme Court-led by then chief justice Khairul Haque, less than two weeks before his retirement, declared the 13th amendment to the constitution that introduced the caretaker government system "illegal."
It is worthy to note that during the hearing on the 13th amendment case before the top court, most of the eminent jurists who were appointed as amicus curiae to help the top court reach a prudent decision, advised the court to retain the caretaker government system.
Three top judges of the bench agreed with jurists and strongly defended retaining the caretaker government system, arguing that the system did not suffer from any legality crisis.
Three other judges did not agree. Then chief justice Khairul Haque cast his decisive vote, declaring the constitutional provision for the caretaker government illegal.
What the dissenting verdict says
The sole argument of Justice Khairul Haque who cast the decisive vote declaring non-partisan election time government "illegal" was that unelected people could not exercise executive powers for a single moment. He ignored the political reality in Bangladesh. Three judges agreed with him.
But three other judges who gave dissenting verdict disagreed with Justice Khairul came up with a strong reasoning in support of the nonpartisan election time government.
Justice Abdul Wahhab Mia, one of the three judges who wrote a dissenting judgement, said the concept of caretaker government had been introduced in the constitution to protect and safeguard democracy.
"It is designed to be an aid of democracy and not for its destruction. It was a popular demand. People have accepted it. It is for the greater interest of the public good of the country. It is wholly constitutional," he said according to the full copy of the verdict.
"Free and fair elections are an essential prerequisite of a democracy. Unless a free and fair election is ensured, democracy cannot survive," he said, adding, "For various reasons, democracy is a twilight affair in Bangladesh. Democratic process was thwarted many times. With the exception of 1954 elections, all elections in this country under a party government were not free and fair."
He said the confrontational political culture in the country was a major obstacle to holding free and fair parliamentary polls under partisan governments.
"Animosity and adversarial attitude among the political parties is so high that the leader of the House and the leader of the opposition in parliament [Sheikh Hasina and Khaleda Zia] are determined not to sit together or even meet each other at national events.
General elections cannot be held under political parties in power as long as this persists and presently there is no alternative to a non-party caretaker government for holding the polls in a free, fair and peaceful manner," Justice Wahhab observes in the judgement.
He stated money and muscle power will rule the election in the absence of the system. Besides, the party in power will resort to exerting undue influence upon the government machinery to rig elections and manipulate results. In the process, democracy will again be a far cry and the supremacy of the people would remain nowhere to be seen, he said.
"It will be a mockery to say that all powers of the Republic belong to the people as enshrined in article 7 of the Constitution, unless the people get a chance to practise democracy, that is, they can exercise their rights of adult franchise in selecting their own representatives in a free, fair and impartial general election of members of parliament; the 13th Amendment has ensured the said rights of the people…." he observed.
Holding one or two or more by-polls in a free, fair and peaceful manner under the ruling party in no way guarantees free, fair and peaceful national polls, he said.
"Similarly, holding elections to the local bodies by the Election Commission under the political party in power in a free and fair manner does not make any difference, because by holding such elections a political party does not go to power," Justice Wahhab adds.
He said "We should not confuse two things, democracy and Parliament. Free and fair election is part of democracy and a fundamental structure of the Constitution. And Parliament is the product of democratic process through a free and fair election," he said. "So, in the absence of free and fair elections, Parliament cannot have real legitimacy and in such Parliament, people will have no representation.
We should not also have any special fascination and love for the Parliament if its members are not elected by the people in a free and fair election and thus, do not have a true representation to the people."
Another judge of the apex court, Justice Nazmun Ara Sultana, agreed with Justice Wahhab's views and judgement.
Justice Imman Ali, who also favoured retaining the caretaker government, noted: "In the context of our political rivalry, we cannot seriously expect the party in power to abstain from exerting unfair influence during election. Hence, no fair election can be held while any particular party is still in power. Therefore, there is an obvious need for a neutral interim government."
Moreover, the country's history suggests the ruling party that continues to enjoy power even after the dissolution of parliament is unable to hold free and fair elections to full satisfaction, and the opposition invariably alleges undue influence on the polls process, he added.
What the jurists advised the court
Most of senior lawyers who were appointed as amicus curiae to help the apex court reach a prudent decision on the caretaker government case advised the court to retain the system.
They argued there was no question of legality of interim government as it was an outcome of people's movement and people accepted the system, and most importantly, it addressed the long politically heated issue as to who would be in office during parliamentary elections.
They even warned that if the caretaker government system was abolished, the country would be plunged into a political crisis again, as opposition parties would not join polls under a partisan government, which had no record of holding a free and fair election since the independence of Bangladesh.
Barrister Rafique-Ul Huq told the court that though the concept of non-party caretaker government is contrary to the basic structures of the constitution, if the same is abolished, then 1/11 may come again, so he submitted that the system should be continued.
He made a categorical submission that even if the highest court declares the amendment as illegal, the BNP will not participate in election, and then again there will be chaos in the country like in 1996 when AL and all other opposition parties launched violent street agitation forcing the then BNP government to introduce the caretaker government by amending the constitution.
Barrister M. Amir-ul Islam, had submitted that merely holding an election cannot give legitimacy to the result of the election unless the process of such election is transparent.
He further stated that "our past experience shows that the election held under the political government was not free and fair and the people who are the supreme authority to decide their representatives could not exercise their right of adult franchise because their votes were hijacked by muscle power and money."
He contended that the caretaker government provision, in no way, has impaired democracy and independence of the judiciary at all and therefore, the question of declaring the same ultra vires the constitution does not arise at all.
Former attorney general Mahmudul Islam said constitutionality of a provision of the constitution cannot be decided without considering the context behind passing the same.
Mahmudul Islam further said that the Appellate Division "has a responsibility to see the likely consequences if the 13th amendment is declared ultra vires; if the 13th amendment is held invalid today, it is almost certain that the opposition parties will not participate in the election and then democracy will be a far cry; it is true that the provisions of the amendment suspends representative government for short interregnum, but ensures operation of democracy in the country."
The former attorney stated that "if the thirteenth amendment is struck down, free and fair election of Parliament shall be an illusion and in the process, democracy shall be set back. The Non-Party Caretaker Government system must be there because of the social and political situation of our country."
Interestingly, during the hearing on the 13th amendment case, then attorney general, Mahbubey Alam, also supported the caretaker government system saying that the then ruling party was compelled to go for the amendment in the face of the popular demand from the political parties and the civil society.
He said that the constitutional changes took place because of historical events and the same thing happened in passing the 13th amendment in the backdrop of the Magura-2 by-election, and the past experience of the other elections held under the political party in power.
He further stated that the Republican character of a country is lost only when a dictator comes to power. Because of the introduction of non-party caretaker government by the thirteenth amendment, the Republican character of the constitution and the country has not been destroyed, rather it has strengthened democracy; the President being an elected person during the non-party care-taker government, he remains as the Head of the State and the non-party caretaker government collectively remain responsible to him, so the Republican character of Bangladesh is, in no way, affected.
He, by referring to the Indian Constitution, said that India's President has the power to impose its rule in any State in case of necessity and in fact, in the past President's rule in some States of India was imposed, but that, in no way, destroyed its democratic character.
Then chief justice Khairul Haque however did not agree with those appeals and arguments. On May 10, 2011, he opted for declaring non-partisan caretaker illegal.
Later then PM Hasina opted for partial implementation of the verdict and ignored the recommendation of the special parliamentary body for maintaining the election time government system.
The ultimate outcome became dangerous. The constitution lost its supremacy. The electoral democracy was trampled first in the 2014 parliamentary election and continued until the 7 January parliamentary election, giving birth to an authoritarian regime which collapsed on 5 August.
"It [the caretaker government system] is designed to be an aid of democracy and not for its destruction. It was a popular demand. People have accepted it. It is for the greater interest of the public good of the country. It is wholly constitutional"
Justice Md Abdul Wahhab Miah, Dissenting judge in the 13th amendment case
"In the context of our political rivalry, we cannot seriously expect the party in power to abstain from exerting unfair influence during election. Hence, no fair election can be held while any particular party is still in power. Therefore, there is an obvious need for a neutral interim government."
Justice Imman Ali, Dissenting judge in the 13th amendment case
"Though the concept of non-party care-taker government is contrary to the basic structures of the constitution, if the same is abolished then 1/11 may come again, so he has submitted that the system should be continued."
Barrister Rafique-Ul Huq, Amicus Curiae in the 13th amendment case
"Our past experience shows that the election held under the political government was not free and fair and the people who are the supreme authority to decide their representatives could not exercise their right of adult franchise because their votes were hijacked by muscle power and money."
Barrister M. Amir-ul Islam, Amicus Curiae in the 13th amendment case
"If the thirteenth amendment is struck down free and fair election of Parliament shall be an illusion and in the process the democracy shall get a setback. Non-Party Care-taker Government system must be there because of the social and political situation of our country."
Mahmudul Islam, Amicus Curiae in the 13th amendment case
"The Republican character of a country is lost only when a dictator comes to power, because of the introduction of non-party caretaker government by the thirteenth amendment, Republican character of the constitution and the country has not been destroyed, rather it has strengthened democracy"
Mahbubey Alam, Then attorney general who supported the caretaker government
Shakhawat Liton is the deputy executive editor at The Business Standard
