One of the more interesting constitutional 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 come down forcing this behavior. Presumably, a Bangladeshi government did not honor 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.

3.01 On neutral ground

Bangladesh prepares for parliamentary elections under the charge of a non-party caretaker government.

With the completion of a full five-year term by Prime minister Sheikh Hasina’s Awami League government, the first-ever elected government in Bangladesh’s 30-years-old political history to record this achievement, a non-party caretaker government headed by former Chief Justice Latifur Rahman_was sworn in on July 15. As per the Constitution, Rahman will act as the Chief Adviser; he has nominated a 10-member council of advisers to run the country for the period until the general elections.

Former Prime Minister Sheikh Hasina in Parliament on July 10.

Her government is the first in the country to complete a full five-year term.       It was the kind of constitutional transfer of power that Bangladesh, ruled successively by military and pseudo-democratic leaders, had never witnessed before. And, for the Mfirst time, the Seventh Jatiya Sangsad survived until the last day of its tenure, though its smooth functioning was obstructed, mainly by the long absence of members representing the main Opposition parties.

Justice Latifur Rahman’s assumption of power took place in accordance with the 13l 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 non-party 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 Commission in holding free and fair elections.

Article 58 D of the Bangladesh Constitution says: “The non-party caretaker 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 it shall not make any policy decision.”

The whole of Bangladesh seemed to welcome the transfer of power, and that was evident in the congratulatory messages received by the caretaker government. The majority of political leaders attended the swearing-in ceremony at Bangabhaban.

However, leaders of the four-party Opposition alliance, including Bangladesh Nationalist Party (BNP) chairperson Khaleda Zia, boycotted the ceremony. The boycott was on the plea that Sheikh Hasina had “pressured” the President, Justice Shahabuddin Ahmed, to delay the ceremony. However, the BNP-Jamaat-led alliance swiftly congratulated the Chief Adviser and pledged to extend their full cooperation to him. Sheikh Hasina, who is also the president of the Awami League, congratulated the Chief Adviser and promised him full support. But she said the caretaker government should hold the polls within the stipulated 90-day time-frame.

President Shahabuddin Ahmad with Chief Justice Latifur Rahman who was sworn as Chief Adviser to the caretaker government on July 16.

There is great expectation that the administration of Justice Latifur Rahman, the third such in the country’s history, will be able to hold credible elections and aid the nation to make a success of its democracy. Latifur Rahman has earned a good image in the judiciary, and is considered neutral as far as politics is concerned.

Within an hour of his swearing-in, the caretaker government transferred 13 Secretaries appointed by the Awami League government. The transfers were mainly in the key Ministries of Home, Information and Foreign Affairs. The Principal Secretary and the Press Secretary to the outgoing Prime Minister were also transferred. The BNP-Jamaat-let coalition welcomed the action. The Awami League, shaken by the drastic action, was guarded in its response. It expressed shock over the way the transfers were made, within an hour of the Chief Adviser’s swearing-in, and before that of the Council of Advisers. Sheikh Hasina, in a meeting with Latifur Rahman, reminded him of his government’s constitutional mandate – that is, only to ensure free and fair elections, 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 very first action of the caretaker government was unexpected. The past two caretaker governments kept away from controversies. However, Barrister Syed Ishtiaque Ahmed, a respected constitutional expert and one of the leading members of Latifur Rahman’s Council of Advisers, defended the government action. 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 Syed Ishtiaque Ahmed to head the interim government’s team to review the political cases filed during the tenure of the Awami League government. “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? She asked on July 23.

The leaders of the caretaker government were also criticized for not visiting, soon after their swearing-in, the national mausoleum in Savar to pay respects to the martyrs of the nation’s War of Liberation. The Chief Adviser and the Council of Advisers made the visit after three days. The interim administration also faced flak for stopping the broadcast of quotations from Sheikh Mujibur Rahman, “the Father of the Nation”, by the state-run Bangladesh Television (BTV) and Bangladesh Betar. The administration has issued a warning against damaging or destroying Mujib’s portraits, after newspapers reported that BNP and Jamaat-e-Islami activists damaged Mujib’s images and attacked the offices of the Awami League and its front organizations in many places.

The major political players are well aware of the limit to which they can criticize the government. Even if they feel aggrieved by any of its actions, they have to take it in their stride. They know that if the system of having a caretaker government to hold free and fair elections fails, there will be no alternative before the country.

The initial controversies notwithstanding, the caretaker government has 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 is reported that Bangladesh has more than 3000 unauthorized small arms in circulation, mostly in the hands of terrorists, who are being hired by political parties. A countrywide drive has begun to round up the terrorists and seize their arms.

By all initial indications, Latifur Rahman’s stint will be different from that of his two predecessors – President Justice Shahabuddin Ahmed in 1990 and Justice Habibur Rahman 1996. The challenges before the third caretaker government are much greater, and if it succeeds -probably it will – the credit will be of a much higher degree.

Justice Latifur Rahman has hinted that he will arrange a meeting between Sheikh Hasina and Khaleda Zia, the two main contenders for power, in an effort to make his job easier.

BNP leader Khaleda Zia. Her party hopes to win a majority in the next Parliament. Despite her initial criticism, Sheikh Hasina felt that the caretaker government – she had insisted that the concept be included in the Constitution – should not be embarrassed. She, however, said that the caretaker authority should not consider the elected government of the immediate past as “an opponent”.

In a dramatic development on the evening of July 23, Khaleda Zia led a five-member delegation to the Chief Adviser. After an hour-long meeting with him, Khaleda Zia told journalists that she had expressed her “dissatisfaction” over the performance of the administration, which she said had “failed to maintain neutrality”. “Awami League people are being put at all places,” she alleged. She threatened to announce certain “programmes” if the alliance’s charter of demands were not met immediately.

It is certain that the coming round of elections will be a fiercely fought one. The battle lines have been drawn. The Awami League, which will go it alone, believes that it will win with a comfortable majority. In support of this confidence, it cites the “massive infrastructural development” its government has carried out, the achievement of “surplus food production from a situation of deficit”, and the government’s “laudable disaster management”, “commendable women’s empowerment”, and achievements in poverty alleviation and on the foreign relations front, including relations with India. Its government, it says, made “immense successes” in the resolution of the decade-old Chittagong Hill Tracts (CHT) insurgency and in the signing of the 30-year Ganga water sharing treaty with India.

The BNP-Jamaat coalition has claimed that it will win a “two-thirds majority”. Its confidence is based on the argument that the Awami League stands “discredited” after its “five years of misrule”, for “pursuing pro-Indian and anti-Islamic policies”, “plundering the national wealth”, “rampant corruption” and “politicization at all levels”. One of the major charges leveled by the coalition against the Sheikh Hasina government is that its tenure witnessed “the worst forms of terrorism”, which involved the ruling party’s musclemen. Incidentally, the caretaker government, in its anti-terrorism drive, has arrested the son of a prominent Minister in the Sheikh Hasina Cabinet, besides several thousands of listed terrorists. It has seized large quantities of small arms.

It may be too early to predict the winner, but if one goes by the percentage of votes won by the BNP, the Jamaat-e-Islami and the small fundamentalist groups in the 1996 elections, the margin of victory will be very thin. But till date, the anti-Hasina forces have failed, despite repeated efforts, to create a sufficiently strong anti-incumbency wave to give themselves extra mileage in the race.

The fact that former President General H.M. Ershad dramatically quit the Khaleda Zia led alliance and formed the Islami Jatiy Oikya Front with the Pir of Charmunai Maulana Fazlul Karim, an orthodox sectarian leader, has weakened the BNP-led alliance to some extent. Ershad’s political compromise has gone to such an extent that he even agreed to the Pir’s diktat that his wife, Raushan Ershad, an ex-Member of Parliament and a senior leader of the Jatiya Party, must wear a veil if at all she comes to attend any of the front’s meetings. The Pir is against women’s leadership in politics.

The 11 -party Left-leaning alliance, in which the dominant forces are the Communist Party of Bangladesh (CPB), the Workers party, the Ganoforum led by Dr. Kamal Hossain, and the two factions of the Bangladesh Samajtantrik Dal (BSD), has decided to field candidates in 180 of the 300 constituencies. These parties had no seats in the last Parliament. Their long-cherished dream to become the “third alternative” in national politics has also not materialized. They seemed highly critical of the Awami League, but were neither soft towards the BNP – mainly because of the BNP’s alliance with the fundamentalist Jamaat-e-Islami. The candidates of the 11-party alliance, if fielded, are likely to cut into the votes of the Awami League.

Another tiny stream in politics is the rebel faction of Ershad’s Jatiya Party, which is now led by the Communications Minister in Sheikh Hasina’s Cabinet, Anwar Hossain. This faction, with 12 MPs in the just-dissolved Parliament, will fight the elections on its own. The selection of candidates have begun. The Awami League has finalized most of its nominees, even those for the prestigious seats in the Dhaka metropolis. The BNP-Jamaat-led alliance appears to have decided to delay the announcement of its list, may be for strategic reasons. It is likely that Khaleda Zia will announce the nominees only after the poll schedule is announced by the Election Commission.

3.02 Elections and Crisis of Confidence

The institution of election is held in high esteem in democracy. This is because it does not only uphold the freedom of the citizens to choose their leaders, but also creates genuineness of the government and thereby helps sustain stability in the political order. Democracy theorists regard election as a useful tool for legitimization of regimes and control mechanism, integration of social order, system capability, participatory behaviour, and political institutionalization. It is through the means of election, the politicians reassure their commitment to deal with the crisis involved in the process of national development. The essence of this commitment is that while the competing sides do not agree on different political issues, they keep consensus on fundamental matters of the state. This agreement establishes trust of the parties and people in the election process and a tradition where the ‘winning party’s forming the government and losing side’s accepting defeat’ gets its roots.

It is worth mentioning that elections have played a historical role in this country. During the days of united Pakistan, the elections of 1954 and 1970 were widely acclaimed as fair polls and they had significant impacts on the people’s political movements which ultimately led to the achievement of independent Bangladesh in 1971. But as observed, in the post-independence period, there had been a gradual alienation of the electorate from the election process. This was mainly because of the alleged electoral malpractices committed by the power holders. The situation further deteriorated since the assumption of state power by the politically ambitious military rulers. There were attempts to use elections as the instrument to legalize their political authority by creating a faced of democracy. Thus the whole election process ranging from nomination of candidates, scrutiny, campaigning, voting, and counting to declaration of results, was subjected to abuse of the self seeking quasi-democratic and autocratic regimes. During elections, the use of government machinery and violence were pervasive but the state controlled election Commission declared the fairness of the polls. As the election results were always a foregone conclusion, the consequences of the four parliamentary elections of 1973, 1979, 1986 and 1988, three presidential elections of 1978, 1981 and 1986, and two referendums of 1977 and 1985 did not prove instrumental in rendering positive effects on the political process. The nation, instead witnessed subsequent precipitation of political crises leading to prolonged instability.

3.03 Demand for Fair Polls and Caretaker Government of 1990

During the rule of General Ershad, the crisis of people’s confidence in the stage-managed election system culminated into an anti-autocracy movement led by the country’s major opposition political alliances. People’s aspiration for restoration of democracy through fair polls was ultimately transformed into a united struggle with a forceful demand for ‘neutral caretaker government’. It was known that the ‘caretaker’ demand was first raised by the fundamentalist Jamat-i-Islami in 1983 but it did not enlist any support during that time from the major parties including Awami League and BNP. Eventually ‘caretaker government’ became a common demand of the combined opposition in 1990. as such, the Joint Declaration of Three Alliances included the following specific points on ‘neutral caretaker government’

“We the 15-Party, the 7-Party and the 5-Party alliance, shall participate only in an election to a sovereign parliament and only when such an election is held under a non-partisan, neutral government.Ershad and his government will be forced to resign.An interim caretaker government will be formed the prime responsibility of that government …will be to ensure holding of a free and fair election to a sovereign parliament within three months…. The head of the caretaker government will be non-partisan and neutral and will not participate in presidential, vice-presidential or parliamentary elections.No minister or his caretaker government will likewise participate in elections….The caretaker government will only run the routine administration and will reconstitute the Election Commission…..With a view to holding free and fair elections…… The interim, caretaker government wills handover power to the sovereign parliament, elected through free and fair elections”

The above opposition formula was soon translated into reality through the ousting of Ershad regime and handing over power to Chief Justice Shahabuddin Ahmed. It is noteworthy that the neutral caretaker government of Justice Ahmed was formed without prior amendment to the Constitution. It was understandable that there was indeed a difficulty in convening the Parliament on account of shortage of time and hiding of most MPs belonging to Jatiys Party. While questioning the legality of the new government, Ahmed made the following observation, “a question arose as to whether, having not resigned from his post of Chief Justice which was an office of profit, Shahabuddin could assume the political office of the Presidency and return to the post of the Chief Justice again after completing his term as Acting President. The answer was that the new Parliament would make the necessary provisions to cover such temporary illegality under the doctrine of ‘supreme necessity'”.  Needless to mention, the caretaker government of Justice Shahabuddin Ahmed had the basis of Public support and hence the legality of its action was beyond question. All its activities were thus ratified subsequently by the popularly elected 5th Parliament in 1991.

3.04 Neutral Caretaker Government and Shahabuddin Syndrome

In a critical situation of the country, Justice Shahabuddin Ahmed took over the position of Acting President and headed a much demanded neutral caretaker government. It was indeed greatly difficult for anybody to function under prevailing odds.

The system left by the autocratic rule was characterized by corruption, mismanagement and recklessness, and, in such a situation, restoring a congenial environment for organizing fair polls was not at all easy. Notwithstanding this baffling scenario, Justice Ahmed’s sincerity was all along observed. He steered the wheel of the state in a purely unbiased manner and left no scope to question his neutrality.

Although, Justice Shahabuddin Ahmed received necessary support from the major political alliances and parties, he had to intelligently balance the conflicting relationship between the two rivals, Awami League and BNP. He also got prepared to face other challenging forces including the supporters of the fallen autocrat both in Jatiys Party and in the armed forces. During his service as the head of a caretaker administration, necessary efforts were made to avoid any sort of dilatoriness in state management. His certain innovative moves like the formation of the Task Force to suggest remedies for the prevailing problems at various sectors, and improving the services of the judicial system, paved the way for streamlining the activities of the next government. Besides such actions, the major steps which were taken by Justice Ahmed for organizing free and fair elections have been discussed in the earlier chapter.

In our political history, as was observed, there was a time when whoever had held state power never left office willingly. Justice Shahabuddin Ahmed has been an exception in this regard. Unlike the previous rulers, his actions and words proved that he was an unavaricious person. He could linger his stay in office if he had wished so, but he set an example that he had no craving for state power. During his tenure as the head of the state as well as government, Justice Ahmed reportedly refused to accept any state benefit. He had all integrity in his own profession and thus, before accepting the Acting President ship, he made it conditional to return to his original position once his imposed task was completed.

As noted earlier, in the event of lack of agreement between the Treasury and the opposition bench in the 5lh Parliament, Justice Ahmed used his good office for the smooth passage of the Twelfth Amendment. Later on, his rejection of the offer of Presidentship did signify his magnanimity. It can be said that his timely and unbiased efforts, arbitration, mediation and dedication contributed significantly to organizing the widely acclaimed free and fair national election and subsequent transition to parliamentary democracy in Bangladesh.