Recently, the Appellate Division delivered a ruling that reinstated the widely discussed caretaker government system. You have written several research-based articles on the process of abolishing the caretaker government system. How do you interpret the fact that the caretaker system was annulled in court and then restored?
Ridwanul Hoque: The caretaker government system was incorporated into our constitution in 1996 through the 13th amendment. It was the result of a political movement. Compared to other countries at the time, the caretaker system during elections was a major innovation, as no other country had a similar system in its constitution.
The first election under the caretaker government in 1996 was conducted successfully. Awami League came to power in that election. The 2001 election was also held under the caretaker system, and the BNP came to power. The next scheduled election in 2006 was delayed and eventually held in December 2008. In total, three consecutive elections were conducted under the caretaker system, and they were largely free, fair, and accepted both domestically and internationally.
After the Awami League-led Grand Alliance came to power in 2009, constitutional amendment efforts began in 2010. On 10 May, 2011, the Supreme Court Appellate Division, through a brief order, declared the 13th Amendment (caretaker government) unconstitutional. The Grand Alliance then passed the 15th Amendment citing this ruling. The primary objective of the 15th Amendment was to abolish the caretaker government system. Subsequently, three elections were held under party-led governments in 2014, 2018, and 2024, all of which were controversial and marred by allegations of fraud.
Following the 2024 mass uprising, the situation changed. A review petition was filed with the Appellate Division regarding the caretaker system. The court accepted the review petition, nullifying its previous ruling, and thus the caretaker government system was revived.
Two points are notable here. First, the court has said that the caretaker system will be automatically included in the constitution and does not require a new amendment. However, I believe that this issue should be discussed in the upcoming parliament. The current context is very different from 1996. To ensure free and fair elections under this new context, the caretaker system needs to be made more effective. Lawmakers are expected to address this in parliament.
Second, the court’s recent decision will not take immediate effect. It will operate prospectively or come into effect at a future date. The court has said that the next parliamentary election will be conducted under an interim government, while subsequent elections will be under the caretaker system. The court’s decision reflects consideration of the present situation, avoiding complications that could arise if the system were implemented immediately.
Some have commented that with the restoration of the caretaker system, the country will move toward democratic stability. In the past, there were allegations that extending judges’ tenure allowed manipulation of the caretaker system. Can we say with certainty that democracy will be restored and elections will be free and fair just because the caretaker system is back?
Ridwanul Hoque: I had criticised the Appellate Division’s previous ruling that declared the caretaker system unconstitutional and undemocratic. Democracy should be understood in the context of a country’s overall situation. The caretaker system was included in the constitution based on consensus among political parties, and elections held under it were free and fair. Therefore, it is reasonable to assume that it will support democracy. However, excessive optimism is unwarranted. The caretaker system is supportive of democracy in Bangladesh’s context, but its effectiveness depends on how it is implemented.
Some flaws are already visible. The major defect is the provision of appointing the last Chief Justice as the head of the caretaker government. This created political crises in the past, including the emergence of a military-backed caretaker government that stayed in power for two years instead of three months. From past experience, this provision risks politicising the judiciary. Judges must be kept as far as possible from political controversies, as involvement negatively impacts judicial independence. I personally do not support including judges in such a government. Therefore, the structure of the caretaker system needs to be discussed in parliament and by civil society forums.
A caretaker or interim government is unelected. There are questions about the scope of authority and accountability of such governments. What is your opinion?
Ridwanul Hoque: All governments, elected or unelected, must have accountability mechanisms. The interim government led by Chief Adviser Professor Muhammad Yunus, although unelected, must be accountable to political parties, the media, and civil society. However, no significant steps have been taken so far, and no accountability mechanism has been established. The government is repeatedly failing this test.
For example, the interim government was formed almost exactly following the caretaker model. Ideally, it should be neutral, and no member should contest in the upcoming election. However, there is ongoing debate about a few advisers participating in the next election, which compromises neutrality. Before the election schedule is announced, reports suggest they may resign, but they are still enjoying perks and influencing voters, which creates a conflict of interest and is ethically questionable.
According to the interim government’s decision, the parliamentary election and a referendum will be held on the same day, with four questions in the referendum. Voters will answer each question with ‘Yes’ or ‘No.’ How do you view this?
Ridwanul Hoque: Having only one answer for one of four questions is highly unusual. Since the referendum will be held on election day, public interest is already low. If there is confusion about the questions, it will create uncertainty. Therefore, the questions should be consolidated into one. If the questions are unclear or the message is not properly conveyed, the purpose of the referendum may fail.
Thank you.
Ridwanul Hoque: Thank you.