There is no end to the debate over the caretaker government system in our country. In fact, behind the stalemate in our national parliamentary election, lie the conflicting stands of our political parties over this issue. Unfortunately, there was dishonesty, violation of the constitution, vested interests and even professional misdemeanour involved. My book published from Prothoma Prokashon, ‘Tatyabdhayak Sarkar Bebostha Batiler Rajniti’(Politics of cancelling the caretaker system) details the history of such misdeeds and unscrupulous politics.
Readers will recall, when a movement led by Awami League was drummed up all over the country in the nineties demanding a caretaker government to ensure fair elections, the ruling party BNP rejected the demand as unconstitutional. Later when Awami League and other opposition parties staged a boycott, a one-sided election was held in 1996 and in a dramatic turn of events, the BNP government added the caretaker government system to the constitution by means of the 13th amendment and then resigned.
Later, in the backdrop of a High Court ruling regarding the abolition of the 5th amendment to the constitution, on 21 July 2010 a special parliamentary committee was formed to amend the constitution. Syeda Sajeda Chowdhury was the chairperson and Suranjit Sengupta the co-chair of the 15-member committee, 12 of whom were important Awami League leaders. The remaining three were leaders of parties within the Awami League alliance. A proposal was made to include one BNP member, but they refused.
After the 13th amendment was passed in 1996, two cases were filed challenging its legitimacy. Two benches of the High Court dismissed this ruling that the caretaker system of government was legitimate. But based on an appeal against the High Court ruling, on 11 May 2011 a majority of the Supreme Court’s Appellate Division judges headed by Justice ABM Khairul Haque passed a short order declaring the 13th amendment unconstitutional for the future.
The court at the same time ruled that as a transitional measure, in the interests of the state and the people, the 10th and 11th national parliament elections could be held under a caretaker government. In its observation, the court left it to the parliament to take a decision and to keep the judiciary away from the caretaker government system. In other words, by means of its short order the court kept the caretaker government alive, unconditionally allowing it for the next two elections. But on 30 June 2011 this ruling of the court was shot down by means of the 15th amendment to the constitution which abolished the caretaker government system.
Had the 2014 election been held under a caretaker government, Justice Khairul Haque would have been the chief advisor. However, that chance was also shot down by the 15th amendment. And then 16 months later in its full verdict the court on 10 May 2011 changed its ruling and added the condition that the next two elections could be held under the caretaker government system only with the approval of the parliament. This was an extreme sham and comparable to fraud-on-the-court. After all, the short order was the final ruling, not subject to change and the full verdict was to simply highlight its justification.
The 15th amendment was passed cancelling the caretaker government system, not only by deliberate misinterpretation of the High Court ruling, but also by disobeying the court ruling regarding the holding of the next two elections. That is why the 15th amendment was an unconstitutional constitutional amendment
Meanwhile, though a special parliamentary committee has been formed to implement that court order cancelling the 5th amendment and preventing unlawful takeover of power, the committee reviewed the entire constitution and recommended it to be amended. In its 10-month tenure, the committee held 26 meetings and consulted 104 experts, intellectuals, former presidents and prime ministers as well as politicians. Then on 29 May 2011, it recommended constitutional amendment with the caretaker government intact, giving it a three-month time limit. As the head of the Awami League delegation, the prime minister at the time also made the same recommendation on 27 April 2011 in front of the special committee.
But on 30 May, the day after the unanimous recommendation was made on 29 May to keep the caretaker government system in place, the committee changed its decision after a meeting with the prime minister. Though the unanimous recommendation of the special parliamentary committee formed by the parliament was rejected by the head of the executive, not a single member of the committee protested. To the contrary, co-chair of the committee Suranjit Sengupta said, “I am in Awami League. Awami League’s policies and decisions are my policies and decisions. Sheikh Hasina is my leader. There is nothing outside of that.” (Bangladesh Pratidin, 1 June 2011)
The day after meeting the special parliamentary committee, on 31 May 2011 the prime minister told a press conference that the court had revoked the caretaker government system, if the rule of law was to be followed, then the court ruling had to be followed. The observation of the ruling was that of the parliament deemed it necessary, then the next two elections could come under the caretaker government. However, the judiciary could not be involved.
Unfortunately, this statement was completely fraudulent. After all, in the short order of 10 May 2011 the court did not give any condition of parliament approval for elections under a caretaker government. Also, the ruling had only spoken of dropping justices from the caretaker system in reference to the 13th amendment of the constitution by the caretaker government. In short, the court was used to abolish the caretaker government system by means of the 13th amendment based on a misinterpretation.
Later on 8 June 2011 in a report sent to the Speaker, the committee recommended that the caretaker government system be dropped and the parliament kept intact, based on which the 15th amendment was passed on 30 June unilaterally in parliament and with no significant debate, even though he constitution is supposed to reflect the “will of the people”.
Nineteen days after the High Court’s short order declaring the caretaker government system unlawful for the future, the special parliamentary committee’s unanimous recommendation to keep the caretaker system for an indefinite term and the next day doing a volte-face after meeting with the prime minister and then within a month, on 20 June 2011, passing the 15th amendment to the constitution dropping the caretaker government system, is certainly an extremely dramatic and destructive decision.
As a result of this destructive decision, one-sided elections were held in 2014 and 2024 and an extremely fraudulent election in 2018, destroying our democratic system and taking our nation to the brink of disaster. Democracy is a part or our constitution’s fundamental framework and cannot be violated.
Unfortunately, the 15th amendment was passed cancelling the caretaker government system, not only by deliberate misinterpretation of the High Court ruling, but also by disobeying the court ruling regarding the holding of the next two elections. That is why the 15th amendment was an unconstitutional constitutional amendment. It is also an unconstitutional constitutional amendment for other reasons. For example, although the 12th amendment required holding a referendum, it was not done in enacting the 15th amendment. In addition, by adding Article 7B to the Constitution through the 15th Amendment, almost a third of the Constitution is made unamendable.
Amending the constitution, following Article 142, is a constitutional right of the members of parliament and no parliament can bind the successor parliament. All this is the subject matter of the book Tatyabdhayak Sarkar Bebostha Batiler Rajniti’(Politics of cancelling the caretaker system). Taking all this into consideration, a few of us have approached the High Court to review the ruling of the Appellate Division in the 13th amendment case and to revoke the 15th amendment to the constitution.
* Badiul Alam Majumdar is secretary, Shushashoner Jonno Nagorik (SHUJAN)
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir