Court restores caretaker system but cautionary tales need to be heeded

The Appellate Division of the Supreme Court has finally cleared the path to bring about the most significant change to the country's political system since 2011. Or, to put it in another way, the court has restored the most common-sense political reform ever enacted in Bangladesh, which was jettisoned 15 years ago in a mind-boggling display of political short-sightedness. 

The top court on 9 June upheld an earlier verdict by the High Court, striking down aspects of the 15th Amendment which had abolished elections under a non-partisan caretaker government. 

In short, future national elections will be held under a non-partisan caretaker government thus vastly increasing the likelihood of public confidence in the electoral process. This brings us back full circle to 1996, with a touch of irony. 

Back in 1996, it was the Awami League which took to the streets to demand elections under caretaker governments. The Bangladesh Nationalist Party, in power at the time, resisted the demand. 

But boycott of the 15 February elections in 1996 by most opposition parties, coupled with street agitation, finally convinced the BNP to shift its position and embrace the caretaker idea. 

Fast forward 15 years, and it was the Awami League which passed the 15th Amendment to the constitution, striking down the provision for elections under caretaker governments. The justification? A Supreme Court ruling a month earlier that termed the unelected caretaker government a "violation of the constitution".

Courts in a political fight

This was a fateful decision by the Awami League. The caretaker government system was one of those rare "settled issues" in Bangladesh, where everyone had agreed on the way forward. 

Abolition of the system ensured that Bangladesh would be beset with political instability from then on, and that the public would likely lose faith in the electoral process. 

The last three elections under caretaker governments before its abolition — June 1996, 2001 and 2008 — had produced voter turnout of 75.6%, 74.9% and 87.1% respectively. These were demonstrations of massive public confidence in the electoral process under neutral, temporary regimes.  

In addition to throwing the country's political arena into long-term turmoil, the Awami League brought the courts into a political fight. 

The modality of holding elections is essentially a political issue, which was addressed and resolved politically in 1996. But it appeared that the AL, in order to "justify" what they undoubtedly knew to be a wholly unjustifiable action, hid behind the courts. They chose to fire their gun from the shoulders of the judiciary. 

It was then the BNP's turn to take to the streets and boycott the polls of 2014 and 2024 to demand restoration of the caretaker system. How ironic then, that within the space of 15 years, the AL emerged as the villain in the caretaker debate, while the BNP came forward as its champion. 

Warnings from history

The BNP did take part in the 2018 elections, but widespread vote fraud by the Awami League convinced the public at large that an election under a partisan government was not worth voting in. After 2018, all elections — national or local — lost all appeal for the public. 

It was no less ironic that, while the AL justified its political action by citing a legal judgement by the Supreme Court, it was the same court that restored the caretaker system. 

While delivering its verdict, the High Court bench had observed on 17 December 2024 that the caretaker government system strengthens elections and democracy, thus making it part of the constitution's core framework. 

The last three elections under caretaker governments before its abolition — June 1996, 2001 and 2008 — had produced voter turnout of 75.6%, 74.9% and 87.1% respectively. These were demonstrations of massive public confidence in the electoral process under neutral, temporary regimes.

In other words, it is not strictly a legal matter. It is an aspirational issue. People aspire to democracy. Free and fair elections are the foundation of a democratic society. In the context of Bangladesh, such free and fair elections can only be ensured when non-partisan people with no stake in the outcome are managing the polls.  

The court rulings, clearly, represent a triumph of popular will. 

However in Bangladesh, such tales of triumph of common sense, especially if it involves politics, politicians and winning or losing power, always come with a caution. History is replete with cautionary tales, warnings from what had passed before. 

The caretaker saga is a prime example of such a cautionary tale. 

When parliament passed the 13th Amendment to the Constitution on 26 March 1996, it appeared the country had turned a corner and removed a major obstacle to its journey towards becoming a functioning democracy. 

Revolutionary act

The Amendment provided for a non-partisan, caretaker government to oversee elections at the end of a government's five-year term. 

This was almost a revolutionary act. Through enactment of this law, politicians acknowledged that free and fair elections were not possible with politicians at the helm. They needed non-partisan men and women to take charge for three months to ensure credible elections, elections that would be above question, thus ensuring legitimate, stable governance for the following five years.  

But like so many "new dawns" through Bangladesh's history, this one proved to be a false one. 

First, the BNP, which had passed the Amendment in the first place, made an ill-judged move in 2005, raising the retirement age of Supreme Court judges to ensure Justice KM Hasan takes the helm of the next caretaker government. The then opposition parties led by AL waged a movement saying they would not accept KM Hasan as chief adviser, alleging he had been involved with BNP in the past. 

This move failed in the face of violent and bloody protests by the Awami League and its allies. But then the BNP-backed president, Iajuddin Ahmed declared himself Chief Adviser, making a total mockery of the non-partisan character of the caretaker system.   

Another blow was landed by the military which intervened on 11 January 2007 to force President Ahmed to vacate the Chief Adviser post and appoint former bureaucrat Fakhruddin Ahmed. The Army cited the dangers of violence spiralling out of control as the justification for its action, which became known as 1/11.  

Checks and balances

The "blow" came in the form of a state of emergency and postponement of the elections for two years. A caretaker government was meant to be in power just to organise elections in three months and leave. This one remained in office for two years.  

During these two years, the military-backed government acted without restraint, targeting politicians with corruption charges, manipulating the media and trying to break up major political parties. 

Top leaders Sheikh Hasina and Khaleda Zia were put in jail. Zia's son Tarique Rahman was imprisoned, tortured and sent to exile in the UK, where he remained for the next 17 years.     

Both the BNP's attempted manipulation and the Army's two-year long, highly controversial intervention suggest that the caretaker system, as designed in 1996, was not as robust as it should have been. 

There were not enough checks and balances to ensure a caretaker government was seen to be non-partisan with no ambition of its own. 

The caretaker government system was in need of reform to strengthen it, to make it manipulation-proof. But instead, Hasina removed the one mechanism that could prevent a party from entrenching itself in power. 

After her landslide victory in the 2008 polls, Sheikh Hasina probably thought the system was discredited enough to be discarded. But despite its flaws, the caretaker government system retained widespread public support, and its replacement, unsurprisingly, turned out to be far worse. 

Legal status not enough

The challenge to the 15th Amendment was lodged within weeks of the overthrow of the Awami League government in a popular uprising on 5 August 2024. The petitioners who filed the writ had sought the annulment of the 15th Amendment in its entirety. 

The High Court, however, partially upheld the writ. The Supreme Court concurred with the High Court. Most of the Amendment's 54 provisions were left untouched. 

In its ruling, the Court annulled section 7B which had made large chunks of the Constitution "unamendable". This paves the way for parliament to carry out future changes. 

While much of the 15th Amendment will now be in the purview of the parliament to debate and decide, the critical matter of elections under a non-partisan caretaker has been resolved, once again. 

However, as experience has shown, the resilience of any reform in Bangladesh is not dependent on its legal or constitutional status. 

Only diligent adherence to democratic norms and practices by all parties, especially those in power, can ensure a constitutional provision takes root. 

Only when political and non-political players are able to resist the temptation to manipulate the system, to bend the rules to give themselves an unfair advantage, would we begin to see the fruits of any reform, especially those that affect routes to power. 

The writer is a journalist and podcaster. He can be contacted at: sabir.mustafa@gmail.com. His X handle is @Sabir59. 

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.