In 2001, the first Awami League government of Prime Minister Sheikh Hasina successfully ensured the peaceful transfer of power to a caretaker government under the terms of the constitution. The caretaker system was inserted into the constitution in 1996 after months of Awami League-led protests which forced the then BNP government to cave in.
In sharp contrast to the Awami League, the BNP led by Khaleda Zia initially refused to accept the caretaker system in 1996 and then subverted the legal provisions of the system in 2006, which irreparably damaged the political legitimacy of the caretaker system.
The problem began in October 2006, when the BNP subverted constitutional provisions to install the aging and frail President Iajuddin Ahmed as head of the caretaker government. Several provisions were superseded, including provisions on appointing Supreme Court judges and eminent citizens.
Iajuddin's failure led to the declaration of a state of emergency and a two-year caretaker regime, which was unprecedented and became the longest caretaker regime in recent times. Fundamental rights were suspended. A draconian crackdown was launched against politicians, businesspeople, and journalists, with reports of torture and disappearances. The suspension of fundamental rights led to an uprising in Dhaka University, which was met with curfews.
The last caretaker regime in 2007 and 2008 went beyond its constitutional mandate. It was supposed to hold a general election within a 90-day timeframe, in line with the letter and spirit of the constitution. That would have been the most logical outcome from the standpoint of democratic continuity.
At the time, legal experts opined that “the most important constitutional question is whether a legitimate election can be held beyond the stipulated time of the constitution.” One Supreme Court lawyer wrote in a national daily that “it must be held that the holding of the general election cannot be deferred beyond the period stipulated in Art. 123 (3).”
For example, Article 123 (3) in the current text of the constitution in light of the 15th amendment calls for elections to be held within 90 days preceding the expiry of parliament's term, or within 90 days following a potential dissolution of parliament by the president. The binding nature of the 90-day timeframe is reinforced by a constitutional tradition of holding elections within 90 days.
Instead of holding the election within a 90-day timeframe, the unelected caretaker regime postponed elections for two years. The national election was finally held in 2008 after a delay of two years, which resulted in an overwhelming victory for the Awami League.
Awami League president Sheikh Hasina was a stern critic of the delay in holding elections. She repeatedly called on the caretakers to hold elections within a 90-day timeframe. Indeed, caretaker periods in Australia, Bhutan, Pakistan, and Greece lasted for only a few weeks.
The last caretaker regime arguably went beyond its constitutional mandate by staying in power for an unprecedented two years. This had seriously dented the political legitimacy of the caretaker system, especially in the eyes of the Awami League. Human rights abuses during the caretaker regime were suffered by all political groups and contributed to a loss of legitimacy.
Today, the BNP's call for an election-time government is ambiguous and devoid of any safeguards to ensure the peaceful transfer of power. The BNP has not given any details of what it expects from an election-time government, except for their wish to see Prime Minister Sheikh Hasina resign.
Through the 15th amendment, the Awami League has shut down the loopholes for illegal, unconstitutional, and extra-judicial interventions. Despite facing criticism, the Awami League has acted in the greater long-term interest of consolidating civilian supremacy.
The BNP's demand for an election-time government may likely lead to another bout of undemocratic and unconstitutional rule, which can potentially subject Bangladesh to crippling international sanctions that can adversely affect our economy and way of life.
Umran Chowdhury works in the legal field.
