Election times are quintessentially interesting, more so when some of the South Asian countries are involved. The element of unpredictability and host of other varied considerations surrounding any election in the region, makes these events an analysts delight to piece together the various issues and possibilitiesand come up with plausible answers. In the context of elections in Bangladesh, added confusion arises out of the long list of unresolvable issues including demand for holding elections under caretaker governments.
The ‘caretaker government’ phenomenon has been happening in Pakistan for some years and its import and impact could be a separate subject of discussion. Briefly, it may be mentioned here that the model of caretaker government in Pakistan to conduct national and provincial elections, backed by constitutional provisions, has become the accepted norm in that country. Even this time around, for the national and provincial elections due to be held on July 25, 2018, interim governments are already in position. The six member caretaker cabinet headed by a retired Supreme Court Chief Justice will hold office until a new government is ushered in through the general election scheduled for July 25, 2018. Similar arrangements have been put in place in the provinces as well. There were the usual differences of views between the main political parties on inclusion of some names in the caretaker governments, but the Election commission managed to resolve these in good time. (For detailed brief on the system obtaining in Pakistan, please see a Report by Democracy Reporting International (DRI) — a non-profit organisation that claims to promote political participation of citizens, accountability of state bodies and the development of democratic institutions worldwide — Pakistan is the only democratic country which adopts this method of preparing for elections.)
In a very limited manner and in an entirely different context, it happened in Nepal too when elections to the 2nd Constituent Assembly (CA) in 2013 was conducted under a government headed by the then serving Chief Justice of the Supreme Court, Khil Raj Regmi. Under a presidential order, Regmi was designated as the caretaker prime minister from March 2013 to February 2014, to hold elections to CA-II. The decision led to a debate, at least theoretically, that any appeal against the actions taken by the caretaker government would have gone back to the very court whose presiding officer had taken the original action as head of an interim government! Fortunately that did not happen. CA-II was duly constituted, it gave the country a new constitution and the next country wide elections at all levels were held by the government in position, turning itself into the usual caretaking mode.1
As far as Bangladesh is concerned, the demand for holding of elections under caretaker government (CG) goes back to 1991 when the then president, Gen. Ershad gave in to the opposition demand and it resulted in a fairly successful parliamentary elections that year, marking the country’s return to multi-party democracy. Bangladesh Nationalist Party (BNP) won that elections and formed the government under Khaleda Zia’s leadership.
Later in 1996, the CG system was legally introduced in the country but not without its share of controversy as is the norm in that country’s intensely fractured polity. Post-completion of its 1991-96 term, the BNP government held a very one sided election in Feb 1996 that was widely boycotted by most opposition parties including the Awami League (AL) on grounds of elections being unacceptable without a CG. Once again the sharp polarisation and deep mistrust amongst the political parties brought the nation to a virtual halt. Virtually all the opposition parties including the Awami League, Ershad’s own Jatiya Party and Jamaat-I-Islami refused to accept the election results. The mounting political crisis forced Prime Minister Khaleda to announce another election within four months after bringing in the CG system through the 13th constitutional amendment just before the seventh Jatiyo Sangshad (JS) elections. This time around, the Awami League won the 1996 elections under the CG system.
The core mandate for the CG consisting of a Chief Adviser, along with ten other advisers, was to assist the Election Commission in holding free and fair elections. Post-completion of its five year term, the elected government was required to demit office with the last retired Chief Justice of the Supreme Court forming the CG as its head within fifteen days of dissolution of the parliament with a group of specialists chosen through a process of consensus. This neutral body was to hold office for a maximum period of 90 days within which the elections had to be held. The neutrality of the CG was thus a clear criterion.
The CG system proved to be a stablising factor and periodic elections thereafter in Bangladesh were held without much controversy, until the 2006 October imbroglio. The blatant maneuvering of the then CG, the Election Commission, the voters’ list, by the BNP government prior to the elections scheduled for late 2006 led the nation into another period of political instability and uncertainty. The main contentious issue then was the sudden decision of the BNP government to enhance the retirement age of Supreme Court judges from 65 to 67 years that essentially enabled Justice KM Hasan to later become the Chief Advisor as the last retired Chief Justice when the Khaleda government completed its term in October 2006. His neutrality was understandably questioned as Hasan was known to be a BNP supporter.
With BNP government in no mood to discuss or negotiate with the opposition parties, the nomination of Justice Hasan as the Chief Adviser, President Iajuddin himself assumed the office of Chief Adviser in October 2006. This unprecedented step led to further violence and strife that eventually led to the installation of another CG led by Fakhruddin Ahmed, a well-known economist in January 2007.
However, given the volatile ground situation and limited mandate of the CG, the military had to step in to maintain law and order. Military rule continued from behind the scene till the holding of elections in 2008. This was largely possible as CG decided to prolong its presence by overstaying beyond three months to ensure conducive atmosphere for holding of elections. Since electoral reforms and a transparent electoral process could not be possible in the limited period, CG announced in July 2006 that the JS elections could only be held by December 2008. Those two years (2006-08) were tumultuous to say the least, but it all finally came around with Sheikh Hasina receiving the largest mandate ever in the December 2008 elections and forming the government led by the Awami League.
There was a hope that the CG system, backed by a duly enacted constitutional amendment had come to stay but this hope was short lived. In May 2011 in a writ petition challenging the principle of system of CG, the Supreme Court overturned the 13th Amendment thereby nullifying the constitutional validity of the CG system. It also ruled that the system may remain in practice for next two JS elections for the sake of ‘safety of the state and its people’. However, within a month of that verdict, in June 2011, the JS adopted Constitution 15th Amendment Bill, entirely abolishing the CG system as established under the 13th Amendment.
Thus, the Awami League government decided to go ahead with 2014 election without the CG system. As expected, the opposition led by BNP decided to boycott the elections on the ground that free and fair multiparty election was not possible without the CG system in operation. The ruling party argued that the 13th Amendment providing for elections under the CG system had been struck down by the Supreme Court and replaced by the 15th Amendment and therefore there was no legal requirement for the government in office to resign and elections to be held under the CG system. As a result of the opposition boycott, the ruling Awami League secured an overwhelming majority of over 230 seats, 153 of which came uncontested. Not surprisingly, Bangladesh which usually witnesses huge voters turn out in fact reaching a high of 87% during the 2008 elections, could barely muster 30% turnout, which could also be due to a large number of seats going uncontested.
In January this year (2018) on its completion of four years in office, Prime Minister Sheikh Hasina, a year in advance, announced that elections for the next JS will be held by the end of 2018 ‘as per the Constitution’, and ‘..an election-time government …. which will provide all-out cooperation to the Election Commission to conduct the election’.2 The election dates are yet to be announced although Sheikh Hasina has begun her election campaign. There is no clarification yet on what PM Hasina meant by ‘election time government’. While opposition BNP has been persistent in its demand for CG, it has not yet taken the extreme position of once again boycotting the elections if not held under the CG system. The BNP General Secretary has lately confirmed their interest to join the election to the 11th JS although they continue to express their reservation about the present Election Commission. 3
The ground situation seems more complex than it appears on the surface. Perhaps in keeping with the court ruling, PM Hasina has announced for an ‘election time government.’ One will have to wait and see what form that will come under. Arguably, there is limited scope to question the legal validity of the government position on holding the next parliamentary election under a CG system, yet, it argued by some that given Bangladesh’s deeply fractured polity, the issue needs to be contextualised better. The largest opposition party BNP is facing leadership crisis of sorts with its undisputed leader Begum Khaleda Zia in jail. BNP’s acting Chairman, her son Tarique Rahman, too is absent, living in self-imposed exile in London to evade legal processes back home. The party’s political health seems to be in question with no prominent second rung leader having been groomed to shoulder the kind of challenges now confronted by the party.
It is therefore not surprising that the opposition has maintained its demand for a neutral interim administration to ensure free. Fair and participative election. For BNP the issue is credibility rather than technicality of the process involved. The situation demands of the two main parties to move away from the path of confrontation by establishing a quiet mechanism of dialogue to bridge the trust deficit. They will have to do it themselves rather than look for outside help to break the impasse, sooner the better. Analysts believe that no party, certainly not the main ones, has the option not to contest the elections. Both the Awami League and BNP have followed the confrontational approach in the past and should have learnt from their respective experiences. It is hoped that they will get their act together in the limited time available and ensure that in the end democracy comes out as the real winner.
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