Elections in “Democratic” Bangladesh

M. Jashim Ali Chowdhury

Book Chapter in Mark Tushnet and Madhav Khosla (ed), Unstable Constitutionalism: Law and Politics in South Asia, Cambridge University Press, 2015, pp 192-229

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INTRODUCTION

Since its emergence in 1971, Bangladesh has become one of the world’s busiest constitutional laboratories [1]. Compared with its South Asian neighbors, Bangladesh is exceptional in its ethnic, cultural, and linguistic homogeneity among its people and its territorial proximity among the different units of its administration. At independence, Bangladesh carried the historical burden of Pakistani rule involving a civil–military bureaucracy and a non-representative technocracy [2]. As a result, there was consensus for the adoption of a form of representative government modeled on the Westminster parliamentary model and for a constitution that enshrined core liberal-democratic values [3]. Yet, there also were disadvantages rooted in the same historical legacy. Communal politics and the partition of British India led to Bangladesh’s separation from West Bengal (India) and its accession to Pakistan. The 1971 conflict – essentially economic, political, linguistic, and cultural in nature but purposefully projected as religious – culminated in secession from Pakistan.4 Pakistani rule in Bangladesh ended in genocide but Pakistan’s communalization of its identity

Footnotes

[1]. Aleem Al Razee, Constitutional Glimpses of Martial Law (Dhaka: University Press Ltd., 1982), 24–6.

[2]. Talukder Maniruzzaman (1967), “National Integration and Political Development in Pak- istan,” Asian Survey 7 (12): 880. Available at http://jstor.org/stable/2642531 (accessed July 25, 2013). See also Rounaq Jahan, Pakistan: Failure in National Integration (Dhaka: University Press Ltd., 1994), 139–40.

[3]. Abul Fazl Huq (1973), “Constitution Making in Bangladesh,” Pacific Affairs 46 (1): 59. Available at http://jstor.org/stable/2756227 (accessed February 28, 2013).

[4]. Rehman Sobhan (2006), “Identity and Inclusion in the Construction of a Democratic Society in Bangladesh,” Journal of the Asiatic Society of Bangladesh (Humanities), 51 (2): 155–77. Available at http://asiaticsociety.org.bd/journals.htm (accessed July 14, 2013).

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continues to haunt the society and politics of Bangladesh today. So deep is the division between religious antagonists and secular liberals that elections result in not only the winner taking all but also in the loser being put to a Darwinian test of survival. Elections matter in any democracy; however, given the degree of polarization and the consequences of defeat, they matter even more in Bangladesh. Major political forces today, therefore, are left with no option other than entering and remaining in office, at whatever cost and with whatever steps doing so might entail.

Constitutionalism often is regarded as a doctrine of political legitimacy. Constitutionalism prima facie requires justification of state actions against a higher law. At its core, this higher law is meant to structure the political process. Yet, as a concept, constitutionalism involves more than mere legality; it aims to posit a wider and deeper criterion of good governance as well as political conventions and norms to be attained in the collective life of a nation. The experiences of novice and volatile democracies, including Bangladesh, provide enough lessons to see that actions taken with apparent legal authority could still trouble constitutional sentiments. Viewed from this perspective, the current political norms and institutional practices of Bangladesh suggest that it has far to go before it can achieve the goals of modern constitutionalism. From the number of tests to determine whether a country can be said to practice constitutionalism, let us explore the first and most fundamental one:  the existence of a free, fair, and periodic competition for government power and positions. [5]

The first two decades (1971–1990) of Bangladesh’s political life were marked by frequent restlessness in military bastions, rigged elections, paralyzed leg- islatures, and executive omnipotence. [6] Although the recovery from military autocracy through the mass upsurge of 1990 provided hope for democracy and the rule of law, Bangladesh’s actual progress in consolidating democratic institutions remains a matter of debate. Constitutional governance in Bangladesh has gained a certain degree of stability since then, [7] but much also has been lost during this ‘work-in-progress’ [8] period. The past two decades (1990–2010) well

Footnotes

[5]. Stanley De Smith and Rodney Brazier, Constitutional and Administrative Law (New York: Penguin Books, 1998), 17–18.

[6]. Muhammad A. Hakim, “Parliamentary Politics in Bangladesh in the 1990s: Consensus and Conflict,” in Md. Mahfuzul Huq (ed.), Thirty Years of Bangladesh Politics (Dhaka: University Press Limited, 2004), 103.

[7]. A. K. M. Atiqur Rahman and Manzur Alam Tipu, Understanding Reform: The Case of Bangladesh. Available at gdnet.org/global research projects/understanding reform/country studies/draft studies/bangladesh draft.pdf (accessed March 15, 2013).

[8]. Gouhar Rizvi, Democracy & Constitutionalism in South Asia: The Bangladesh Experience (Harvard University: The Ash Center for Democratic Governance and Innovation). Available at innovations.harvard.edu/showdoc.html/id=8644&p=1 (accessed October 12, 2012).

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may be characterized as a phase of ‘illiberal democracy’ that resulted in an elected dictatorship of the ruling premier [9]. Historically, the politics of elections has been a matter of central importance in Bangladesh’s national discourse. Although the liberation movement of Bangladesh derived its democratic legitimacy from comparatively free and fair elections of 1954 [10] and 1970, [11] the fairness of elections has remained a concern. In response, a sui generis system of ‘caretaker government’ was established in the mid-1990s to break through the vicious cycle of rigged elections [12]. Yet, as discussed in this chapter, the remedy proved to be as bad as the disease, damaging the credibility of both the Election Commission and the higher judiciary. Although the system of judge-led caretaker government generated substantial interest in constitutional discourse, [13] the experiment failed due to both the inevitable inconsistencies lurking within the system and the predictable drawbacks within local politics. As a consequence, the Constitution (Fifteenth Amendment) Act of 2011 eliminated caretaker governments and returned electoral responsibility to the original custodian (i.e., the Election Commission). This action has generated its own difficulties and the fear of another constitutional breakdown in the future. Against these developments, this chapter reflects on election law and politics in Bangladesh. It begins with a brief overview of the constitutional system of Bangladesh, followed by an exploration of the responsibility, power, and capacity of the Election Commission. A short narrative of the elections held under different political governments in independent Bangladesh is provided. The focus then turns to the mid-1990 model of a caretaker government and the problems that led to its inevitable but allegedly premature demise. The discussion that follows sheds light on the damaging impact that this model has had on the judiciary, which has resulted in support for the possible adoption of a legislature-led interim government for the election period (i.e., an

Footnotes

[9]. Rounaq Jahan, “Bangladesh at a Crossroad.” Paper presented at Experiments with Democracy: A Symposium on the Asian Experience with Democracy (New Delhi, India: August 2007). Available at india-seminar.com/2007/576/576 rounaq jahan.htm (accessed July 29, 2013). The term illiberal democracy is borrowed from Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: Norton, 2003), 89–118.

[10]. The election of the provincial legislature in 1954 gave the Bangalees the first chance of self- governance within the framework of united Pakistan.

[11]. The election of the provincial and national assemblies of 1970 emerged as the referendum of the independence of Bangladesh. The victorious political party, the Awami League, led the nation to independence in 1971.

[12]. For an in-depth analysis of electoral corruption in Bangladesh, see M. Y. Akhter, Electoral Corruption in Bangladesh (Farnham: Ashgate Publishing Ltd., 2001).

[13]. A. N. W. Waheeduzzaman, “Caretaker Government: Round Three,” The Daily Star, January 28, 2007.

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arrangement complementary to the empowerment of the Election Commission as the primary bearer of election responsibilities).

Bangladesh’s extraordinary experience with caretaker governments should contribute to the growing body of literature surrounding what Pildes called ‘the constitutionalization of democratic politics’[14]. Countries around the world – democracies old and new – are wrestling with the appropriate devices that constitutional law may employ to fashion democratic institutions and shape the democratic process. Whereas in mature democracies, such debates might involve details such as delimitation and the technical details of campaign finance, in younger democracies such as Bangladesh, the central question remains an elementary one: How can a free and fair electoral process be ensured? The answer to this question has played out rather strikingly in Bangladesh, illustrating how even a well-written constitution operating within a volatile body politic without deeply embedded democratic norms results in constitutional instability.

THE CONSTITUTIONAL FRAMEWORK

Bangladesh started its constitutional journey with a formal Proclamation of Independence. The representatives of the people of Bangladesh, elected in the December 1970 election of erstwhile East Pakistan, formed a Constituent Assembly on April 10, 1971, and officially proclaimed the independence of Bangladesh. As a wartime arrangement, the Proclamation devised a presidential form of government. The executive and legislative powers of the Republic and supreme command of the armed forces were vested in the president. The president would appoint a prime minister and Cabinet to oversee executive affairs. The president could levy taxes and authorize expenditures. He also would summon and adjourn the Constituent Assembly and ‘do all other things that may be necessary to give the people of Bangladesh an orderly and just Government’. [15] Bangabandhu Sheikh Mujibur Rahman, the leader of the

Footnotes

[14].  Richard H. Pildes (2004), “Foreword: The Constitutionalization of Democratic Politics,” 118 Harvard Law Review 28.

[15]. The Proclamation of Independence of 1971, the Seventh Schedule of the Constitution of Bangladesh. The Proclamation settled the number of seats in the Constituent Assembly at 469 (i.e., 169 members elected to the National Assembly and 300 members elected to the Provincial Assembly in the 1970 election). By 1972, however, there were changes in the landscape. The Bangladesh Constituent Assembly Order 1972 (President’s Order No. XXII of 1972) resettled the number at 430 because 10 members had died (5 were killed by the Pakistan Army in 1971); 23 members lost their seat by being expelled from their party, the Awami League; 2 were disqualified for declaring allegiance to Pakistan after the war; and 4 others were imprisoned for collaboration with the Pakistan Army during the liberation war.

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liberation movement who was held captive in West Pakistan, was the appointed president. In his absence, the powers and functions of the presidency were discharged by Syed Nazrul Islam, the acting president.

After the liberation war ended on December 16, 1971, Bangabandhu Sheikh Mujibur Rahman was released from his Pakistani jail. He returned to his independent homeland, Bangladesh, on January 10, 1972. On January 11, 1972, the president – in exercise of his power to give Bangladesh ‘an orderly and just government’ – promulgated the Provisional Constitution of Bangladesh Order of 1972. Through this Provisional Constitution, the system of government was transformed into a quasi-parliamentary system, in the sense that the Cabinet would be headed by a prime minister who was a member and leader of the majority party of the Constituent Assembly. The president, however, assumed the role of symbolic head of the state who, in exercise of his powers, would act in accordance with the advice of the prime minister. [16] Subject to this advice, the legislative power remained with the president. After promulgation of the Provisional Constitution Order, Bangabandhu resigned from the presidency and as leader of the majority party in the Constituent Assembly and assumed the post of prime minister. Justice Abu Sayeed Chowdhury, a former Judge of the Dhaka High Court, was appointed the new president. The Constitution of Bangladesh was formally adopted in the Constituent Assembly on November 4, 1972, and came into force on December 16, 1972.[17]

The 1972 Constitution adopted a parliamentary system with various checks and balances. The president assumed a symbolic role similar to the British monarch. Executive power was vested in the prime minister, [18] legislative power in the parliament,[19] and judicial power in the Supreme Court and subordinate courts [20]. Internal proceedings of the parliament were protected from judicial inquiry [21]. The Court would not issue a mandamus to parliament to enact or repeal any legislation [22]. Parliament, in turn, would refrain from debating any ‘issue or question that may contain any reflection on a decision of a court

Footnotes

[16]. Articles 5 and 8 of the Provisional Constitution of Bangladesh Order 1972. See also M. Shah Alam, Constitutional History of Bangladesh and An Easy Reader into the Constitution (in Bangla) (Chittagong: University of Chittagong, 1996), 17–19.

[17]. In the meantime, the president, on the advice of the prime minister, issued a total of 202 presidential orders that were varied and catholic in scope and content, and may be said to have laid the foundation of the new legal order in Bangladesh. See Justice Mustafa Kamal, Bangladesh Constitution: Trends and Issues (Dhaka: University of Dhaka, 1994), 6.

[18]. The Constitution of the People’s Republic of Bangladesh, Article 55(2).

[19]. Ibid., Article 65(2).

[20]. Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111, para. 71.

[21]. Supra note 18, Article 78.

[22]. Sheikh Abdus Sabur v. Returning Officer, 41 DLR (AD) (1989), 30.

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of law or is likely to prejudice a matter sub judice’.[23] The prime minister and his Cabinet remained collectively responsible to parliament, which could dismiss a government by initiating and passing a no-confidence motion.[24] Subject to the prime minister’s recommendation,[25] the president appointed the attorney general,[26] the chief justice and judges of the Supreme Court,[27] the Chief Election Commissioner (CEC) and other election commissioners,[28] the comptroller and auditor-general,[29] and the chairman and other members of the Public Service Commission.[30] The president was subject to impeachment by the parliament on constitutionally listed grounds.[31] Judicial review was provided in Article 102 of the constitution. Any deviation from constitutional arrangements through legislative or executive action would attract judicial intervention as the ‘guardian of the constitution’[32] under the authority of Article 7 in the clause providing for ‘supremacy of the constitution’.[33]

It is important to note that the constitutional-supremacy clause has been used by the Supreme Court of Bangladesh to review constitutional amendments.[34] The Court held that the terms ‘any other law’ and ‘that other law’ in Article 7, which relate to the definition of ‘law’ in Article 152(1), include constitutional amendments.[35] The Supreme Court of Bangladesh also adopted the celebrated ‘basic-structure doctrine’ enunciated by the Indian Supreme Court in Kesavananda Bharati v. State of Kerala.[36] Through this doctrine,

Footnotes

[23]. Rule 53 (xx) of the Rules of Procedure of Parliament.

[24]. Supra note 18, Articles 55(3) and 57(2).

[25]. Article 48(3) provides that except for appointing the prime minister pursuant to Clause (3) of Article 56 and the Chief Justice pursuant to Clause (1) of Article 95, the president always acts in accordance with the advice of the prime minister. The proviso to Article 48(3) states that whether any and, if so, what advice has been tendered by the prime minister to the president shall not be questioned in any court.

[26]. Supra note 18, Article 64(1).

[27].  Ibid., Article 95(1).

[28]. Ibid., Article 118(1).

[29]. Ibid., Article 127(1).

[30]. Ibid., Article 138(1).

[31]. Ibid., Articles 52 and 53.

[32]. Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (AD) (Spl) 1.

[33]. Supra note 18, Article 7.

[34]. M. Jafar Ullah Talukder and M. Jashim Ali Chowdhury (2008), “Determining the Province of Judicial Review: A Re-evaluation,” Metropolitan University Journal, 2 (2): 162.

[35]. Per Mustafa Kamal J., in Kudrat-e-Elahi v. Bangladesh, 44 DLR (AD) 319, para. 84; Bangladesh Italian Marble Works Ltd.v. Bangladesh, 14 BLT (HCD) (Spl) 1, p. 54.

[36]. (1973) 4 SCC 225; Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (AD) (Spl) 1. For an excellent exploration into the doctrine of basic structure, see Pratap Bhanu Mehta, “India’s Living Constitution: Ideas, Practices, Controversies,” in Zoya Hasan, E. Sridharan, and R. Sudarshan (eds.), The Inner Conflict of Constitutionalism: Judicial Review and the Basic Struc- ture (Delhi: Oxford University Press, 2002), 99–148.

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almost every constitutional amendment has been reviewed judicially to exam- ine whether they violate the fundamental pillars of the constitution. [37]

The year 1975 marked a dramatic change in the constitutional setup. The adversarial multiparty system was thought to be unsuitable for a war- ravaged Bangladesh. The president sought the highest possible concentration of authority. The first parliament established under the 1972 Constitution passed the Constitution (Fourth Amendment) Act of 1975 and replaced the parliamentary system with a one-party presidential system. Within seven months of introducing the change, however, Bangabandhu Sheikh Mujibur Rahman, the country’s founder, was assassinated by pro-Pakistani elements in the army. The experiment with a one-party presidential system in Bangladesh was thereby ‘nipped in the bud’. Different civil-cum-military or purely military governments of 1976–1990 continued the presidential system. The one-party system was publicly condemned, on the one hand, whereas the presidential omnipotence created by the system was continued and consolidated on the other. Article 92A was added to the constitution to make the parliament subservient to the president for all practical purposes.[38] Under the new arrangement, if the parliament failed to make grants, to pass the annual budget, or re- fused or reduced the demand for grants, the president – without concern about funds – could dissolve parliament. Although the one-party political system was abolished, prolonged military rule under martial-law proclamations and the

Footnotes

[37]. In fact, judicial review of constitutional amendments has become a regular practice in Bangladesh. The Eighth Amendment was challenged in Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1. The Tenth Amendment was challenged in Dr. Ahmed Hossain v. Bangladesh, 44 DLR (1992) (AD) 109 and in Fazle Rabbi v. Election Commission, 44 DLR (HCD) (1992) 14. The Fifth Amendment was challenged in Bangladesh Italian Marble Works Ltd. v. Bangladesh, 14 BLT (HCD) (2005) (Spl) 1. The Thirteenth Amendment was challenged first in Mashiur Rahman v. Bangladesh, 17 BLD (HCD) (1997) 55, and second in M. Saleem Ullah v. Bangladesh, 57 DLR (HCD) (2005) 171. The Fourteenth Amendment was challenged in Fardia Akter and Two Others v. Bangladesh, 11 MLR (2006) (AD) 237. The Seventh Amend- ment was challenged in Siddique Ahmed v. Bangladesh, (2010) (HCD). All of these challenges were decided on the merits, and objections on attempted judicial review invariably were negated.

[38]. The Second Proclamation (Fifteenth Amendment) Order of 1978 (i.e., Second Proclamation Order No. IV of 1978). Changing, amending, rewriting, or even suspending the whole or parts of the constitution through proclamations started with the Martial Law Proclamation of August 16, 1975. This was the act of Khandker Mushtaq Ahmed usurping the presidency after the assassination of Bangabandhu Sheikh Mujib on August 15, 1975. Justice A. S. M. Sayem, taking the baton from Mushtaq, and Major General Ziaur Rahman, succeeding Sayem, continued amending the constitution through orders and proclamations. All of the orders and proclamations were endorsed as a package by the servile parliament through the Constitution (Fifth Amendment) Act of 1979. As mentioned previously, the Fifth Amendment did not pass the juridical test of constitutionality and the Supreme Court invalidated the amendment.

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occasional revival of multiparty democracy with ‘rubber-stamp’ parliaments under the lead of state-sponsored ‘kings’ parties’ remained the hallmark of this period.

It was not until 1991 that Bangladesh completed a ‘full constitutional cycle’.[39] After the fall of military ruler H. M. Ershad in December 1990, the Constitution (Twelfth Amendment) Act was passed on August 6, 1991. It removed presiden- tial omnipotence – the most important remnant of the Fourth Amendment – from the constitution. Parliamentary democracy returned with the president as symbolic head and the prime minister as chief executive with accountability to the legislature. The original constitutional arrangement of 1972 thereby was restored. This clear choice amplified the necessity of holding free and fair elections to the parliament and impartial supervision of those elections. One method of supervision, the Thirteenth Amendment Act of 1996, introduced caretaker governments – the focus of this chapter – for electoral administration. The powers and responsibilities constitutionally vested in the Election Commission must be understood before understanding the unique system of caretaker governments.

THE ELECTION COMMISSION

The Election Commission as the primary duty bearer for holding free and fair elections never received the attention it deserved in the 1990s. The key issue of the Commission’s capacity was sidelined by political urgency of the groups that preferred temporary remedies for unfair electoral practices. Nevertheless, the constitution gives a remarkable amount of attention to the Election Commission.

The Election Commission of Bangladesh is entrusted with the principal duty of holding elections to the presidency, Jatya Sangsad (i.e., parliament), and various other local government bodies including the Union Council and the Municipal and City Corporations. The Election Commission is empowered to superintend, direct, and control the preparation of electoral rolls; the holding of elections; and the delimitation of electoral constituencies. [40] The range of responsibilities that the Commission is required to discharge – including the appointment and control of returning officers, the approval of the electoral code of conduct, the formation of inquiry committees, and the

Footnotes

[39]. Syed Ishtiaq Ahmed (1992), “Constitution and Democracy in Bangladesh since 1972,” Dhaka Law Reports Journal, 44: 52.

[40]. Supra note 18, Article 119.

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regulation of political parties – is addressed in detail in the Representation of the People Order of 1972. [41]

For the meaningful discharge of these major responsibilities, substantial power has been entrusted to the Election Commission. It can assign and with- draw electoral duties, [42] constitute inquiry committees, [43] summon and compel the production of evidence, require public records, decide electoral disputes, [44] issue commissions for the examination of witnesses and documents, [45] regu- late the transfer of judicial and executive officers on election days, [46] cancel candidacies, [47] make rules, [48] and regulate its own procedure. [49] The most open- ended mandate of the Election Commission in conducting the election ‘honestly, justly, and fairly’ is in Article 119(2) of the constitution.[50] In the exercise of this power on various occasions, the Election Commission has filled the vacuum of law, [51] ordered repolling, [52] and upheld or rejected candidacies. [53]

The Constitution of Bangladesh, along with the Representation of the People Order of 1972, has taken care of the institutional, budgetary, and functional independence of the Election Commission. The constitutional guarantee of functional independence has been reinforced by the imposition of a corresponding burden on the executive authorities ‘to assist the Commission’.[54] In their case, the Election Commissioners’ five-year guaranteed tenure in office [55] has been secured by a procedural requirement to follow the manner and grounds ‘for removal of a Judge of the Supreme Court’. [56] Article 118(3) of

Footnotes

[41]. The Representation of the People Order of 1972, Articles 11, 28(2), 91B(1), 91C, 90B(c), 91A(1),  90A, and 90H.

[42]. Ibid., Article 7(1), (5), and (6).

[43]. Bangabir Kader Siddiqui v. Bangladesh, 54 DLR (2002) (AD) 64.

[44]. Supra note 41, Article 53.

[45]. Ibid., Article 91D(1).

[46]. Ibid., Article 44E.

[47]. Ibid., Article 91E.

[48]. Ibid., Article 94.

[49]. Ibid., Article 91D(4).

[50]. Altaf Hussen v. Abul Kashem, 45 DLR (1993) (AD) 53, para. 11.

[51]. Abdul Momen Chowdhury v. Bangladesh W/P No. 2561 of 2005; full text of the judgment printed in Belal Husain Joy, Constitutional History of Bangladesh: Comments on Contemporary Political Crisis and Leading Case Laws (Dhaka: Bangladesh Law Book Company, 2008), 568.

[52]. Abdul Quader Farazi v. CEC and Ors, 4 MLR (1999) (HCD) 67; A. F. M. Shah Alam v. Mujibul Haq, 41 DLR (AD) (1989) 68; Selim Ullah Bahadur v. The Election Commission and Another, 11 BLD (HCD) 548; and Gulam Murshed v. Mustafizur Rahman, 10 BLD (AD) 21.

[53]. Afzal Hussain v. Chief Election Commissioner, 45 DLR (HCD) (1993) 255; Ataur Rahman v. EC, 15 BLC (2010) (HCD) 506.

[54]. Supra note 18, Articles 118(4) and 126.

[55]. Ibid., Article 118(3).

[56]. Ibid., proviso added to Article 118(5).

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the constitution attempted to immunize the Commission from career hope- fuls by prohibiting the appointment of a retired Election Commissioner to any other position in the service of the Republic. [57] Articles 88(b) and (c) make the administrative expenses and pay of officers and servants of the Election Commission a charge on the Consolidated Fund, which means that even the parliament may not propose amendments to vary the amount of any expenditure charged as remuneration for the Election Commissioners. Additionally, Section 7(1) of the Election Commission Secretariat Act of 2009 obliges the government to allocate money according to the requirements of the Election Commission. Although the government may ‘consider’ the requirement before granting the amount, the Election Commission does not necessarily need permission from the government for its spending. [58]

In line with the scheme of the original Constitution of 1972, a secretariat under the direct control of the Election Commission was established by the Rules of Business of the government. However, the military ruler H. M. Ershad brought the Election Commission secretariat under the office of the president by amending the Rules of Business in 1984. The independent Election Commission thereby was subjected to the direct control and interference of the political government; unfortunately, this continued even after the 1990 demo- cratic upsurge. Instead of making it independent, the Commission secretariat remained attached to the prime minister’s office. The secretary to the Election Commission was appointed on deputation from the prime minister’s office. The secretary remained accountable to the prime minister; in turn, others in the Commission secretariat remained accountable to the secretary, the administrative head of the Commission. Therefore, the system awkwardly placed the CEC and other commissioners at the top of an election administration that they did not govern. In 2008, the High Court Division in Kazi Mamunur Rashid v. Government of Bangladesh ordered the government to free the Election Commission from executive control.[59] Relying on Masder Hossain v. Secretary, Ministry of Finance [60] and Idrisur Rahman v. Shahidud- din Ahmend,[61] the Court ordered the government to frame rules for separating

Footnotes

[57]. Ibid., Article 118(3), Clauses (a) and (b).

[58]. The Election Commission Secretariat Act of 2009, Sections 7(2) and 16.

[59]. Kazi Mamunur Rashid v. Government of Bangladesh, 28 BLD (2008) (HCD) 87.

[60]. In Masder Hossain v. Secretary, Ministry of Finance, 18 BLD (HCD) 558, and Secretary, Ministry of Finance v. Masder Hossain, 52 DLR (1999) (AD) 82, the Supreme Court of Bangladesh issued mandamus on the government to have the president frame rules under his Article 115 power to separate the subordinate judiciary from the executive and establish a separate judicial service commission.

[61]. In Idrisur Rahman v. Shahiduddin Ahmend, 4 MLR (1999) (HCD) 199, the appointment of a Class I Executive Magistrate to the post of Chief Metropolitan Magistrate was challenged

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the Election Commission secretariat from the prime minister’s office. The Court held that, read together, Articles 118(4) and 126 of the constitution imposed a positive obligation on the government to strengthen the secretariat and allow it to function freely and independently.[62] The president then promulgated the Election Commission Secretariat Ordinance of 2008, which later became the Election Commission Secretariat Act of 2009. The 2009 Act provided that the Commission secretariat would not be under the administrative control or supervision of any ministry, department, or division of the government and that overall control of the secretariat would remain with the CEC.[63]

It is unfortunate that the constitutional scheme of an independent Election Commission has not been translated into a reality. The institutional prestige and stature of the Commission has been undermined by the tendency of those in power to conceive of it as a legitimizing institution that provides a means by which favorable political arrangements could be sustained.[64] Ruling parties have developed technical excuses to refuse the CEC’s salary when they do not support him.[65] Members of the Commission are seen in the corridors of on the grounds that before his appointment, the president did not consult the Supreme Court per Article 116 of the constitution. The government attorney argued before the Court that in the absence of a separate judicial service commission, the president was left with no mechanism whereby he could consult the Supreme Court. Holding the consultation a mandatory constitutional obligation, the Court observed: “If the fact is that the President could not consult the Supreme Court for want of mechanism, then the President, being authorized by Article 115 of the Constitution itself to frame rules to carry out the mandates, is required to take immediate steps for framing necessary Rules (para. 7).”

Footnotes 

[62]. Supra note 59, per Justice Mamnun Rahman, para. 24.

[63]. Supra note 58, Sections 3(2), 5(1), 6(2), and 14.

[64]. The disturbing trend, although it occasionally received judicial attention, has gone largely unchecked. Occasional enthusiasm on the part of the judiciary (see footnotes 65 and 66) has been outmoded at times by judicial indifference toward the executive tendency to interfere with the Commission’s activities (e.g., Bangabir Kader Siddiqui v. Bangladesh, 54 DLR (AD) 64, in which the Minsitry of Law’s acting contrary to the Commission’s requirement was condoned on trifling technical grounds) and also by the self-imposed inertia of the Commission itself in exploring the alternatives of capacity development. Therefore, although the celebrated Voter’s Right to Information judgment (Abdul Momen Chowdhury v. Bangladesh, (HCD) (2006) confirmed in Md. Abu Safa v. Abdul Momen Chowdhury and Others, 5 ADC (2008) 64) succeeded in creating an amendment in the Representation of the People Order of 1972 requiring the candidates to disclose eight kinds of information, it failed in empowering the voters with the disclosed information. Instead of showing an active interest in publicizing that information in the January 5, 2014, national election, the Commission removed it from its Web site when embarrassing reports on ruling-party candidates started appearing in national dailies.

[65]. In CECand Three Others v. Comptroller and Auditor General, 57 DLR 113, the Court, consisting of Justice A. B. M. Khairul Haque and Justice Md. Miftahuddin Chowdhury, condemned the initiative as an attack on the independence of the Commission (para. 31).

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the ministries to receive instructions from the executive.[66] The biggest threat to institutional independence remains the Commission’s composition. The posts of the CEC and other commissioners, like other constitutional posts, are filled by the president.[67] Because the president is to act on the advice of the prime minister, the political executive enjoys the sole privilege of appointment. Almost all appointments to the Election Commission until 2010 were overwhelmingly political. The experiences of 2006 were the worst. While the country was faced with serious doubts regarding the credibility and neutrality of the then-CEC, Justice M. A. Aziz, he decided to prepare a fresh electoral roll – a decision from which two other Election Commissioners dissented forcefully. Being outnumbered, Aziz refused to call a meeting of the Commission until the four-party alliance government appointed three more commissioners to ensure a majority for him. Simply stated, he packed the Election Commission. One of the new members was the secretary of the Election Commission, who had played a controversial role during the previous national election through which the Bangladesh Nationalist Party (BNP) government came to power and who was publicly condemned by the previous CEC, M. A. Sayeed.[68] The other two were retired Supreme Court judges with a strong bias toward the ruling party. Suddenly, the Election Commission became crowded with politically divided commissioners; discredited, all had to subsequently resign.

Thereafter, the Grand Alliance came to power and fixed the number of appointed Election Commissioners to a maximum of four.[69] Another important recent development has been the appointment of a search committee composed of the three senior-most judges of the Appellate Division to recommend names to the president for appointment to the Election Commission. The current Commission was formed through this process on an ad hoc basis and by the individual advice of the prime minister; therefore, it this does not legally institutionalize the process. In a country in which constitutional conventions hardly exist, there is every possibility of precedent being ignored by future governments. Furthermore, the appointment of Commission staff remains problematic. Constitutionally, the staff is appointed by the

Footnotes

[66]. In Masood R. Sobhan v. The Election Commission &ors, 28 BLD (HCD) 317, Justice Abdur Rashid openly condemned the visit of the then-CEC to the Secretariat of the government by quoting ‘Rule of Law and Supremacy of the Constitution shall remain in axioms in the Constitution unless the constitutional functionaries are seen respecting them and following them in their words and actions’ (para. 45).

[67]. Supra note 18, Article 118(1).

[68]. M. Sakawat Hussain, Electoral Reform in Bangladesh 1972–2008 (Dhaka: Palok Publishers, 2012), 63.

[69]. Supra note 18, Article 118(1), as amended by the Constitution (Fifteenth Amendment) Act of 2011, Section 35.

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president ‘as per the requirements of the Commission’.[70] The ‘requirement of the Commission’, however, must not be confused with an indication of its strength. It is, at best, a numerical requirement that the Election Commission places before the president. The Commission must draw a large staff from the civil administration, including those from law-enforcement agencies, and that administration usually remains within the control of the ruling party. Hence, this remains ‘the biggest problem’ of the Commission in conducting fair elections.[71] For this reason, there is little faith among opposition parties and others that the Election Commission alone, as currently structured, is institutionally capable to conduct a free and fair election. For them, some type of caretaker government composed of either Supreme Court judges or another nonpartisan body is the only possible option.

ELECTIONS IN BANGLADESH: A HISTORICAL OVERVIEW

Elections in Bangladesh commenced with the first election to parliament on March 7, 1973. The Awami League (AL), the party that led the nation toward independence, received a clear majority by securing 292 of the 300 seats. Although the result was not unexpected, concerns surfaced about the capacity of the Election Commission to conduct free and fair elections.[72] There were allegations that ruling-party hopefuls had exceeded limits, capturing polling centers and driving the opposition out of polling booths. [73] There was a ‘sea change’ in the political landscape of Bangladesh in the next few years. The Father of the Nation, Bangabandhu Sheikh Mujibur Rahman, was brutally killed on August 15, 1975. Khondkar Mustaq Ahmed usurped the presidency, suspended the constitution, and imposed martial law. Three months later, he was forced to abdicate in the face of a counter coup. The then-Chief Justice of Bangladesh, A. S. M. Sayem, took charge of the presidency and martial-law administration. Subsequently, Major Ziaur Rahman, the then-Chief of Army Staff, took office as president on April 20, 1977, because of the ‘deteriorat- ing health’ [74] condition of Chief Justice Sayem. Zia arranged a referendum ‘unknown to the Constitution or any other law of Bangladesh’ [75] to obtain the

Footnotes

[70]. Ibid., Article 120.

[71].  Sakawat Hussain, Electoral Reform, 51.

[72]. Fazl Huq, “Constitution Making,” 75.

[73]. Moudud Ahmed, Bangladesh: Era of Sheikh Mujibur Rahman (Dhaka: University Press Limited, 1983), 143–4.

[74]. Bangladesh Italian Marble Works Ltd. v. Bangladesh, 14 BLT (2006) (HCD) (Spl) 1, p. 91.

[75]. Ibid., p. 86.

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‘confidence’ of the people. As the poll suggested, almost 99 percent of the people of Bangladesh had ‘confidence in Major General Ziaur Rahman and in the policies and programs enunciated by him’[76] Meanwhile, the country adopted a presidential form of government and presidential elections were scheduled for June 1978. Zia, the Chief of Army Staff and a nominated president until then, put forth his candidacy. The Chief of Army Staff, a servant of the Republic, running for a political post of presidency appeared odd to some, and the legality of Zia’s candidacy came before the High Court Division in A. K. Mujibur Rahman v. Returning Officer &ors (1979).[77]

The operative Regulations No. 291–93 of the Army Regulations Volume I (Rules) positively barred a military officer from being a candidate for any elected post, including that of president. Zia wanted to be president but, at the same time, he could not afford to leave the command of the army. Zia cleverly left the post of army chief but kept the post vacant. The Martial Law Procla- mation of 1977 then was amended to provide that the Supreme Command of the Defence Forces would be vested in the Chief Martial Law Administra- tor (CMLA).[78] Zia thereby remained Commander-in-Chief of the Defence Forces in his capacity as the CMLA. Thereafter, another amendment to Army Regulations 291–93 provided that an officer of the Bangladesh Army holding the post of CMLA would be eligible to compete in presidential elections because the presidency was ‘not an office of profit.’ Now Zia commanded the army but he was not the army chief and therefore was eligible for the presidency. Before the Supreme Court, the government attorney argued that because the position of the Chief of Army Staff was vacant and General Zia was the Commander-in-Chief, he was neither holding any office of profit nor was he subject to military law per the amended Army Regulations.[79] The petitioner’s argument about the ‘sheer hierocracy’ [80] behind the entire amendment process was not given any consideration. The Court, facing a ‘force-based or authoritative’ military ruler’s case, simply found no mala fide. [81] The Division Bench of Justices Shahabuddin Ahmed and Abdul Matin Khan Chowdhury

Footnotes

[76]. Ibid., p. 123.

[77]. 31 DLR (1979) (HCD) 156.

[78]. Ibid., para. 5. Because the amended provision was not placed before the Returning Officer earlier, the petitioner claimed that perhaps this amendment was made just before hearing of the writ petition through a back-dated Gazette Notification.

[79]. Ibid., para. 6.

[80]. Bangladesh Italian Marble Works Ltd. v. Bangladesh, 14 BLT (2006) (HCD) (Spl) 1, p. 238.

[81]. Ridwanul Hoque (2009), “The Recent Emergency and the Politics of the Judiciary in Bangladesh,” National University of Juridical Sciences Law Review 2: 189.

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held that it was ‘for the President and CMLA’ to decide who should be Commander-in-Chief. [82] In the ensuing election, Zia received 76.73 percent of the vote to become a ‘democratic’ president.

The second parliamentary election was held in February 1979. A few months before the election, Zia managed to form the BNP. Capitalizing on the uneven playground, the BNP secured 207 of the 300 seats and 41 percent of the total votes cast. Zia had his martial-law regime legitimized through the Constitu- tion (Fifth Amendment) Act of 1979 passed by the newly convened second parliament. He left the military and appointed H. M. Ershad as the Chief of Army Staff. It is ironic that after leaving the military, Major Zia would not survive for more than two years; he was assassinated in May 1981 by a dissident military faction. Justice Abdus Sattar, the then-vice president, became the acting president and put forth his candidacy in the presidential election promised after Zia’s assassination. Because the constitution did not permit a person holding an office of profit in the service of the Republic to contest the election, it was amended to provide that the post of vice president was not an office of profit. [83] Crudely stated, the constitution was amended to ensure the candidacy of a particular candidate. The result was as expected – but Justice Sattar could not continue for long.

Martial law was imposed for the second time by the then-Chief of Army Staff Lieutenant General H. M. Ershad, who ousted Sattar’s government on March 24, 1982. Ershad followed his military predecessor Zia’s approach. First, he launched a catch-all type of government party (i.e., the Jatya Party [JP]) by co-opting some well-known politicians. A ritual of political legitimation then was observed by arranging a referendum on March 21, 1985. Ershad announced that through the referendum, he would assess to what extent the people supported his policies undertaken since March 1982. The referendum, however, would not be limited to a mere opinion poll. A positive verdict would allow Ershad to ‘continue as President of the country’. Although political parties openly asked citizens to ‘resist’ the referendum, the Election Commission claimed a voter turnout of 72.14 percent, with 94.14 percent affirmative votes for Ershad’s continuation. Independent local and foreign observers, however, found the figure inflated and affirmed a maximum voter turnout of 20 percent. [84]

Ershad then arranged the third parliamentary election on November 10, 1986, in which the JP secured a decisive victory by obtaining 51 percent of the

Footnotes

[82]. Supra note 79.

[83]. The Constitution (Sixth Amendment) Act of 1981, Section 3.

[84]. Peter J. Bertocci (1986), “Bangladesh in 1985: Resolute Against the Storms,”Asian Survey, 26 (2): 229. Available at jstor.org/stable/2644458 (accessed July 23, 2013).

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total seats and 42 percent of the votes cast. The JP secured a majority with 83.7 percent of the total seats in parliament yet again in the fourth parliamentary election held in 1988.85 The scale of rigging in the 1986 elections, however, surpassed all previous records. The ‘musclemen’ of Ershad’s JP captured many polling stations and terrorized voters. The extent of rigging led a three-member British observer team to describe the election as ‘a tragedy for democracy’ and a ‘cynically frustrated’ exercise.86 Ershad resigned from his post as army chief, ‘joined’ the JP, and proceeded toward a total democratization by scheduling presidential elections for October 15, 1986. Political parties participating in the third parliament election a few months earlier decided not only to boycott but also to resist the election. A general strike was called and enforced on Election Day; Ershad was little affected. As the Election Commission found, he secured 83.57 percent of the 54.23 percent of votes cast. Whereas the opposition parties claimed less than a 3 percent voter turnout, independent observers put the figure around 15 percent.87 With a recently established servile parliament at his disposal, Ershad successfully completed the transformation of his military rule into a ‘constitutional’ rule. On November 10, 1986, the third parliament passed the Constitution (Seventh Amendment) Act to legitimize Ershad’s martial-law period of March 1982 to November 1986.

It is interesting that subsequent elections did not increase Ershad’s political legitimacy. Instead of weakening the antiregime movement, elections inten- sified it. By 1987, the three major political blocks of Bangladesh led by the AL, the BNP, and leftist parties formed a strong alliance for unseating Ershad and restoring democracy. Following clashes and riots, Ershad dissolved the third parliament after only two years of its tenure. New elections to the fourth parliament were declared on March 3, 1988. With no major opposition parties participating, a Combined Opposition Party (COP) of seventy-six politically unknown parties opposed Ershad’s JP. With 68 percent of votes cast, the JP won 251 seats. The COP won 19 seats with 12.63 percent of the votes cast. The Election Commission claimed a voter turnout of 54.93 percent, which boycotting opposition parties simply ridiculed by claiming a turnout of less than 1 percent.88 The 1988 election deepened Ershad’s legitimacy crisis. After a year of turmoil and political protests, the opposition parties signed a joint

Footnotes

[85]. Nizam Ahmed, “Bangladesh,” in D. Nohlen, F. Grotz, and C. Hartmann (eds.), Elections in Asia: A Data Handbook (Oxford: Oxford University Press, 2001), 528.

[86]. Muhammad A. Hakim, Bangladesh Politics: The Shahabuddin Interregnum (Dhaka: University Press Limited, 1993), 27.

[87]. Samina Ahmed (1991), “Politics in Bangladesh: The Paradox of Military Intervention,” Regional Studies, 9 (1): 58.

[88]. Hakim, Shahabuddin Interregnum, 30.

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declaration on November 19, 1990, that outlined a formula for the transition from autocracy to democracy.[89] The opposition parties vowed not to take part in any further elections under Ershad. He was given an ultimatum to resign and hand over power to a ‘caretaker government’ that would oversee the transition to a ‘sovereign parliament’ elected through a free and fair election. In the wake of the 1990 mass upsurge, on the morning of December 6, 1990, Ershad appointed the then-Chief Justice Shahabuddin Ahmed as vice presi- dent, as demanded by opposition parties. Ershad resigned the same evening. The Chief Justice-cum-Vice President then became the president, formed a government, and remained in power during the fifth parliamentary election held in February 1991.

EMERGENCE OF THE CARETAKER GOVERNMENT MODEL

The government of Ahmed was popularly termed a ‘caretaker government’. In the February 1991 election, the BNP won 133 seats in parliament and formed a coalition government with the Jamaat Islami (JI), which won 18 seats. [90] This was perhaps the most free and fair election that the people of independent Bangladesh had hitherto seen. Ahmed returned to his original post of chief justice and his government was legitimized by the Constitution (Eleventh Amendment) Act of 1991.

The nonpolitical government holding the 1991 election became a model for future elections. The year 1994 marked another eventful year in the history of Bangladesh. Three major opposition parties – the AL, the JP, and the JI – alleged that the March by-election in the Magura-2 constituency was unfair due to the BNP government’s interference and use of government machinery to win the seat. The Magura-2 seat, vacated due to a death, had been occupied by the AL for several preceding terms. Its loss to the BNP led to complaints of large-scale vote rigging. The opposition parties complained that there could no longer be any free and fair elections under BNP governments and declared that they would not participate in any future election except under a caretaker regime. [91]

Bangladesh then witnessed continuous boycotting of the parliament by opposition parties pressing their demands for a constitutional amendment that

Footnotes

[89]. Fakhruddin Ahmed, The Caretakers: A First-Hand Account of the Interim Government of Bangladesh (1990–1991) (Dhaka: University Press Limited, 1998), 12–13.

[90]. Zillur R. Khan (1997), “Bangladesh’s Experiments with Parliamentary Democracy,” Asian Survey, 37 (6): 581. Available at jstor.org/stable/2645531 (accessed February 2, 2013).

[91]. Golam Hossain, “Bangladesh in 1994: Democracy at Risk,” Asian Survey, 35 (2, 1995), 172. Available at jsot.org/stable/2645027 (accessed June 25, 2013).

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would provide for at least the next three national elections being held under a neutral caretaker government like that of 1991. A government taking charge in a time of transition was seen as the only cure for electoral irregularities. The controversial caretaker system was to be formed with judges from the Supreme Court. The ruling party initially paid little heed to the demand and proposed to empower the Election Commission instead. Because the proposal was rejected outright by opposition parties, the BNP government moved to hold a one-party election for discharging the ‘constitutional obligation to sustain a legitimate administration’ and secured 92.7 percent of the total seats. [92] Elections could not be held in at least eleven constituencies due to violence and boycotts by the combined opposition; thereafter, under fierce pressure from the oppo- sition, the government pushed through the Thirteenth Amendment to the Constitution that introduced the caretaker system. [93]

The Constitution (i.e., Thirteenth Amendment) Act of 1996 was passed on March 26, 1996. It provided for a non-party caretaker government, which – acting as an interim government – would render all possible aid and assistance to the Election Commission for the fair conduct of parliamentary elections. The non-party caretaker government, composed of the chief adviser and not more than ten other advisers, would be collectively responsible to the president. The typical process for forming a caretaker government involved the president appointing the chief adviser and other advisers within fifteen days after dissolution of the parliament. Between the dates on which the parliament stood dissolved and the chief adviser was appointed, the prime minister and his Cabinet in office immediately before the dissolution would continue to hold office. [94]

Article 58C identified the categories of those eligible for the post of the chief adviser to the caretaker government in order of precedence: (1) retired chief justices of Bangladesh, the most recent being the first on the list; (2) retired judges of the Appellate Division of the Supreme Court, the most recent being the first; (3) anyone among the citizens of Bangladesh agreed to by political consensus; and (4) as a last resort, the president assuming the duties of chief adviser in addition to his duties of the presidency. [95] The advisers to the caretaker government were to be chosen and sworn in by the president from a

Footnotes

[92]. M. Rashiduzzaman, “Political Unrest and Democracy in Bangladesh,” Asian Survey, 37 (3, 1997), 260. Available at jstor.org/stable/2645662 (accessed June 25, 2013).

[93]. Nizam Ahmed (2003), “From Monopoly to Competition: Party Politics in the Bangladesh Parliament (1973–2001),” Pacific Affairs 76 (1): 59. Available at http://my.ilstu.edu/~ariaz/ BangladeshMonopoly.pdf (accessed April 20, 2013).

[94]. Supra note 18, Article 58C(2), as it stood before the Fifteenth Amendment.

[95]. Ibid., Article 58(C)(3)–(6).

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list provided by the chief adviser. [96] The constitutionally defined ‘qualifications’ of an adviser included (1) non-affiliation with any political party or organization associated or affiliated with any political party; and (2) a written statement promising not to be a candidate for the ensuing parliamentary election. [97]

The chief adviser would have the ‘status, privileges and remunerations’ of a prime minister and the advisers were treated similarly on a par with ministers. [98] The principal mandate of the caretaker government was to give the Election Commission ‘all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially’.[99] Other than election-related activities, the caretaker government would remain mindful of its ‘interim’ status and restrict itself within ‘the routine functions’. Except in the case of necessity for the discharge of these routine functions, it would not make any policy decisions.[100] The caretaker government would be dissolved on the date on which the newly elected prime minister entered office after the constitution of the new parliament. [101]

DRAWBACKS OF THE CARETAKER GOVERNMENT MODEL

Although hailed by the populace in general, the system of caretaker govern- ment headed by a retired chief justice of the Supreme Court to ‘assist’ the Election Commission in holding parliamentary elections was not regarded as a sustainable solution to the problem of electoral corruption and fraud. Indeed, this system attracted judicial attention even before its adoption through the Thirteenth Amendment of the constitution.

In 1995, the continuous and unabated abstention from parliament by polit- ical parties such as the AL, the JP, and the JI to fulfill their demands for a caretaker government was challenged with a writ of mandamus to attend parlia- ment being sought against them.[102] Directing parties to attend parliament, the High Court Division Bench composed of Justices Qazi Shafiuddin Ahmed and Kazi A. T. Manowaruddin rejected the caretaker system.[103] ‘Nowhere within the four corners of the constitution’ could they locate any support for such a system.[104] Moudud Ahmed, a boycotting member of parliament,

Footnotes

[96]. Ibid., Article 58(C)(8).

[97]. Ibid., Article 58(C)(7).

[98].  Ibid., Article 58(C)(11).

[99]. Ibid., Article 58(D)(2).

[100]. Ibid., Article 58(D)(1).

[101]. Ibid., Article 58(C)(12).

[102]. Anwar Hossain Khan v. Speaker, Jatya Sangsad, 47 DLR (HCD) 42.

[103]. Ibid., para. 41.

[104]. Ibid., para. 36.

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appealed. However, before disposal of the appeal, the demand of opposition parties was conceded and the caretaker system was introduced by amending the constitution. Therefore, the appeal (i.e., Moudud Ahmed v. Anwar Hos- sain Khan) did not decide the constitutionality of the caretaker system.[105] The Appellate Division instead set aside the order of mandamus for the reasons that non-appearance and non-participation in the internal proceedings of the parliament were matters outside of its jurisdiction. Moreover, such a mandamus risked being unenforceable. ‘Even if an MP is compelled to attend the sitting of the Parliament, he cannot be compelled to participate in the proceedings therein. So no purpose would be served by the Court’s order and the Court ought not to make such an order at all’, the Appellate Division opined.[106]

In 2005, the caretaker system came under major judicial inquiry in M. Saleem Ullah. [107] The Thirteenth Amendment was challenged on two grounds. First, it was contended that by introducing a government not elected by the people, the amendment destroyed the basic structure of the constitution.[108] Second, it was argued that the amendment violated the core separation-of- powers principle of judicial independence. Whereas Article 99 of the constitution prohibited a Supreme Court judge from holding any office of profit after retirement, the newly inserted Article 58C – which required a retired chief justice or an Appellate Division judge to be the chief adviser – violated the norms of judicial independence.[109] The Court rejected the petition, holding that the system of caretaker governments was introduced to ‘consolidate democracy by ensuring free and fair elections,’ which was part of the basic structure of the constitution.[110] Rather than being a threat to democracy, the Thirteenth Amendment, the argument stated, actually enabled it. Regarding the apprehension of politicization of the judiciary and the doctrine of sepa- ration of powers, the Court decided not to ‘question, suspect or undermine the wisdom of the legislature’ in choosing judges ‘of high moral and impartial character’. [111] Matters were left to the parliament with the Court opining that ‘If anything better comes out, the legislature is free to adopt it’. [112]

From 1996 on, the institution of caretaker governments traveled a tortuous journey toward its ultimate demise in 2011. The fear that the system might

Footnotes

[105]. Moudud Ahmed v. Anwar Hossain Khan, 60 DLR (2008) (AD) 108.

[106]. Ibid., para. 70.

[107]. M. Saleem Ullah v. Bangladesh, 57 DLR (2005) (HCD) 171.

[108]. Ibid., para. 27.

[109]. Ibid., para. 12.

[110].  Ibid., para. 34.

[111]. Ibid., para. 40.

[112]. Ibid., para. 93.

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politicize the judiciary and impact the ideal of judicial independence was painfully realized. Anomalies with the 2006 caretaker government invited another military intervention in politics. Military rule under the guise of a caretaker government continued for two years (2007–2008). All of this finally triggered changes in judicial attitudes. With an interim government indefinitely ruling the country, a writ petition was filed. The Single Bench of the High Court Division, finding the tenure not constitutionally mandated, opined that a caretaker government ‘should not remain’ in office for an unnecessarily prolonged period.[113] Another writ petition challenged the indefinite continuance of emergency by a caretaker government without holding elections within the ninety-day outer limit contemplated by the constitution for a newly elected parliament to be sworn into office. [114] The Single Judge Bench of the High Court Division of Justice A. B. M. Khairul Haque agreed and held that the ‘state becomes non-democratic and people lose the ownership of the state’. [115] Thus, neither an emergency nor a caretaker government could continue for an indefinite period.[116]

Ultimately, in 2011, the Appellate Division decided to invalidate the system.[117] Although there remains the charge that the Supreme Court ‘improperly excluded the specificities of local politics,’ the Fifteenth Amendment to the constitution quickly deleted the chapter on ‘caretaker government’. This action created a political dilemma regarding future elections.118 To better understand this situation, it is necessary to describe four problems with the system of caretaker governments.

First, instead of ensuring a balance of power between the president and the chief adviser, the system made the nonpartisan chief adviser and his Cabinet responsible to the president who, first and foremost, was a party man.119 Although the constitution modeled the caretaker government in the manner of

Footnotes

[113]. Masood R. Sobhan v. The Election Commission and Ors, 28 BLD (HCD) 317, para. 40.

[114]. Advocate Sultana Kamal & Others v. Bangladesh, 14 MLR (2008) (HCD) 105, para, 167.

[115]. Ibid., Justice A. B M. Khairul Haque, para. 138.

[116]. Ibid., para. 176(4).

[117]. Abdul Mannan Khan v. Bangladesh, Civil Appeal No. 139 of 2005. This was an appeal from M. Saleem Ullah v. Bangladesh, 57 DLR (HCD) (2005) 171 disposed of in 2011. While the appeal against Saleem Ullah decision was pending in the Appellate Division, the appellant M. Saleem Ullah died and Abdul Mannan Khan was replaced as appellant.

[118]. Ridwanul Hoque, “Constitutionalism and the Judiciary in Bangladesh,” in Sunil Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam (eds.), Comparative Constitutionalism in South Asia (New Delhi: Oxford University Press, 2013), 317.

[119]. Article 58C inserted in the Constitution (Thirteenth Amendment) Act of 1996 provided that the last retired Chief Justice of the Supreme Court would lead the Non-Party Caretaker Government and the ten other members of his Advisory Council would be appointed from among the citizens of Bangladesh that have no affiliation with any political party.

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a parliamentary system, Article 58B (read with Articles 58E and 61) produced a type of loose diarchy between the president, who was the head of the state, and the chief adviser, who was the head of the government.[120] The most ingenious change was introduced in Article 61. During the tenure of elected government, the exercise of the supreme command of the defence services is ‘regulated by law’, which in effect vests control in the hands of the prime minister, who is the leader of parliament and the popularly elected chief of the executive. Under the amended Article 61, however, the supreme command during the caretaker government was vested absolutely in the president who would ‘administer the laws’ regulating defence services. The Ministry of Defence thereby was con- stitutionally taken away from the control of the chief adviser. The rationale for this is in the inarticulate premise of expansion of presidential power. Although executive power was handed over to the neutral caretaker government, the incumbent President Abdur Rahman Biswas, a BNP appointee, used all of the powers at his command to interfere with the election process whenever neces- sary. Hence, the emergency power, military power, ordinance-making power, and power to hold the caretaker government accountable were all vested in the president, who otherwise was a symbolic head of state of a parliamentary democracy. All of a sudden, a pseudo-presidential government with an all- powerful president emerged from nowhere to fulfill party commitments. It is interesting that the president reverts to his original weak position under the parliamentary system on the date on which a new prime minister assumes office.

Early in this evolution, the possibility of abuse of such enhanced presidential power reared its ugly head. On May 20, 1996, only three weeks before the upcoming national election, President Abdur Rahman Biswas suddenly dismissed the military chief, Major General Nasim, for his alleged failure to suspend two senior military officers who were, in his words, ‘colluding with a certain political party’. Major General Nasim claimed that he was safeguarding his colleagues who were not given a fair hearing on the allegations brought against them. Major General Mahbubur Rahman, who later joined the active politics of the BNP, was appointed the new military chief. The ousted military chief revolted and a number of army barracks around the country rallied in his favor. However, the Dhaka Brigade of the Army, which was under the direct

Footnotes

[120]. Article 58E of the Constitution of the People’s Republic of Bangladesh states that during this period, the requirement of the president to act on the advice of the prime minister or on his prior countersignature shall be ineffective. Article 58B(2) made the caretaker government collectively responsible to the president. Per Article 61, during this period, the supreme command of the defence services vested absolutely in the president.

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command of the new military chief, took the president’s side. The Dhaka Brigade guarded the presidential palace, streets, and television and radio sta- tions in Dhaka while there were reports of rebel troop mobilization toward Dhaka. The AL, the party spearheading the caretaker-government movement, condemned the president’s suspicious move and demanded a public disclo- sure of the allegations against the senior military officials. The BNP, however, supported the president’s move. It is surprising that the chief adviser to the caretaker government, Justice Habibur Rahman, was not informed of the incident.[121] The president’s suspicious interference in the military ranks at such a crucial juncture almost caused another military intervention in poli- tics. It is widely believed that the president was trying to declare an emergency by dragging the military into politics, thereby postponing an election that the AL was poised to win. As a result of the wisdom and calm of the chief adviser, Major General Nasim was persuaded the next morning to hand over the office to his newly appointed successor. Justice Habibur Rahman later wrote about the sleepless night of May 20, when he persuaded the military chief to put his rebellion to rest and allow the caretaker government to conduct the election.[122]

Second, the amended constitution provided the scope for a partisan president to manipulate the appointment of the chief adviser of a supposedly nonpartisan caretaker government – and even usurp it for himself.[123] In Octo- ber 2006, it appeared (in the words of one commentator) as an ‘Aladdin’s Lamp’[124] in the hands of the president. With the first two governments of Justice Habibur Rahman (1996) and Justice Latifur Rahman (2001), there had been considerable consensus over their appointment as chief advisor. How- ever, matters became complicated in the third instance when the then-ruling four-party alliance government decided to amend the constitution to ensure that someone ‘acceptable’ to it assumed office.[125] Accordingly, Justice K. M. Hassan, the then-last retired Chief Justice of Bangladesh, who had a previous

Footnotes

[121]. For a brief account of the incident, see Amena Mohsin, “Bangladesh: An Uneasy Accommo- dation,” in Muthiah Alagappa (ed.), Coercion and Governance: The Declining Political Role of the Military in Asia (Stanford, CA: Stanford University Press, 2001), 223–4.

[122]. For a personal account of the then-chief adviser Justice Habibur Rahman, see Justice Habibur Rahman, The Burden of Caretaker Government (in Bangla) (Dhaka: Prothoma Publications), 428–31.

[123]. Article 58C(6) inserted by the Constitution (Thirteenth Amendment) Act of 1996.

[124]. Sinha M. A. Sayeed, “Article 58C(6): Aladdin’s Lamp? Amendment Needed for the Sake of Democracy,” The Daily Star, Law and Our Rights, November 25, 2006.

[125]. In the Fourteenth Amendment, Article 96(1) of the constitution was amended to increase the retirement age of Supreme Court judges. It was done allegedly to ensure that Justice K. M. Hasan assumed the office of chief adviser during the upcoming national election.

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political association with the BNP, was chosen for the post. Complications arose when Justice Hassan, forced by the political movement of the opposition parties, expressed his unwillingness to assume the office. The president bypassed all other constitutional options and assumed the post himself, leading to the worst of the non-party caretaker governments. At the insistence of the military, an emergency was declared on January 11, 2007. Another caretaker government was formed and it continued for two years – even though the constitution ‘did not contemplate its duration beyond 90 days’.[126] In fact, including the provision for the possibility of a party president assuming the functions of the chief adviser in the Thirteenth Amendment was a legal blunder. It was an outright rejection of the concept of the neutral caretaker government introduced by the Thirteenth Amendment – which, of course, was devised in the wake of chronic mistrust and political parties doubting one another.

Third, the Thirteenth Amendment authorized the caretaker government to carry out only routine functions of the government. However, it was not barred in the discharge of such functions from making policy decisions in the case of necessity.[127] Nevertheless, the determination of ‘necessity’ – especially in the realm of foreign affairs, finance, and war – appeared hazy and allowed for the exercise of unaccountable discretion.[128] The concept of ‘routine function’ has played to both the advantage and disadvantage of different caretaker governments. Under the guise of ‘necessity’, the successive caretaker governments indulged in clearly extra-constitutional activities, such as forcing the Election Commissioners to resign under pressure [129] and amending the principal electoral law – namely, the Representation of the People Order of 1972. [130]

Footnotes

[126]. Masood R. Sobhan v. The Election Commission and ors, 28 BLD (HCD) 317, para. 40.

[127]. Supra note 18, Article 58D(1), as inserted by the Constitution (Thirteenth Amendment) Act of 1996.

[128]. Sinha M. A. Sayeed, “Non-Party, Neutral Caretaker Government Powers of President and Chief Adviser,”The Daily Star, Law and Our Rights, October 21, 2006.

[129]. It was noted that the 1991 caretaker government of Justice Shahabuddin Ahmed ‘requested’ the CEC Justice Sultan Hossain Khan to resign and he obliged. The 1996 caretaker government of Justice Habibur Rahman ‘requested’ the CEC Justice Abdur Rouf to resign and he also obliged. The 2001 caretaker government of Justice Latifur Rahman caused the president to invite two of the election commissioners to a ‘tea’ and requested them to resign. The commissioners, however, declined. The 2006–2007 caretaker government also invited the CEC Justice M. A. Aziz and his colleagues to ‘tea’ and caused them to resign. See Md. Nazrul Islam (2013), “Non-Party Caretaker Government in Bangladesh (1991–2001): Dilemma for Democracy?,” Developing Country Studies, 3 (8): 122–3. Available at iiste.org/Journals/index.php/DCS/article/download/7066/7217 (accessed October 25, 2013).

[130]. It is disturbing that almost all of the electoral reforms sponsored by the civil society and citizen groups were put forth and pressed on the caretaker governments. It was taken for granted that the political governments would not bring or be persuaded to bring amendments to the Representation of the People Order of 1972. Therefore, all of the 1991, 1996, 2001, and 2007 caretaker governments commenced their mission with a long list of amendments in the 1972 law that included, among others, enforcement of a ceiling on the maximum allowable election expenses and disqualification of candidates with criminal records. The successive caretaker governments therefore were hailed for these necessary ‘routine’ works; the political governments next coming to power unhesitatingly scrapped those reforms. The trend is ‘disturbing’ because it permanently labels the political forces as nonprogressive and encourages the people not to expect much from them. This negative impetus discouraged the representative elements from bothering with reform issues, thereby leading the country toward a reduced democracy in which the bureaucratic and technocratic elements consider themselves to be the rightful claimant of occasional powers to put the country on the ‘right track’. See Villoro Luis, “Which Democracy,” in Democracy: Achievements and Principles (Geneva: Inter Parliamentary Union, 1998), 96–9.

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Again, on the excuse of a ‘routine’ mandate, the chief adviser to the caretaker government of 1996 was prevented from knowing the causes of the military crisis that almost toppled his government. Also, immediately after the 9/11 terrorist attack on the United States, the 2001 caretaker government of Justice Latifur Rahman instantaneously granted the U.S. Security Forces an unconditional license to use the land, air, and sea of Bangladesh for purposes of its ‘war against terrorism’. How could an unelected, apolitical interim government with a mandate simply to supervise elections decide on such a fundamental issue regarding the sovereignty of the country, particularly when there was no legislature to deliberate on the matter? Furthermore, the 2001 caretaker government’s initiative to separate the judiciary from the executive through executive order was perceived by many as beyond the constitutional limits of its authority.

Complexities peaked during the tenure of the 2007 caretaker government, which continued for a period well beyond that contemplated by the constitution. There was considerable ambiguity on the reasonable duration for which a caretaker government could exercise routine functions if parliamentary elections were delayed because of war or an act of God, such as a natural calamity or a man-made disaster such as that in October 2006.[131] The military-backed care- taker government of 2007 undertook a wide range of forced ‘reforms’, including an anti-corruption drive; controversial reforms in judiciary; and various levels of changes in the administration, police, and autonomous bodies such as universities, the Human Rights Commission, the Anti-Corruption Commission, and the Information Commission. In the extreme, the unelected caretaker government proposed and passed two annual budgets, levied taxes, and incurred expenditures without any parliamentary approval. [132] Overnight change was sought in the political landscape, part of which was that a ‘minus-two

Footnotes

[131]. M. A. Sinha, “Non-Party, Neutral Caretaker Government.”

[132]. Mashihur Rahman, “Budget, Ordinance and Constitutional Government,” Dhaka Courier, May 11, 2007; 13.

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formula’[133] was about to be implemented by forcing the leaders of the two major political parties (i.e., Sheikh Hasina and Khaleda Zia) into exile. The military lobby backing the ‘caretaker’ government continued to call for a major restructuring in the constitutional fabric.[134] Because this also failed, the military-backed ‘caretaker’ government eventually was compelled to schedule elections in December 2008 and hand over power to the elected civilian gov- ernment. However, a total of 117 ordinances promulgated by this caretaker government addressed issues not even remotely connected to a free and fair election.[135]

The judicial responses to some of these ordinances were inconsistent and contributed to fostering further confusion.136 The Supreme Court scrapped an ordinance dealing with licensing of the marriage registrars137 on the grounds of there being no necessary and proximate relation138 with the government’s ‘limited mandate of holding a national election’.139 Another of the caretaker government ordinances regulating the appointment of Supreme Court judges was challenged in 2008. The petitioner argued that the ordinance regarding a policy issue such as appointments of High Court Division judges was not within the government’s mandate. It was argued forcefully by the attorney general that during the caretaker regime, Article 93 (i.e., Ordinance Making Power of President), coupled with Article 58E (i.e., the president’s freedom from complying with the prime minister’s advice), transforms the legislative power of the president into an ‘exclusive and inherent’140 power. Hence, the president during this time could not be barred from formulating ‘legislative policy’.141 Had this argument been accepted, the ‘routine-function’ mandate essentially would be discarded. The judges constituting the bench were divided. Justice

Footnotes

[133]. Kazi S. M. Khasrul Alam Quddusi (2013), “Elections in Bangladesh: Who after Caretakers?” Social Action, 63: 272.

[134]. For a brief introduction with the constitutional thoughts of Moin U. Ahmed, the then-military chief, see Harun Ur Rashid, “New Democratic Political Order in Bangladesh: Chief of Army’s Message.” Available at sydneybashi-bangla.com/Articles/Harun New%20Democratic%20Political%20Order%20in%20Bangladesh.pdf (accessed October 28, 2013).

[135]. M. Jashim Ali Chowdhury, An Introduction to the Constitutional Law of Bangladesh (Dhaka: Northern University Bangladesh, 2010), 409.

[136]. Pirjada Syed Shariat Ullah v. Bangladesh, 61 DLR (2009) (HCD) 647; Idrisur Rahman v. Bangladesh, 60 DLR (2008) (HCD) 714. Other related instances include M. Shamsul Hoque and Ors v. Bangladesh, W/P No. 4300 of 2008, and suo moto Rule 5 of 2008 that declared the Contempt of Court Ordinance 2008 unconstitutional.

[137]. Ibid., Pirjada Syed Shariat Ullah, para. 6.

[138]. Ibid., para. 63.

[139]. Ibid., para. 49.

[140]. Supra note 136, Idrisur Rahman, para. 29.

[141]. Ibid., para. 141.

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Abdur Rashid held that during a caretaker government, the president could not acquire any new powers.[142] By constitutional convention, the president was obliged to act on the advice of the caretaker government,[143] and such a government could not advise the president beyond its own mandate. Justice Nazmun Ara Sultana, however, held that during the period of a non-party caretaker government, the president could promulgate ordinances containing policy decisions if that became ‘urgently necessary for the discharge of routine function’ of the caretaker government.[144] For him, appointment of judges to the Supreme Court was a routine function.[145] Faced with the division, some called for accepting the caretaker system as a ‘curse of democracy’ with its inherent paralysis as long as it survived.[146]

Fourth, had a situation of war arisen during a caretaker government, the president – by the authority of Article 74 – could call the recently dissolved parliament back into session. [147] The reconvened parliament may enact laws indefinitely extending its tenure. This is subject only to a condition that the tenure may not be extended beyond one year by a single legislation and beyond a maximum six-month period after the termination of war. [148] It is important to note that this uncertainty regarding tenure is not the only concern. The Thirteenth Amendment added to the concern by ambiguously providing in Article 58A that constitutional provisions relating to the prime minister and his Cabinet ‘shall apply’ notwithstanding any provision of a caretaker government.[149] What could this mean? A natural interpretation bolsters the assumption that the chief adviser and his caretaker government would resign and the immediate past prime minister and his Cabinet would resume office. In this situation, the election arrangements are supposed to be halted.

This is not unanimously agreed to, unfortunately. As stated previously, the ruling party – while reluctantly conceding the demand for caretaker government in 1996 – was more committed to its short-term interest of returning to power through every possible means than to prescribe an objective solution to a constitutional crisis. Unfortunately, the lawyers and academia in

Footnotes

[142]. Ibid., para. 94.

[143]. Ibid., para. 95.

[144]. Ibid., para. 144.

[145]. Ibid., para. 146.

[146]. Mizanur Rahman Khan, “Validity of Ordinance: The Judgment of High Court Division Is Misleading” (in Bangla), The Daily Prothom Alo, July 17, 2008.

[147]. Supra note 18, Article 72(4).

[148]. Ibid., Article 72(3).

[149]. Ibid., Article 58A as inserted by the Constitution (Thirteenth Amendment) Act of 1996.

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Bangladesh – deeply and roughly divided along political lines – also devel- oped a strong tendency to indulge in selective interpretive engineering that serves the interests of their respective political leanings.[150] Whereas supporters of outgoing governments forcefully argue for a return of the previous govern- ment and parliament, those sympathetic to opposition parties are reluctant to accept this apparently clear meaning. It has been argued that the recall of parliament would not invite the immediate past prime minister and his Cabinet to power.[151] At best, they could sit in parliamentary sessions like all other members of the parliament. The caretaker government continues.[152]

If this interpretation is accepted, only Article 74 would be complied with and Article 58A simply would be rendered nugatory. Additionally, such an interpretation destroys the very purpose of recalling parliament. When parliament is called back to exercise control over the budget and conduct of war, the existence of a caretaker government responsible to the president and not to the parliament does not serve any real purpose. Whereas one judge of the Appellate Division has accepted the probability of the outgoing prime minister resuming office,[153] another judge has opined that the caretaker government also would continue in office. It is interesting that this judge was unsure of the constitutional justifications for ‘acts, deeds, things and transactions’ of the caretaker government relating to the affairs of state.[154]

Other than these major defects, the scale of politicization of the judiciary caused by the system of caretaker governments undermined the confidence of the people in the Supreme Court. It was against the background of these concerns that the Supreme Court invalidated the system, observing ‘There is, therefore, no gainsaying the fact that the system introduced by the impugned amendment [the Thirteenth Amendment] can be termed as hotchpotch system and the same violates the entire scheme of the Constitution’.[155]

Footnotes

[150]. Professor M. Shah Alam compares them with the situation of German academics and lawyers committed to the Bismarck doctrine of legality, wherein the ruler does what best suits his purpose and then hires hundreds of lawyers to justify his actions. See M. Shah Alam, “Article 58C and Assumption of Office of the Chief Adviser by the President,” The Daily Star, Law and Our Rights, November 11, 2006.

[151]. M. A. Sinha, “Non-Party, Neutral Caretaker Government.”

[152]. Supra note 117; per Justice Wahab Miah, p. 594.

153 As Justice Wahab Miah stated: ‘With the summoning of the dissolved Parliament under Article 72(4)[,] Chapter II along with Article 56(4) shall automatically be revived and then the President shall have the authority to appoint the Prime Minister in exercise of his power under Article 56(3) thereof from amongst the persons who were the members of the dissolved Parliament. Therefore, no anomaly and uncertainty as to the post of Prime Minister would arise’, 684.

[154]. Supra note 118; per Justice Sinha, 423–4.

[155]. Ibid., per Justice Sinha, 428.

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THE JUDICIALIZATION OF POLITICS

An ideal model of the separation of powers would discourage the frequent resorting to the judiciary to solve all types of problems, without reflection over whether they are suited for judicial resolution. Although the judicialization of politics has been accused of producing a ‘juristocracy’ in several countries around the world, it is unfortunate that Bangladesh remains unmindful of the dangers of excessive judicial intervention in matters of politics.[156] The military dictators needed judges to lend legitimacy to their otherwise illegiti- mate regimes.[157] However, continuing the legacy of a well-oiled domesticated judiciary is a profoundly disturbing trend. It seems that, other than a few exceptions, Bangladesh could not imagine the Election Commission without judges, sitting or retired, from the Supreme Court. Justice Sultan Hossain Khan, Justice Abdur Rouf, Justice A. K. M. Sadek, and Justice M. A. Aziz – all are known more as CECs than as judges of the Supreme Court. Justice Sultan Hossain Khan has been exceptionally fortunate: he was the Chairman of the Press Council in 1991 as well as Chairman of the Anti-Corruption Commission in 2003.

It is interesting that the Constitution of Bangladesh is highly critical of such practices. In Bangladesh, the concept of ‘office of profit’ plays an instrumental role in the overall scheme of separation of powers. In principle, the members of the legislature are barred from holding ‘any other office of profit’ in the service of the Republic.[158] The philosophy underlying this prohibition is that holding an office of profit under the state may be either incompatible with a legislator’s duty or affect his independence. Yet, because the very nature of parliamentary democracy makes the executive more a part than a counterpart of the legislature, the constitution excludes specific offices from the definition of ‘office of profit’ in Article 66(2A).[159] The judiciary, conversely, is placed in an entirely different position. The constitution requires that judges, dur- ing their term of office, remain above inducement and the hope for future employment.[160] Hence, instead of applying any ‘office-of-profit’ threshold, the

Footnotes

[156]. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutional- ism (Cambridge, MA: Harvard University Press, 2004), 169–210.

[157]. Muhammad Golam Rabbani, Constitution of Bangladesh: An Easy Reader (in Bangla) (Dhaka: Samunnoy, 2008), 139.

[158]. Supra note 18, Article 66(2)(dd).

[159]. Because of this provision, a member of parliament may hold an office such as that of prime minister, minister, deputy minister, or minister of state simultaneously with his parliamentary office.

[160]. Shaukat Mahmood and Nadeem Shaukat, Constitution of the Islamic Republic of Pakistan 1973 (Lahore: Legal Research Centre, 1996), 1062.

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original Constitution of 1972 precluded judges from holding ‘any other office or post whatsoever’ during both the continuance of their service and after retirement.[161] The identity and status of the Supreme Court as an indepen- dent organ of the state thereby was safeguarded. Article 99 provided that a person who has held an office as a judge would not be appointed in any other service of the Republic.

Unfortunately, this provision was retailored in 1975 by Justice A. S. M. Sayem, the then-CMLA. The embargo was partially lifted by making a retired judge eligible for appointment in ‘judicial or quasi-judicial offices’. Article 99 was redrafted to prohibit judges from accepting any ‘office of profit’ in the service of the Republic ‘not being a judicial or quasi-judicial office’. [162] Introduction of the ‘office-of-profit’ criterion in place of ‘any office or post what- soever’ for judges has unnecessarily dragged Article 66(2A) into the judiciary. The introduction of the office-of-profit criterion, commonly used to preserve legislative independence, opened a ‘Pandora’s box of political favoritism’ for judges. [163] In that case, a partisan legislator and a Supreme Court judge were subjected to the same test of disqualification, which meant the opening up of several privileges during and after tenure. The executive thus could favor an ‘acceptable’ judge of the Supreme Court to the same degree that it may shower benefits and privileges on a politician. All that was needed was to show that a particular post is not an ‘office of profit’. It is easy to keep out even lucrative and executive-sponsored constitutional posts from the purview of this disqualification through measures including a different mode of appointment to those offices, greater job security, and apparent functional independence. [164]

Additionally, the ‘judicial or quasi-judicial’ requirement for the office in question has done nothing to provide impartiality. In Anwar Hussain Chowd- hury, Justice Shahabuddin Ahmed contemplated that under the color of ‘quasi- judicial office’, judges may be appointed to executive offices as well, something that was to emerge as painfully true in the future. [165] Political life in Bangladesh has witnessed many instances of judges holding non-judicial offices such as the CEC, Chairman of the Anti-Corruption Commission, and Chairman of the Law Commission, describing them as quasi-judicial offices. In the recent past, judges have been rewarded not only after their retirement but also during their tenure in the Supreme Court. The appointment of Justice Abdur Rouf

Footnotes

[161]. Supra note 18, Articles 147(3) and 99.

[162]. This Article was amended by the Second Proclamation (First Amendment) Order of 1975.

[163]. M. Jashim Ali Chowdhury (2006), “Judiciary and Dilemma of ‘Office of Profit’: A Pandora’s Box,” The Chittagong University Journal of Law, 11: 61.

[164]. Abu Bakar Siddique v. Justice Shahabuddin Ahmed, 17 BLD (1997) (HCD) 31.

[165]. Anwar Hussain Chowdhury v. Bangladesh, 1989 BLD (AD) (Spl) 1, para. 365.

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and Justice M. A. Aziz as CECs during their tenure severely tarnished the image of Supreme Court judges.

In December 1990, Justice Md. Abdur Rouf, then a Judge of the High Court Division of the Supreme Court of Bangladesh, was appointed the CEC of Bangladesh.166 In 1994, however, he was faced with the COP movement for his allegedly controversial and partisan role during the Magura-2 by-election to parliament. Ultimately, he was forced to resign in 1995 and was reappointed as a judge of the Appellate Division of the Supreme Court of Bangladesh. This promotion of Justice Abdur Rouf was seemingly a reward for his ideological inclination to the then-ruling party. His new appointment was challenged [167]; although the petition failed on narrow technical grounds, his return to the Supreme Court was criticized by lawyers who boycotted his bench for several months.

Another Appellate Division judge, M. A. Aziz, was appointed CEC in 2005.[168] The constitutionality of this appointment was challenged in Advocate Ruhul Quddus v. Justice M. A. Aziz. Because his political leaning with the ruling party was known to everyone, the High Court Division on this occa- sion asserted that the office of the Election Commissioner was anything but quasi-judicial. It also was argued successfully before the High Court Division that all ‘constitutional posts’ – including the presidency and membership in the Cabinet, the Election Commission, the Public Service Commission, the Ombudsman, and more – would be considered ‘offices of profit’ for Supreme Court judges. The result was that they may not be appointed to these offices either during their service in or after their retirement from the Supreme Court. [169] This assertion is supported by the retrospective validation of Justice

Footnotes

[166].  Nizam Ahmed, Non-Party Caretaker Government in Bangladesh Experience and Prospect (Dhaka: University Press Limited, 2004), 68.

[167]. Shamsul Huq Chowdhury v. Justice Md. Abdur Rouf, 49 DLR (1997) (HCD) 176. Although Justice Abdur Rouf ’s accession to the office of CEC was not challenged, this time his reap- pointment to the Appellate Division did not go unchallenged.

[168]. Justice M. A. Aziz was appointed CEC while he was a sitting judge of the Appellate Division. He did not resign from his post.

[169]. Advocate Ruhul Quddus v. Justice M. A. Aziz, 60 DLR 2008 (HCD) 511, para. 264. Although the term ‘constitutional post’ is not used or defined in the Constitution of Bangladesh, the political, administrative, and judicial offices specifically mentioned therein are termed so in popular use. These are the posts and offices that the tenure and the privileges of which are constitutionally secured. The persons holding these posts are not removable therefrom without either a special majority in the parliament or following a stringent process of inquiry and recommendation by the Supreme Judicial Commission. The Commission is formed under the express instruction of the president and is composed of the chief justice and two other senior-most judges of the Appellate Division of the Supreme Court of Bangladesh. Other than the constitutionally mentioned offices, some offices established by special parliamentary statutes are given the same protections as the constitutional offices, including the Anti- Corruption Commission and the Human Rights Commission.

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Shahabuddin Ahmed’s accession to the presidency in 1991 while he was the incumbent Chief Justice of Bangladesh. The legislature considered the office of the president to be an office of profit for a sitting chief justice and therefore strove for a constitutional amendment to validate the extraordinary events.[170] Thus, it was concluded that a sitting judge of the Supreme Court is prohibited from holding any other office of profit, including constitutional posts such as adviser to the caretaker government or member of the Election Commission, during the continuance of his service in the Supreme Court. With this note of disapproval, the Court highlighted that the arrangements it found impermissible would help no one – not the Supreme Court or the executive and, above all, not the people.[171]

As noted previously, the introduction of a retired chief justice–led caretaker government struck a decisive blow to the independence of the judiciary. Since installation of the system, not a single judge has been appointed to the Supreme Court without inquiring into his political and ideological background.[172] Before 1998, 101 additional judges were appointed in the High Court Division of the Bangladeshi Supreme Court, of whom only 7 were refused appointment on a permanent basis. In contrast, almost 59 percent (i.e., fifteen of thirty-one) of the additional judges appointed by the AL government coming to power after 1996 were dropped by the BNP–Jamat alliance government of 2001 – despite a positive recommendation from the chief justice regarding their performance as additional judges.[173] The BNP–Jamat government in turn appointed forty-five additional judges and confirmed forty-two.[174] Of the dropped three, one was removed by the president on allegations of corruption and another resigned after confirmation of an allegation that his law-degree certificate was forged. Only the third judge was not confirmed due to the absence of the chief justice’s recommendation.[175]

Not only the additional judges and permanent judges of the High Court Division but also the judges of the Appellate Division were appointed in

Footnotes

[170]. The Constitution (Eleventh Amendment) Act of 1991.

[171]. Supra note 169, para. 296–301.

[172]. Idrisur Rahman v. Bangladesh, 60 DLR (HCD) 714; per Justice Sultana, para. 46.

[173]. Idrisur Rahman and ors v. Secretary, Ministry of Law, 61 DLR (2009) (HCD) 531. Usually, judges in the High Court Division of the Supreme Court are appointed on an ad hoc basis for two years. After a two-year apprenticeship, an ad hoc judge – constitutionally designated as additional judge – is ‘confirmed’ to the High Court Division by the president on a positive recommendation of the chief justice.

[174]. One of the appointees had been enrolled as an advocate in the Supreme Court for ten years without any active practice. It is important to note that she was the daughter of a sitting legislator from the government’s party, who happened to be the chairman of a parliamentary standing committee. Two other appointees were active members (in the position of Rokon [financial contributors]) of Jamaat-E-Islami.

[175]. Supra note 173, paras. 37 and 38.

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line with political affiliations. Violation of seniority became the norm rather than the exception within the Appellate Division. No single chief justice was appointed without calculating the future possibility of becoming the chief adviser. As Chief Justice A. B. M. Khairul Hoque observed in Abdul Mannan Khan v. Bangladesh, after the introduction of the caretaker government system in 1996, the fifteenth, sixteenth, and eighteenth chief justices were promoted to the Appellate Division superseding their senior colleagues in the High Court Division, whereas the thirteenth, fourteenth, sixteenth, seventeenth, and nineteenth chief justices superseded their senior colleagues in the Appellate Division at the time of their appointment.[176] Such rampant politicization of judicial appointments led a Supreme Court judge to compare the process with the ‘archaic nineteenth-century rule of master and servant’.[177]

It is under these circumstances that the Appellate Division of the Supreme Court in Abdul Mannan suggested the adoption of a legislature-led govern- ment during elections. The interim government, as proposed by Justice Haque, would be formed by dissolving the existing parliament, restructuring and slim- ming down the incumbent Cabinet, or inducting to the Cabinet new members of parliament who represented the major political parties and were not seek- ing reelection in the ensuing race.[178] This, of course, was to be a measure complementary to the fullest empowerment of the Election Commission as the key player in election affairs. The Election Commission would remain in complete control of the electoral machinery and matters ‘directly or indirectly’ involved with the process. [179]

CONCLUSION

For almost two decades of post-autocracy Bangladesh, politics has been in search of the best possible way to ensure a free, fair, and periodic system of elections. A sui generis system of caretaker governments was installed with overwhelming popular support. After minor initial success, this system left an excessively politicized bureaucracy and an exposed judiciary, ultimately paving the way for another military intervention in politics. Although the system of caretaker governments has been scrapped, the reaction of opposition political forces seems to circle around the arguments of 1994, without heeding the failures and defects of the system that have been revealed over time.

Footnotes

[176]. Supra note 117, 313.

[177]. Supra note 173, per Justice S. K. Sinha, para. 206.

[178]. Supra note 117, 339.

[179]. Ibid., 337.

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Although a concretized formula of reforms in the Election Commission’s power structure could be devised and advocated, the opposition parties in Bangladesh remain adamant in not moving beyond the 1994 formula of con- ducting elections. The most recent national election of January 5, 2014 (election to the Tenth Parliament), therefore, restaged the February 15, 1996, show: another non-participatory national election. This time, however, the BNP boycotted the election and the AL secured a landslide victory. Bangladesh thereby has completed the full cycle of experiments with caretaker government. The election of February 15, 1996, led to a violent movement for initiation of a new experiment. The election of January 5, 2014, has led to a fresh round of political violence for “revival” of the already failed experiment.

Although the failure of the caretaker-government model might be attributed to the conditions of Bangladeshi politics, it also is important to note that the 1996 formula represents a failure of constitutional design and institutional imagination in two different yet important ways. First, by saddling the judiciary with the additional and onerous responsibility of overseeing governance during the election phase, this formula completely toppled the delicate constitutional balance. The initial standing of the Supreme Court in upholding this formula and observing that free and fair elections are a part of the constitutional system’s basic structure failed to realize that this was not so much a question of constitutional values as one of constitutional design.[180] There is no doubt that the transparency of elections is a key factor in determining the democratic character of the polity in question. However, the deeper question is: Should a body designed to address questions of a fundamentally different kind and by virtue of its role – meant to be secured from any possible political interference or influence over its functioning – be asked to ensure operational transparency through the supervision of elections? The Bangladesh experience seems to clearly teach otherwise.

The second failure is the weakening of the Election Commission, an institution designed to actually ensure on-the-ground transparency. Would it not have been better to redress the inadequacies in its functioning as soon as they began to appear instead of continuing with a system that was meant only to confer legitimacy on military rulers? By focusing on the creation of parallel institutions that seemingly matched the executive in terms of stature, Bangladesh considerably weakened the constitutional body that was originally entrusted with the task of ensuring free and fair elections. [181]

Footnotes

[180]. Supra note 107.

[181]. India may serve as an interesting comparative example on this major point. On public institutions in India and on the obsession with creating new institutions rather than remedying  existing ones, see Devesh Kapur, “Explaining Democratic Durability and Economic Perfor- mance: The Role of India’s Institutions,” in Devesh Kapur and Pratap Bhanu Mehta (eds.), Public Institutions in India: Performance and Design (New Delhi: Oxford University Press, 2005), 28–77.

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Whereas constitutionalism requires circumspection, caution, and a long- term vision on the part of the body politic, the short-term benefit-oriented electoral politics of Bangladesh has done considerable damage to the nation, with the judiciary being most affected. The entire saga of caretaker governments represents instability in Bangladesh’s constitutional system in the deep- est sense: different actors cannot agree over how the basic principle of democratic politics will be policed and how the winners and losers of the system will be determined. This task is ultimately one of implanting the democratic idea and of determining the conditions that make democracy possible. It is difficult to believe that such an enterprise is possible without political leadership; in some ways, Bangladesh is a striking example of why this dilemma cannot be resolved through the formal lens of legalism and the adoption of a particular constitutional system. It is, above all, a tragic reminder of how a formally writ- ten constitutional text might fail to nurture the values of constitutionalism. As the former Chief Justice of Bangladesh, A. B. M. Khairul Haque, stated:

It should be remembered that the ingrained spirit of the Constitution is its intrinsic power. It is its soul. The Constitution of a country is its source of power. It is invaluable with such soul. It [helps] a nation move forward. But if the said spirit is lost, the Constitution becomes a mere stale and hollow instrument. Without its life and force, it becomes a dead letter.[182]

Footnotes

[182]. Shamima Sultana Seema v. Bangladesh, 57 DLR (2005) (HCD) 201, para. 108.

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Waheeduzzaman, A. N. W. “Caretaker Government: Round Three.” The Daily Star, Law and Our Rights, January 28, 2007.

© Tushnet, Mark; Khosla, Madhav, Sep 17, 2015, Unstable Constitutionalism: Law and Politics in South Asia Cambridge University Press, New York, ISBN: 9781316420461