Transition from Interim to Caretaker Government – A Constitutional Challenge

Opinion

The non-party caretaker government (CG) system of Bangladesh was introduced on 28 March 1996 through the passage of the 13th amendment to the constitution. The system was formed  with specific job description of holding next three consecutive parliamentary elections in Bangladesh. The necessity of the amendment came into act when all parties other than Bangladesh Nationalist Party boycotted the national election under Begum Khaleda Zia’s government.

Following this amendment, three national elections were held in 1996, 2001 and 2009. As the time intervals themselves suggest that while ’96 and ’01 elections went in predicted way, the ’09 election took place in a disarrayed situation even under CG system. With this background, the amendment was declared illegal on 10 May 2011 by the Appellate Division of Supreme Court on the ground that no form of extra-constitutional system of government should exist for any reason whatsoever and for Bangladesh to move on to a firm democratic system, elections should be held under elected government like other democratic countries elsewhere.

Following this verdict of the Appellate Division, the 15th Amendment to the Constitution of Bangladesh was passed in the parliament on June 30, 2011 abolishing the CG system. After this amendment, three elections were held in 2014, 2018 and 2024 which were not fully participatory and were controversial.

On 05 August, Sheikh Hasina’s regime of 15 years ended amidst a mass uprising by a so-called Anti-Discrimination Movement  platform.(ADM) Noble Laureate  Dr. Yunus was then flown in from Paris to take over the Chief Advisor position of an Interim Government of Bangladesh on 08 August 2024. On 17 December 2024, the Supreme Court (SC) of Bangladesh declared the 15th Amendment illegal in response to writ petitions put forward by several quarters. However, the 17 December declaration by the SC is not enough to bring the CG system back again until the Appellate Division’s verdict that declared the 13th amendment illegal is made void.  The hearing to a writ petition for this is likely to be held on19 January 2025. It is expected that the Supreme Court will give verdict in alignment of the people’s desire, i.e. hopefully the last hurdle towards restoring the non-party caretaker government system will be removed.

At this stage, the obvious talking point is how transition will take place from Dr. Yunus’s interim government (IG) to CG. It must be noted that formation of Yunus’s IG is controversial in the eyes of law for two reasons:

REASON 1:
There is no proof of Prime Minister Sheikh Hasina’s resignation anywhere. The incumbent President Shahabuddin Ahmed himself told to a journalist in an interview that he had never received any letter of resignation from Sheikh Hasina before she was air lifted to India by Bangladesh Army for her safety. Although President Shahabuddin’s statement created lot of buzzing in the IG and ADM platform,  none could show any resignation letter of Sheikh Hasina until today. They should have made the document public for transparency of the raised issue. Now, this means that Sheikh Hasina can still claim her office as Prime Minister according to Article 57 of the Constitution of Bangladesh :
57. (1) The office of the Prime Minister shall become vacant–
(a) if he resigns from office at any time by placing his resignation in the hands of the President; or
(b) if he ceases to be a member of Parliament.
(2) If the Prime Minister ceases to retain the support of a majority of the members of Parliament, he shall either resign his office or advise the President in writing to dissolve Parliament, and if he so advises the President shall, if he is satisfied that no other member of Parliament commands the support of the majority of the members of Parliament, dissolve Parliament accordingly.
(3) Nothing in this article shall disqualify Prime Minister for holding office until his successor has entered upon office.

In continuation of Article 57 and no proof of her resignation, it becomes obvious by that all her ministers may also claim their offices according to Article 58(4) of the constitution:
58(4) If the Prime Minister resigns from or ceases to hold office each of the other Ministers shall be deemed also to have resigned from office but shall, subject to the provisions of this Chapter, continue to hold office until his successor has entered upon office.

REASON 2:
There is no provision of any Interim Government in the Constitution of Bangladesh.  Considering the political reality and country’s law and order situation, the President sent for opinion of Chief Justice of the SC whether an IG could be formed or not. Clearly, he did it according to Article 106 of the constitution:

106. If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.

Unfortunately,  although a senior lawyer of the SC placed a writ claiming a copy of the opinion given by the bench, nothing has been made public until today. Therefore,  formation of IG remains more a reality than a constitutional or procedural correctness.

Under these circumstances, if CG system is restored to conduct the election within 90 days of its formation, the President may have to dismiss the current IG. It must be remembered while the Advisors of IG were appointed by the students of ADM platform (as repeatedly mentioned by Dr. Yunus), the Advisors of CG shall have to be nominated by the stakeholders,  i.e. the political parties. In the three CGs formed in ’96, ’01 and ’09, the names were proposed by the political parties for one Chief Advisor and Ten Advisors. The incumbent President then appointed the Advisors from the proposed lists. Hopefully,  the same procedure will be followed this time as well.

Well, there is another issue involved with the process. For a safe and smooth transition from IG to CG and to provide  time for Election Commission and political parties to prepare for the 13th National  Election, an interface may be required in the form of 120 days of State of Emergency. Article 141A(1) empowers the President to declare an emergency as follows:

141A. (1) If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency for one hundred twenty days,
provided that such Proclamation shall require for its validity the prior counter signature of the Prime Minister.

Now, in absence of any Prime Minister within the territory of Bangladesh,  obtaining prior counter signature will be an issue for the President to proclaim an emergency.  Under this circumstance,  he may again seek opinion from the SC under Article 106 and move on. Of course, meanwhile, if Sheikh Hasina returns to Bangladesh from exile and claims her office even from jail, the whole math may take a completely new course!

-Tawfiq Hassan