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Refuctians ix
Preface xi
tuobgue xv
Fart I
The Caretaker Notion: Genesis 1
Part ll
The 1996 Caretaker Govemment at Work 113
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Reflections
We eventually struck on the idea of preparing one, not too fanciful, but
based on another writing ofthe author dating back to 1994. Therefore,
rather than presumptuously conjuring up an 'introduction'to filI the
perceived textual gap, it was thought more appropriate to introduce the
reader to these papers through a summary of that particular writing of
BarristerAhmed's that better encapsulates the political context against
whieh the events described in the papers in Parts-I and II occurred.
That piece in Bangla features as Appendix A to Part-II of the book.
That which I have had to produce as a summary thereof is featured as
a Prologue in the book and is intended to come across as what I see as
the author musing on the challenges that lay in 1994. It is hoped that
this exercise will have served the intended purpose of the reader
getting introduced to the contents ofthe book in general and the subject
matter of the paper in Part-I in particular with greater ease than may
otherwise have been the case.
As much as this publication has been a collective effort, I acknowledge
the tireless efforts of one individual, in particular, initiated into the
process very early on, i.e., at the instance of Barrister Syed Ishtiaq Ahmed
himself. As a young associate of Syed Ishtiaq Ahmed & Associates,
Barrister Imtiaz Uddin Ahmad fuif became the amanuensis of his mentor
BarristerAhmed, and much of what appears in the book is attributable
to Barrister Asifs tireless efrorts in transcribing what was dictated to
him by Barrister Ahmed over countless hours. The enduring vision I
have of the two is of a determined Cicero and his loyal Tiro ceaselessly
at work.
I am deeply gatefut to Mr. Mohiuddin Ahmed whose unwavering
belief in the need for the publication, and as urged on my mother Dr.
Sufia Ahmed and myself on many occasions since Barrister Ahmed's
demise, has been a constant source ofinspiration behind this exercise.
It is also gratifuing to note that the book marks the continuation of an
otherwise long and productive relationship that my family has shared
with LIPL.
In this regard, I am also appreciative ofthe renewed opportunity I
have had to work with Babul Chandra Dhar of UPL.
I would be remiss in not expressing my indebtedness to Imtiaz Ahmed,
Assistant Professor, Department of Islamic History and Culture, Jagannath
University, Dhaka and Muhammad Humayun Kabir, Lecturer, Department
of Islamic History and Culture, University of Dhaka for their prompt
assistance in getting some of the material ready for publication.
The Ishtiaq Papers
Others whom I have relied upon variously at all odd 5o*s in this
enterprise include members of my staff Muhammad Golam Hossan,
Md. Akteruzzaman Khan, andAbdulAlim and BarristerAsifs adminis-
trative assistant Sirajul Islam. I thank them for all their assistance.
Thanks also to the Bangladesh Institute oflaw and InternationalAffairs
for unhindered access to its newspaper archives.
Lastly, I take the liberty to dedicate the book to my late paternal
grandparents, Tabserunnessa and Syed ZafarAhmed. The author, I am
confident, would have approved.
1994. TIte nation q.wq.its its deliuerance. The promise of free and fair
elections remains, as et)er, illusory. The nation has been ill serued for
far too long by the culture of brute force and internecine street agitation
replacing politics by robust debate and honest dialogue as uehicles for
strihing political bargains. The tactics of boycotting the legislature,
procliuity to reckless and uituperatiue attach,s and retorts, and the use
ofthe well-oiled state enterprise for election engineering does not bode
well for the future of democracy. The concept of a caretaker gouernment is
fundamentally one of a mechanism for extrication from this quagmire.
Those laching in political anointment and remaining politically
unaffiliated may neuertheless come in aid of that process of extrication
and are willing so to do ecen giuen the real prospects of facing a short
shrift in that effort. In the alternatiue let the key political players
themselues seeh a resolution b1' dialogue and campromise. It is imperatiue
that they do so, hau'eter arduous tfu process. That is the dernand of
the day. The demand is for fiee and fair elections, leading to good
gouerna.nce, that has elurieC the dau'ntrodden and the meeb for far too
long. They now demand tkelr iei.i:-'erance.
Part I
the Caretaker Notiou: Genesis
IIEBRON: TIIE BACKGROTIND OF THE BOYCOTT
and written over and again about the CEC being mandated by the
Constitution to supervise and conduct elections. He has all the powers
even beyond law to do all that is necessary in the ends offree and fair
election. So long as he does not act arbitrarily, or do anything that is
prohibited by law, his actions are immune from challenge. The Appellate
Division of the Supreme Court made a bold judicial assertion of principles
regarding judicial review of the decisions of the CEC both at the
intermediate stage and after the declaration ofresult ofa candidate in
the case of A.F.M. Shah AIam us. Mujibul Haq & ors. (41 DLR 6D)
(1989) 68). At that time more than 4000 cases had come up before the
High Court Division. The corridors and rooms of the Court used to be
crowded by the Union Parishad Chairmen and their supporters. Eventually
a bunch of cases that had gathered in the Appellate Division came up
for hearing. At the hearing the principles were canvassed by me and
accepted. That made judicial history. Unfortunately in a later decision
Altaf Hussain vs. Abul Kashern (45 DLR (AD) (1993) dB) while the
principle was enunciated rightly, yet in its application to the facts the
Court appears to have inhoduced an element of uncertainty in the field
of election laws. These were local government election disputes. Yet the
matter was of great public importance in view of the fact that these
institutions, their representative character, and their functions and powers
are all mandated by the Constitution itself. Upon an authoritative
pronouncement from the Appellate Division of the Supreme Court the
law would have borne that hellmark of certainfy that would enable the
legal practitioners to advise correctly, and the Election Commission and
Election Tribunals to decide cases rightly and justly. This is yet to be
accomplished.
The Opposition demanded cancellation of the election. Once the
CEC declared the result the Government or the Parliament could not
have set it at naught. The crisis gathered more cloud, which became
darker and in the end electrically charged.
The boycott continued. After Magura a new demand was added. The
Opposition asked the Government to introduce a Bill to amend the
Constitution providing for holding at least three future Parliamentary
elections under a CaretakerGovernment. At the beginning it was a vague
and nebulous concept.
It was unprecedented that the ruling party in a sense was being
ordered to bring a bill for constitutional amendment in fulfilment of the
Opposition's demand. It was not a healthy democratic precedent.
6 The Ishtiaq Papers
CARETAKER GOVERNME}]II
was the 85th consecutive day of absence when the ruling was announced in
Parliament on 23 February L995. (Note: The full text of the Speaker's
Ruling is appended as Appendix A.)
Under the Indian Constitution there was a similar provision regarding
resignation of the members of Parliament. The resignation became
effective from the date the member addressed his letter of resignation
to the Speaker. Could the latter have enquired whether the letter had
been obtained by fraud or force? The position was not clear. Yet this was
answered in the affirmative in two reported cases, i.e., Thankamma u.
Speaker, T-C Assembly (NR 1952 Tfauancore-Cochin 166) and, Surat
Singh u. Sudama Prasad (NR 1965 Allahabad, 536). The Indian Constitution
was amended in 1974 that confirmed the prevalent view. The statement
of Objects and Reasons was as follows:
'Articles 101(3Xb) and 190(3Xb) of the Constitution permit a member of either
House of Parliament or a member of a House of the Legislature of a State to
resign his seat by writing under his hand address to the Speaker or the
Chairman, as the case may be. In the recent past, there have been iastances
where coercive measures have been resorled to for compelling members of a
Legislative Assembly to resign thet membership. If this is not checked, it
might become difficult for Legislatures to function in accordance with the
provisions ofthe Constitution. It is, therefore, proposed to amend the above
two Articles to impose a requirement as to acceptance of the resignation by the
Speaker or the Chairman and to provide that the resigrration shall not be
accepted by the Speaker or the Chairman if he is satisfied after making such
inquiry as he thinks that the resigrration is not voluntary or genuine."
The amended Article of 101(3Xb) of the Indian Constitution is as
follows:
"101(3) If a member of either House of Parliament -
(a).......
(b) resig:ns his seat by writing under his hand addressed to the Chairman or
the Speaker, as the case may be, and his resipation is accepted by the Chairman
or the Speaker, as the case may be, his seat shall ffisrcupoa become vacant:
Provided that in the case ofany resignation referred to in sub-clause (b), if
from information received or otherwise and after makirg such enquiry as he
ihinks fit, the Chairman or the Speak:r, as the case may be, is satisfied that
such resignation is not voluntary or genuine he shall not accept such resignation."
gives the latitude too but limited to less than 90 days. On the 90th day
it is all over. When it is en masse boycott, one cannot read into the
Constitution a reward for the group for a determined move to disable
the Parliament. Such a contention was raised in the President's Reference
to the Appellate Division of the Supreme Court and this is what the
Court said:
"The foundation of the system of parliamentary democracy is that the
constituents are at all times represented in the House by their representatives.
In the case of a member or members who remain absent for ninety consecutive
sitting days without the leave of the Parliament they will have to pay penalty
by vacating his or their seats because he or they are not performing his or their
paramount duty of representing his or their constituents. If that be the true
intent ofthe Constitution-makers and we can find no other intent then why
should the same result not follow when a group of members (may be party
wise) abstain from attending Parliament as above? If not representing the
eonstituents by one member bears a penalty why should there be reward if it
is done by a group of members belonging to a party or parties? that it will be
onerous for holding by-election if such a large number of seats fall vacant at a
time is no ground for giving a twisted and laboured meaning to the word
"absent" because in that case the Court will permit a whole body of people to
lspain uru'splssented in the parliament which instead ofupstaging a nascent
democracy (which Mr. Ktran wants us to do by deeming the absent members as
present by a process ofconstruction) will end in the burial ofits first principle.
Ib act according to democratic norms is a trust which has been reposed upon
all sections oftbe Parliament "'d what is called democratic culture is required
to be practised by all those who are in the business of politics. The Court
cannot resolve political rfitrculties by putting an artificiat meaning to a
particular word or provision in the Constitution-"
A few days later on 3 July 1995 after I returned from the Court to
my room at the Bar Association during midday recess for lunch, Mr.
Abdul Wadud Khondkar, the Additional Attorney-General, came to my
room holding a bunch of folded papers. He said this was the Reference
and the Law Minister wanted me to see this. I was taken aback. The
Law Minister never discussed this with me and we were not on such
friendly terms that he could have even made such a request. Having
regretted my inability to look through the draft of the Reference, I told
Mr. Khondkar the Law Minister could have talked to me if he had so
wished. The Reference was sent to the Appellate Division of the Supreme
Court the next day, that is, on 4 July 1995.
This was the first Reference under the Constitution. The Law Ministry
committed an error in addressing the Reference. The Supreme Court of
Bangladesh (Appellate Division) Rules 1988 in Part VI by Order XXVil
Rule 1 provides for service of the order of the President making a Reference.
The Rule reads as follows:
"1. On receipt by the Registrar of the order of the President referring a
question of law to the Court, the Registrar shall give notice to the Attorney-
General of Baagladesh to appear before the Court on a day specified in the
notice to take the directions ofthe Court as to the parties who shall be served
with notice of the Special Reference, and the Court may, if it considers it
aesimltq order that notice ofthe Special Reference shall be served upon such
parties as nay be named in the order."
The Law Minisky, as was evident, did not know this Rule. The
Reference was sent to the ChiefJustice. The Chief Justice passed on the
Reference to the R€gishff the next day and on 6 July in the presence of the
Attorney-General, the directions of the Court were made. This is mentioned
in the opinion of the Chief Justice on the Reference.
In their anxiety to keep aloof from the political controversies which
were then raglng outside, the Court kept the hearing confined to the
submission to be made by the "constitutional experts" at the Bar. To avoid
any impression being created about the Court prolonging and thereby
adding to the political crisis, the Court decided to dispose of the matter
with the utmost expedition. The directions made on 6 July bring out
clearly both these concerns ofthe Court.
I appeared as an amicus curiae in the Reference. Here for the present I
set out the questions and the answers.
The Ishtiaq Papers
The Questions
(1) Can the walkout and the consequent period of non-return by all
the opposition parties taking exception to a remark ofa ruling parby
Minister be construed as 'absent'from Parliament without leave
of Parliament occurring in Article 67(1Xb) of the Constitution
resulting in vacation of their seats in Parliament?
(2) Does boycott of the Parliament by all members of the opposition
parties mean 'absent' from the Parliament without leave of
Parliament within the meaning of Article 6Z(1Xb) of the
Constitution resulting in vacation of their seats in Parliament?
(3) Whether ninety consecutive sitting days be computed excludi.g
or including the period between two sessions intervened by
prorogation of the Parliament within the meaning of Article
67(1Xb), read with the definition of 'sessions' and 'sittings' defined
under Article 152(1) of the Constitution?
(4) Whether the Speaker or Parliament will compute and determine
the period of absence?
TheAnswers
We are of the opinion that the answers to questions Nos. 1 and 2 are in
the affirmative subject to computation of ninety consecutive sitting
days. As t9 question No. 3, our opinion is that the period between two
sessions intervened by prorogation of the Parliament should be
excluded in computing ninety consecutive sitting days. As to question
No. 4 our oilinion is that it is the Speaker who will compute and
determine the period of absence. Let this report be communicated to the
President immediately.
When the Reference was made on 4 July 199b, ninety conseeutive
days ofabsence without leave had already taken place. The Court counted
walkout - boycott days and found 101 such consecutive days.
(Note: The Opinion of the Supreme Court in Special Reference No. 1
of 1995 and as reported in 47 DLR (AD) (1995), 111 is append,ed. as
Appendix B)
If the Speaker's ruling was wrong the resignations were effective
and counting ofdays ofabsence without leave was futile, or at best an
academic exercise. If the ruling was correct then only counting of
absent days would have been a meaningful exercise. The ruling of the
Speaker was announced in Parliament on the 8bth day of absence.
The Caretaker Notion: Genesis 13
THE'ISHTIAQ FORMULIt'
By then the two sides were arrayed face to face with irreconcilable stands.
The Opposition demanded general elections under a Caretaker Government
that meant a neutral non-partisan Government. The ruling party agreed to
resolve the crisis but only within the framework of the Constitution'
Additionally, the only other concession made by the Prime Minister was
that she would resign 30 days before the polling at the general elections.
There was general concern in all classes of people about the impending
crisis. From all conceivable quarters there were exhortations for the
parties to start a dialogue and arrive at a negotiated settlement. The
diplomatic circle was exerting their good offices, making sincere efforts
to resolve the crisis aad were seen and heard in their go-between and
counselling roles.
The gloom anil dejection pervaded the city and the inhabitants' They
had resigned to their fate. The inexorable political machine kept grinding
on. Every one suffered.
At a Seminar at the Jatiya Press Club on 28 July 1995 organized by
the National Democratic Foundation (NDF) I was invited to be the chief
guest and was asked by the organisers to speak on the prevailing political
impasse and suggest a solution (Th.e Daily Star, 29 July 1995). At this
Seminar I made a proposal to resolve the crises. Soon it caught the eyes
of many and attracted many enlightened attentions. The suggested
solution began to be mentioned in the press as the "Ishtiaq Formula."
On l August l-995 I elaborated the proposals in writing and sent signed
copies to the Prime Minister and some other of her party stalwarts, the
Speaker Sheikh RazzakAli, and also to Sheikh Hasina who was then
in London, Mr. Abdus SamadAzad and a few other leaders of her party
and to the press. The next day the newspapers published the text ofmy
14 The Ishtiaq Papers
The instant reactions were those of the Speaker and ruling party
Secretary General. They both wanted a complete formula, or as we call
it in our procedural law parlance "further and better particulars." (?he
Daily Star and The Banglad,esh Obseruer, 2 August lgg|)
It appeared from the press reports that the PM and her party
colleagues discussed the formula on 2 August 1995. They found *flaws"
in the formula, but did not elaborate.
By and large the press received the formula well and reacted during
the days to come positively and objectively. The public opinion favoured
the formula. The parties were cautious, having been confronted with such
a thing suddenly. One would not expeet them to receive it warmly. Hasina
was, however, a little unkind and intemperate. She reacted by saying
that formula is not a thing floating in the air that we could catch it. This
was on TAugust 1995 when she returned from London. (Janakantha,
7 August 1995)
The Bhorer Kogoj published an exclusive interview with me in the
issue of 8 August 1995. (For a sumrnarised. version, see Bhorer Kagoj, 8
August L995)
As days passed by Dhaka had been returning to its old tumults
witnessed during the anti-autocracy movement. Hartals, demonstrations,
rallies, meetings, violence, and destruction abounded. There was a
difference in that the autocrats ofearlier days were spearheading the
"democratic" movement as allies of the mainstream Opposition, and
must have been immensely relishing their new role. Hidden in their
hearts was the cry for "revenge". On the other hand, the Begum prime
Minister continued to make mistakes.
t
i
THE LAST EFFORTS
A group of 5 concerned citizens took upon themselves a self-assumed
i
role of making the very last effort at a reconciliation between the two
leaders. on 5 october 1995 a larger group of citizens met at the centre
for Policy Dialogue to review the prevailing political crisis and stalemate
over the issue of holding the general elections to Parliament. Except for
belonging to the larger constituency of citizens and communicating with
them in all different and varieties of ways none of the participating
citizens had any representative capacity. Yet they and their constituents,
the citizens of Bangladesh, shared a common concern over the gathering
political storm. The group of 5 formed at that meeting consisted of,
f
t
besides the author Mr. Justice Kemal Uddin Hossain, former Chief Justice
of Bangladesh, Prof. Rehman Sobhan, Faiz Ahmed and Fakhruddin
Ahmed.
The Group decided that the two leaders must know these concerns
and the Group must urge upon them that they should find an early
solution to the crisis.
The Group considered that they should meet the leaders with positive
and constructive suggestions that may assist them to bring forth a
satisfactory solution of the impasse.
By then two dominant concerns of either side had clearly emerged,
and these were as follows:
(a) The Prime Minister's categorical position was that she would
accept a solution within the framework of the Constitution and .a
would not accept any solution that conhavened the Constitution.
...
(b) The position of the Opposition led by AL was that the forthcoming ,t
The conclusion is now well known. Our initiative was a failure. Yet
there is a sense of suspense. It is not like watching a game already
played. The replay is not all that exciting, interesting though it may be.
Here the replay has the suspensie because the game has neither been
watched nor narrated.
When we started, the Opposition agenda looked very rigid. But
while negotiating we were impressed by the Opposition's flexibility and
willingness to give in to good sense and gtve up the rigidities to ensure
that the elections are freely and fairly held. Begum Zia, on the other
hand, appeared to be obstinate, stubborn, and as having intense mental
resistance not only to "caretaker" concept, but even to the word "caretaker"'
It was a difficult exercise to persuade her' We carried out the exercise
with some dexterity and caution. The last message that we carried was
the PMt willingness to discuss the caretaker issue. The turn of events
were dramatic and we all rejoiced to near celebration. But from the
evening till the time the news got to the press the hidden hands worked
and put the clock back. The exchange ofletters between the PM and the
AL President went a long way to subvert our efforts. Realising that the
futile exchanges must have raised quite naturally a credibility problem
in the minds of the Opposition and considering that we were unable to
persuade any more the Prime Minister to discuss or accept the concept
of a Caretaker Government even through by-election we decided to call
it a day. Our efforts so sadly came to an infructuous end. The results for
the Prime Minister were disastrous ending in electoral debacle.
The story must, however, be told.
The Caretaker Notion: Genesis 19
TIIE STORY
After the Group of Five was formed an early meeting with Begum Zia
was sought- The meeting was scheduled for g October 199b.
Begum Ziamet us with grace and dignity and with due courtesies.
She was alone, that is, without any aides. We spent two hours together.
Rehman Sobhan was the spokesman at this.first meeting. He started
offwell and expressed the concem ofthe Group regarding the prevailing
political crisis to the PM and need for an urgent solution. He said the
Group thought that my formula covered and met the view points of both
the ruling party and the Opposition and might provide a basis of a
meaningful dialogue. He then explained the essence of my formula, and
the PM listened with great attention. The discussion ensued. Begum
Zia dominated. To her the 'caretaker'concept was a taboo. we discovered
this within a few minutes of our meeting and we all looked at one
another, and passed the signals ofa cautious approach. we discovered.
soon thereafter that she would not accept that any person can be
"neutral". 'A child or mad person can be neutral" she observed. So this
20 The Ishtiaq PaPers
for five years. Secondly, she agreed to meet and discuss with the President
of AL with an,,open mind" the ways of finding a solution to the preveiling
crisis. When pointed out that these meant nothing in the ultimate
I
analysis, she said smilingly "I will like to wait and see the reaction of
the opposition party."
Questions were being asked why the PM had not been associating
her other party leaders in the parley? Privately we had been explaining
to them that we were discussing not with the PM but with the party she
headed. It was for her to involve or engage the other leaders. If the
leaders felt or thought that we were ignoring them that was great
injustice done to us.
The PM confrdently and emphatically asserted if the Opposition
boycotted the election, the BNP would proceed with the election under
the Constitution. What other alternative did she have, she asked. But
this was what we were in search of.
The PM adamantly avoided the question of discussing the possibility of
an acceptable non-partisan PM. She repeatedly said she had no further
concessions to make even if the opposition would not participate in the
elections.
This sounded to me an ominous and most dangerous mental
attitude reminiscent of Ershad's great logic repeatedly declared during
the anti-autocracy movement. In 1986 Ershad tasted democratic blood
after he roared though a paper tiger and walked into the Parliament
like a cunning fox. In 1988 he went it alone, and that was the scenario
that at once came up before my eyes when the PM said she would go it
alone. It is now well known that for the second time the folly met the
same fate. Hopefully, there will not be a third such blunder.
We were looking at one another dejectedly and signalling for
departing while the meeting was nearing to an end. Yet to our last
persuasion she abruptly replied: "Alright' I am ready to sit face to face
and discuss with her (Sheikh Hasina) with an open mind to find a
solution. Maybe through discussion something can come out-" It was a
very clear way of conveying to us, as we understood, the impression
that possibilrty of an agreement on a caretaker non-partisan PM was
not a closed chapter. She would not make a prior commitment, she said,
although sheikh Hasina could discuss the matter directly with her. At
this we called it a day.
The message, as we came out, was conveyed to the Opposition
through the communiqu6 of G-5 issued immediately after the meeting.
The Caretaker Notion: Genesis
ofthe cabinet, and all other issues relevant for ensuring a free and fair
election would be open for discussion, without any precondition attached.
The unanimity of the entire leadership including the AL President,
their sincerity and highly positive attitude on the criticality of securing
the PM's acceptance of the principle only of a neutral PM to run the
Caretaker Government were so convincing that it moved me immensely. At
the meeting almost every one of AL spoke, and conveyed the same
message and anxiety. At one point Abdus Samad Azad whom from my
student days I have looked upon as an elder brother, signalled at me to
come out of the meeting room, which I promptly did. He took hold of
both my hands, and said to me so movingly "I am old. I have spent
almost all my life agitating on the street; and a part of it for the war of
liberation. For how long more we are to do this? Is there no end to this?
Who will win in the elections, I don't know. But let there be a free and
fair election. Is that too much to ask for? I believe you can do this for
our people." My eyes were wet. In the light and shade of the night I did
not look at his.
In spite of the positive note of the meeting when I returned home I
had a heavy heart, and soon went to bed, and tossed and turned in
agony and fear that if the PM rejected this, there would be a deluge.
Why this foreboding thought tortured me I do not know upto this day.
But I know when it comes, it often happens.
When the communiqu6 issued with the approval of AL was published
the following day the dark hands, and the crooked minds, assessing in
retrospect, were activated. They say in political parties there are hard
and soft liners - the hawks and doves. They are everywhere and are of
bewildering variety.
The PM had left for New York to address the 50th Anniversary of
the UN. The message we had from AL could only be conveyed to her by
us on her return.
In the meantime letter exchanges promised by the PM were
imminent. This posed the gravest threat to the ongoing negotiations.
We made all out efforts to avert it. The events hereinafter described will
show that through the letters the writers had staged a coup de grdce.
We felt we were being pushed out.
While the PM was in New York, Rehman Sobhan had an informal
chance meeting with Hasina at a public function. This turned to be a
very important meeting. Hasina indicated that provided the PM accepted
the idea of a neutral non-party Prime Minister to head the Caretaker
The Caretaker Notion: Genesis
and sacrificed a lot, the opposition leaders and workers have been made
victims of persecution and harassment, many leaders and workers have been
jailed and there has been much bloodshed.
Not only that, the country is also in a grave social and economic crisis. The
deteriorating law and order situation, repression on women, terrorism, utter
insecurity of life and property, rampant cormption, severe food crisis, fanine
and the continuing rise in the prices of essentials have made people's life
unbearable.
Your letter makes no mention ofany agenda for talks on a settlement ofthe
current political crisis. Our people are not unaware ofthe bitter experiences of
meaningless time killing and aimless discussions of the past. We, along with
the democracy-Ioving people ofthe country firmly believe that only a non-party
neutral caretaker government can guarantee the people's right to vote, and
ensure a free and fair election. So, I request you to accept the concept of a non-
party neutral caretaker government for holding elections in order to achieve
political stability through free, fair and impartial voting and thus create a
conducive atmosphere for a dialogue. We can meet anyevhere aad at any time,
onee the atmosphere for a dialogue is created." the Doily Stor, 3 Nouenben
1995)
The letter writers on both sides did not give a good account of
themselves.
Senseless and futile as these two first letters were, they exacerbated
the situation. The climate for negotiations was becoming uncongenial.
Yet, in the gathering storm we trudged along with hope against hope.
In the meantime the country was in turmoil. The civil life was totally
disrupted. The streets were unsafe and insecure. The economy was
bleeding in every sector. International trade was at a standstill and was
coming to a halt. The largest single export - galments - was threatened
with broken contracts, late shipments, and otherwise l/C non-performances.
The costs and consequences were enormously staggering. Soon these
were to assume even worse dimensions and magnitude. The democratic
polity was witnessing precedents being set up in which a party in
opposition in future would find Parliament less useful than the street
in its ascent to capture political power. The parties had forgotten the
historic responsibility of building up parliamentary democratic
institutions after its restoration in 1991 with the sacrifices of all
sections and classes ofour people.
The PM missed her opportunity and frittered it away. The situation
did not demand much wisdom, but a little good sense. The party
stalwarts were pushing her to a position of no return, and regarding
election she was talking of going it alone. When the time came she did
The Caretaker Notion: Genesis 31
it. Who does not know that the February 1"996 general election was a
great democratic farce and left the people aghast. The party in power
drove the last nail in its coffrn. In a sense the ruling party was gradually
lodging the Opposition in power.
The beginning of the end was on 1 November 1995. On the afternoon
of that day the meeting of the G-5 as usual exclusively with the PM
took place. By then the PM had received the reply to her letter from
Hasina. The reply was terse and had no substance, and as I said before,
no more propitious than the letter of the PM to her. No cause was
advanced and the letters contributed nothing in improving the climate
for a fruitful dialogue between the two parties. The outcome of the G-5
meeting did not fare any better. It did not advance beyond the outcome
of the earlier meeting with the PM.
The PM was hiding a storm of anger and fury. We knew that the
meetingwas going to take place in an uncongenial atmosphere. The day
before the AL President in the statement widely published in the press
said if neutral government was formed the PM would not be arrested
for alleged crimes. Hasina's statement is quoted below;
-Ibe PM is not accepting the demand for caretaker government apprehending
+\at sbe will be sent tojail for corruption. I can assure she will not be sent to
p'-- flfu Daily St,,,,2A October 1995)
At the outset having told us about this statement the PM burst out
at the AL hesidmt" Quite forcefuIly she argued: "this is the kind of
neutral government she lSheikh Hasinal contemplated. The Government
will be one which she [Sheikh Hasina] will dictate." Our scheduled
meeting was all too well tnown- It passed sur semprehension why before
this meeting such vituperative statemeat was to'be made. Thank God
the PM did not break ofrfirrther discussion with us on that day or in
the future. We could not have endorsed the statement of the AL President
nor could we have nodded to the PM for her sharp reaction. We maintained
our cool.
Yet the PM that day showed remarkable tolerance, and left me
wondering why in power, with this great quality of toleration that is the
heart and soul of democracy, the democratic order had been crying in
the wilderness pitilessly. These cries left the longest echo and the loudest
noise. Democracy's heart was bleeding.
The PM was not responsive at all to Hasinat offer that neutral non-
party Prime Minister be elected through by-election in the manner
f
1
l
proposed by her. She dwelt on Hasina's reply to her letter. We could see
that the exchange of letters was beginning to have a negative impact on
our efforts. The PM would agree to the Opposition bringing in their 5
nominees to the interim government through by-election, but she did
not budge from the position that the interim government should be
headed by a ruling party sitting MP and five other MPs of her party be
in the government. The new PM was to take over as soon as she
relinquished the office, as committed, one month prior to election. Nothing
new came out. It was merely a repetition of the old stand.
At the conclusion of the meeting the PM reiterated her invitation to
the Opposition to suggest the name of a possible neutral non-party
Prime Minister.
Hasina agreed to meet us the very next day and we met on the
evening of 2 November 1995. In response to the request of the PM that
the Opposition name a candidate for the position of a neutral Prime
Minister, the AL side maintained that naming of a person was not the
answeE but the principle of such selection was to be established. llt"y
spelt it out and said that the neutral Prime Minister could be chosen
from any of the following persorui:
(a) Incumbent Chief Justice.
(b) A sitting judge of the Appellate Division of the Supreme Court.
(c) A retired Chief Justice or a retired judge of the Appellate
Division.
(d) An eminent citizen of the country.
The Opposition had so long identifred the sitting Chief Justice as the
Prime Minister. The proposed categorisation of the prospective sources of
the candidacy of the neutral Prime Minister indicated some flexibility. ,l
CONCLUSION
lte negotiations were not off to a flying start. Given a little lesser
dsdity in the position taken by the PM from the beginning, a
resolution of the crisis was within the reach.
In the days that followed, the strategies of the ruling party gradually
unfolded. The Parliament was dissolved. The general elections of the
style of 1986 were called and took place in February 1996. They had
thus their full term. In a one-sided election there was a resort to
rampant and open cormpt and unfair practices. When we found a
scramble for nomination seeking that was a foregone conclusion. The
members returned to Parliament by easiest wins as if they came
walking. The Opposition lost no time in denouncing the election and
terming the Parliament illegitimate. The election was a tremendous
impetus to the Opposition. The PM had so long launched the Opposition
to political power. Henceforth, she engaged herself in installing them to
power. The Opposition's movement gathered momentum. Within about
two months of the new Parliement, the ruling party brought the Bill for
amendment of the Constitution for holding the elections under what
they called a neutral "interim govemment", no ruling party nominated
Prime Minister or ruling party members of Parliament having any
place in it at all. Special categories were named, the last retired Chief
Justice, or the second ifhe did not agree, and ifhe did not agree an
eminent citizen. Not much different from the categories suggested
during negotiations. They were to be called "Advisers" but enjoy all the
privileges of a minister. The first among them was to be called the
"Chief Adviser" and enjoy the privileges of a Prime Minister. The
executive authority of the Republic vested in him. The negotiations
would have produced the same person but elected from one of the
vacant seats.
The PM would have ended the crisis with a much lesser concession
and without such an amendment when we negotiated.
36 fhe Ishtiaq Papers
AppendixA
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38 The Ishtiaq Papers
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40 The Ishtiaq Papers
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