Bangladesh’s judiciary has of late been in overdrive. This situation comes in the aftermath of the violent agitation, which forced the fall of the Awami League government led by Prime Minister Sheikh Hasina in August this year. When Sheikh Hasina was flown to Delhi by the Bangladesh military, the question arose of what administration would replace hers.
It was a relevant question, given that the army, which played the leading role in the departure from the country of the Prime Minister, had stayed clear of imposing martial law in Bangladesh.
Moreover, with the provision of a caretaker government not being there anymore — the Awami League government had scrapped it in 2011— the issue of a successor government taking charge following the change-over of 5 August came to the fore.
On the day, the army chief informed the nation that the Prime Minister had resigned. For his part, President Mohammad Shahabuddin too spoke of Sheikh Hasina’s resignation. The reality, though, was rather different. Under the constitution, Sheikh Hasina should have met the President and submitted her resignation to him. Again, within the purview of the constitution, the President should have either asked her to stay on as caretaker Prime Minister or should have appointed a new Prime Minister. In the event, Sheikh Hasina was not permitted to see the President.
Over the next few days, matters began to get a little clearer. Muhammad Yunus, returning from Paris on 8 August, was sworn in as Chief Advisor of a new government put in place by the army. But that did not resolve the issue of the legality of the administration that took charge, even though the President had sought the opinion of the judiciary, which on the basis of Article 106 of the constitution made it known that the President could authorize a new government into office.
The problem did not end there, despite the sentiments of those tempted to suggest that governance was back on track under Yunus.
The Nobel laureate formed a government comprising individuals, who came from various non-political backgrounds, including NGOs.
Into the new structure came two students who had been involved in the agitation against the Sheikh Hasina government. That move raised eyebrows. Consternation was palpable when Yunus stated that it was the students who were the source of his authority.
The problem, though, was that following the government’s fall on 5 August, the Jatiya Sangsad, Bangladesh’s parliament, was dissolved. Over the subsequent days, mobs forced the resignation of justices of the High Court and Supreme Court, necessitating the constitution of a wholly new judiciary under a new Chief Justice.
Meanwhile, Sheikh Hasina, speaking of the circumstances leading to her departure from the country, emphatically stated that she had not resigned. Adding to the confusion was President Shahabuddin’s interview with a newspaper editor, where he stated — contrary to his 5 August statement — that he did not possess any documentary evidence of the Prime Minister’s resignation.
The President’s statement infuriated the interim Yunus government, with its student supporters demanding Shahabuddin’s resignation. The President did not budge, which position had political observers breathing a sigh of relief.
In these four-plus months since the fall of the Awami League government, the President and the three armed services chiefs happen to be the only individuals properly holding office under the constitution on the basis of its provisions. With parliament dissolved, the cabinet ceasing to exist and local government bodies decreed out of existence, Bangladesh is caught in a crisis, that of an absence of constitutional politics.
And in this situation, the judiciary has been playing a role, which has been raising a good number of questions in the public mind. The High Court set aside the judgement pertaining to the grenade explosions at an Awami League rally in August 2004.
The incident left 24 people dead and scores injured. Subsequent moves in the High Court, including the trial of those accused of responsibility for the tragedy, had the court impose the death penalty as well as life imprisonment on those judged guilty.
Earlier this month, the judgment was set aside and all those guilty, except those who had died meanwhile, were set free. In other words, the overturning of the earlier judgment left the country in a state of disbelief, with many questioning whether the judiciary had not been leaned on to free all the August 2004 accused.
Slightly over a week ago, the Supreme Court stayed a High Court ruling made as far back as 2011 to the effect that Joi Bangla was Bangladesh’s national slogan. A petition had been submitted by a lawyer asking that Joi Bangla be decreed as unconstitutional. The facts are different, for the good reason that Joi Bangla has been a militant Bengali slogan since before the 1971 War of Liberation and has consistently been part of the Bengali nationalist consciousness.
The Supreme Court decision caused an immediate outpouring of public outrage, with netizens flooding social media with Joi Bangla images all over. The judicial move was rightly regarded as a step that undermined the constitution as well as national history.
With the country trapped in clearly an existential crisis, the judiciary has stepped into the scene once again. This time the High Court has ruled illegal the 15th amendment to the constitution abolishing the caretaker system of government.
The amendment was brought in by the Awami League government to ensure unfettered parliamentary government and at the same time do away with a provision that had a non-elected and therefore unaccountable government take charge of the country for ninety days between the end of an elected government’s term and the election of a new government.
Proponents of the caretaker system have, however, argued in the past three decades that the caretaker system of government ensures the integrity of elections and brings to power a government chosen freely, fairly and without intimidation by the electorate.
In Bangladesh’s history, caretaker administrations beginning in 1990 and going all the way to 2008, have overseen elections. It is not that all caretaker administrations have been above board in their performance, but by and large public opinion, at least part of it, has been in favour of caretakers constitutionally assume responsibility for political transition from one government to another.
How has the reality been on the ground since the abolition of the caretaker system in 2011? In frank terms, it has been less than encouraging. The Awami League administration went through three elections minus the caretaker system in 2014, 2018 and 2024.
These elections were flawed and obviously raised questions about the entire process of the right of vote being exercised freely by the electorate. In 2014, as many as 153 Awami League nominees, in a legislature of 300 elected lawmakers, were declared elected unopposed as MPs.
In 2018, much furore arose as a consequence of what was seen as the ruling party’s presiding over an election in which votes in favour of its candidates were surreptitiously cast the night before the election day.
In January 2024, with the opposition staying away from the vote, the parliamentary candidates of the Awami League were by and large pitted against rebel Awami League nominees, leading to accusations that it had been a managed election.
The political landscape in Bangladesh remains shaky and slippery. Religious extremism has been having a field day. Relations with India are less than happy, and now that a student advisor in the Yunus regime has publicly expressed his view that all of Bengal, Bangladesh, Bihar and Odisha should form a Greater Bengal, one anticipates a furious Indian response.
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The young advisor, once praised by Yunus as the mastermind behind the 5 August political change, has not been disciplined or asked to resign, has not been sacked and his boss the Chief Advisor has said not a word.
Bangladesh is not a happy country these days.
