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Prefaeed by

Justi*Syed Refaat Ahmed

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Iife Skerch of Banister Syed, khtiaq Ahmed (1932-2003)

Born at Gazipur, Uttar Pradesh, India, on 18th January 1932, Barrister


Syed Ishtiaq Ahmed emerged as a distinguished public figure from his
early life, when he became one of the main organisers to lead the great
Language Movement in the former East Pakistan.
Having passed in Economics (Honors) in 1953 and M.A. in the
following year from Dhaka University, Syed Ishtiaq Ahmed subsequently
got M.Sc. from the London School of Economics and was called to the
Bar as Barrister-at-Law from Lincoln's Inn. In 1960, began his action-
packed legal career in the then East Pakistan High Court. He also
taught at the Law Department of Dhaka University as a guest lecturer
(1961-1968).
He was appointed Additional Attorney-General in 1972 and
Attorney-General for Bangladesh in 1976. Syed Ishtiaq Ahmed was elected
President of the Supreme Court Bar Association on two terms, in 1978-79
and in 1989-90. He served the Finance Committee of the Bar Council
as elected Chairman for many years during the period 1979 to 1992. As
Chairman of the Company Law Reform Committee (7977), he made
significant contributions towards updating the Companies Act of 1913.
As an active member of Bangladesh Institute of Law and International
Affairs (BILIA), he served the organisation as its alternate Chairman
from 1985 to 1991 and Chairman from 1992 until his death. As a founding,
member of the Bangladesh Legal Aid and Services Ttust, he served on
its Tbustee Board to the last day ofhis life.
Syed Ishtiaq Ahmed's personality and his command on matters of
law made his status so unique in the community of lawyers that they
looked to him for guidance as a mentor. To his colleagues and junior
lawyers, he was a leader. Whenever the rights and privileges of the legal
profession iame under attack from the authoritarian establishment, he
never failed to rise to the occasion. An unbending expounder of rule of
law and constitutionality, he often ran into conflict with the establishment.
In the process, he even suffered imprisonment more than once. Ishtiaq's
vi the Ishtiaq Papers

high puhlic image as an impartial jurist and constitr.rtioo t:earned


him the position of Advisor of Law and Justice to the'.-fuetaker
Government of Bangladesh for two tines, in 1996 and in 2001. Wbile
on the Cabinet of the Caretaker Govemment, he paved the way for the
separation of the Judiciary from the Executive, a dream that he+ now
turned a reality.
Content

Refuctians ix
Preface xi
tuobgue xv

Fart I
The Caretaker Notion: Genesis 1

Hebron: The Background ofthe Boycott 3


Magura and The Chief Election Commissioner (CEC) 4
Caretaker Government 6
the Speaker's Ruling 7
the Genesis of Special Reference No.l of 1995 10
The'Ishtiaq Formula' 13
lbe Last Efforts 15
Before the Story the Conclusion 18
The Story 19
Meeting with the AL President 2t
Ttre Fourth and the Last Meeting of the G-5 with the PM 33
Conclusion 35
Appendit A 37
Appendix B 67

Part ll
The 1996 Caretaker Govemment at Work 113

Induction of the Caretaker Government 115


The Chief Election Commissioner and Preparation
for the Election 119
Tor:nado t25
?he Ishtiaq Papers

Connerw and thg Ports .... W


the Economy =:-':''? -: .fA!r
The ElecjEim &hedule " -.,,:,.i!SEF:,._

L*w Cottmiesion aad the JudieialSerci€g 135


ITIASA : ,'. , ' .139
ehittagongAirport ,-. 141
Election = :, ttLtl
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Reflections

It is indeed a matter of great satisfaction for me to see the book The


Ishtiaq Papers, comprising of papers written by my husband the late
Syed IshtiaqAhmed on the concept and implementation of the Caretaker
Government in 1996, being published. Fortunately, the launching ceremony
of the book coincides with the 76th birth anniversary of the author in
January 2008.
As I write these lines, my mind travels back to December 2002. At that
time, during the early stage of his illness, IshtiaqAhmed was undergoing
medical treatment at the BIRDEM Hospital in Dhaka. I clearly remember
that he was anxious to get his writings on different topics on the historic
events in the country with which he was closeiy associated, published
at the earliest opportunity. Almost everyday before retiring at night, he
used to go through these writings assisted by a young dutiful lawyer,
Muhammad Ziaul Huq, then an apprentice at Ishtiaq Ahmed's law
chamber. This daily routine was followed even after he returned home
in January 2003 and this exersise continued till the end of March of
2003. Thereafter, his physical condition gradually deteriorated, and the
prospect of publishing his cherished works during his lifetime was
abandoned which caused him great dismay and frustration.
Ishtiaq Ahmed was not a politician, yet the decentralisation of the
High Court in the early eighties unwittingly thrust him into public life.
He played a prominent role along with other eminent lawyers of the
Supreme Court Bar Association in organising the "anti-autocracy
movement" also called the "movement for the restoration of democracy"
in the country. In consequence, he was twice interned by the then
Government - once in 1982 along with some members of the Supreme
Court Bar Association, and the second time in 1987 with numerous
political leaders, workers, and journalists, although IshtiaqAhmed was
not a member of any political party. He was a committed champion of
democracy and the Rule of Law, and his activities in public life revolved
around this theme. A diplomat friend once admiringly referred to him
as the "conscience keeper' of the nation. During the politically turbulent
n-""u or the mid-ni""r,",,T;:t;';;emerged once again as an
important public figure in national politics. The details of his activities
t'
at that time are recorded in the book, and I shall refrain from repeating
them here.
As Ishtiaq Ahmed's life partner for forty-eight years, I discovered in
him a man of strong principles, conscientious, honest, dutiful, kind, sincere,
generous to a fault, and above all - a great patriot. He had no greed for
money or for power. Gregarious by nature, yet at heart he was extremely
attached to his family.
I am indebted to the veteran journalist Mr. Ataus Samad who apprised
me of a first-hand account and insight into the political situation prevailing
in Bangladesh in 1987.
My heartfelt gratitude is due to Mr. Mohiuddin Ahmed of The
University Press Limited for his avid interest in publishing the book. I
feel proud and happy that our son Dr. Justice Syed Refaat Ahmed has
taken upon himself the responsibility of overseeing this posthumous
publication of some of the significant writings of Ishtiaq Ahmed and
thus fulfilling the desire of his late father.

January 2008, Dhaka Dn SufiaAhmed


National Professor
of Bangladesh
Preface

The publication of the book coincides with the commemoration of the


76th birth annivelsary of the late Barrister Syed Ishtiaq Ahmed on 18
January 2008. It also marks the first in a selection of papers and
articles that Barrister Ahmed had intended for publication for general
readership. Autobiographical in their genre, the papers also share a
commonality in being accounts of epochal events in our political and
constitutional history. In these, the wily autocrat or the myopic demagogue
usually appear as the antagonist to the author-protagonist.
The selection of the two papers included in the publication is random in
the period these represent, i.e., 1994-1996, but conscious in terms of their
resonance to the present day events. Composed with almost purposeful
simplicity, the profundity of the papers is not, however, easily lost on
the reader.
the first of the paperc, as constitutes Part-I of the book, deals generally
with the underlying political scenario of 1994-1996. A civil society
intervention by the sGcalled Group of Fiue, consisting of Barrister
Ahmed, trfr. Justice I(emal Uddin Hossain, former Chief Justice of
Bangladesh, Professor Rehman Sobhan, Faiz Ahmed and Fakhruddin
Ahmed, at breeking a political impasse by devising various formulae in
holding a free and fair election is the core issue of the paper. In that
regard, the reader will be faced with adjudging the merit, for example,
af "The Ishtiaq Formula" as strove to strike a balance between often
competing and discordant notions ofneutrality as propounded by the
key political parties. The account of the efforts of the Group of Fiue in
devising the complexion of a neutral body to oversee future elections is
insightful in its analysis ofthe political psyche ofthese key actors. The
paper accounts for the author's frustration with the political machinations
at frustrating the attempts of the Group of Fiue in this regard. The
author's insight provides the paper with a prescient character and
leaves today's reader wondering in amazement at how little political
dttitudes have changed since then. The question that gets thrown up in
that context is - was the 'caretaker'notion ever given its true worth in
xii The Ishtiaq Papers

consideration by the political parties? Notwithstanding the vindication


of sorts felt by the author with the l3thAmendment to the Constitution
introduced by a party morally enfeebled by a sham election, today's
reader can with the benefit of some hindsight detect an onStokgl shein
of mistrust of that mechanism by whichever political party even given its
constitutional cover. This gives the caretaker mechanism the appearance of
a concession grudgingly made.
Part-II of the book is almost a day-to-day account of the workings,
challenges and the achievements of the 1996 Caretaker Government in
Office. The sense one gets is of a government on a mission to disprove the
generally accepted notion of letharry in governance and rcdsfining -
albeit positively - the concept of 'political will'. This published account
constitutes, however, only a part of a larger account prepared by the
author, portions of which, it is hoped, shall duly feature in future
publications.
The reader will find in these papers a cautionary tale against political
brinkmanship and find expressed dilemmas and concerns that are
portentous ofthe events of2006. the intrinsic worth ofthese papers is,
therefore, evident in proving collectively to be a standard reference to a
further and better understanding of present day predicament. lhe reader
is thus easily transported into the realm ofcounterfactual suppositions
to envisage a state of affairs devoid of self-destructive brinkmanship.
That being said, the papers as published here represent the subject
matter on which Barrister Syed IshtiaqAhmed was working on until he
passed away - his intent clearly being to fine-tune these prior to
eventual publication. Sadly, that was not to be and I now find myself
having taken on the task of putting together the material left behind by
BarristerAhmed. In undertaking that task, I have been mindful of zof
introducing second-gqess alterations to the author's text and have
confined my interventions to simply addressing issues of typographical
errors and textual inconsistencies, and no more. A case in point here
would be, for example, the absence of an introduction in the first paper.
This has been a cause of much deliberation involving Mr. Mohiuddin
Ahmed of The University Press Limited ruPL) and myself. Mr. Ahmed
had as a matter of fact raised this issue with Barrister Ahmed upon
previewing this paper years ago. It is evident, however, that the author
left that matter unattended. Accepting that the compositional integrity
of the paper must not be compromised, both Mr. Ahmed and I nevertheless
felt that this paper would be better served by an introduction of sorts.
Preface xlu

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.

December, 2007 Justice Syed Refaat Ahmed


Supreme Court of Bangladesh
Prolngue

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

It vras sn 25 February 1994 that Hebron massacre took place. One or


'"rne Jerish settlers gunned down 53 Palestinians and wounded 80 during
fay€rs at a Hebron mosque. An unknown group of Jewish extremists
"the Zealots of the God of Israel" claimed responsibility for the killing.
ltere was debate in the Parliament over the massacre on 1 March 1994
and Begum Zia's young Information Minister blundered. In an unkind
dig at the Opposition bench he offended their religious sentiments and
sensitivities. He said "the Opposition have suddenly become Muslims."
The Opposition took this as an insult. There was an uproar and an
apology was demanded. The Minister regretted and withdrew the remark
but this did not satisfr the Opposition. Quite naturally mere withdrawal of
'nsult was not enough.
The Opposition walked-out and this marked the beginning of the
boycott of Parliament by the Opposition. Suranjit Sen Gupta was the
non-boycotting loner then.
This was not an issue on which the ruling party should have taken
on the entire Opposition. Ou the contrary, the PM's intervention would
have been a gracious and dignified gesture and would have gone to
enhance her image and at the same time expose the boycott on the
demand for apolory as a ridiculous stand. Above all it would have been
a great good democratic precedent. But by then the ruling party's
smugness had grown to be as thick as fat on a turtle's back. The party
decided to shield the Information Minister and take on the Opposition.
The boycott that began continued. Who knew then that the ruling
party had'launched on that day the mainstream Opposition to political
power and that they would eventually end up in installing them to
power.
Boycott henceforth became part of parliamentary democratic culture.
What does it mean? In the Special Reference made by the President the
Supreme Court said what it means. In Osborne's Concise Law Dictionary it
is defined as a "concerted refusal to have any dealings with another
person; so called after Captain Boycott in Ireland." (Note: For a.n
4 The Ishtiaq PaPers

enuncia,tion of the meaning of the word "boycott" refer to the Opini.on of


the Supreme Court in Special Reference No. 1 of L995 reported in 47
DLR AD) (1995), 711, paragraphs 50 to 58, and appended as Appendis
B.)
As itl luck would have it for the ruling party, Magura by-election
came soon on the heels of Hebron. This brought bad omen for the ruling
party. Henceforth the political pendulum oscillated between Hebron
and Magura.

MAGURAAND THE CHIEF ELECTION COMMISSIONER (CEC)


Magura was for many years a sure and safe AL constituency. The
by-election was caused by the death of Asaduzzaman, an old guard and
therefore, a committed AL member. His son was contesting on the AL
ticket. A young businessman whose fortune smiled lately and thus
billowed in wealth contested on the BNP ticket. The election came to be
hotly contested. Yet it was blown out of all proportions. On the one hand
the contesting candidates generated heat, and on the other the explosives
in the parties' armouries all were brought out into the open' Half a
dozen or so Ministers and State Ministers and equally the Opposition
stalwarts, the PM and the leader of the Opposition converged on Magura at
different times or at a time. fire situation demanded a bold and firm
handling by the CEC. But the CEC failed miserably. When the CEC
went to visit the constituency he did not have a place to stay overnight.
All the places includi.g, according to some reports' his were occupied
by others. He came away angry and said he would speak at Dhaka. He
did nothing ofthe sort after he arrived here. From the reports appearing in
the press it was abundantly clear that election had become a political
caricature. Any CEC would declare postponement, and call the warring
parties and throw down the gauntlet. The police, the paramilitary
forces, and if need be the army could have been mobilised to ensure fair
election. The CEC showed no signs of frrmness. The prevalent condition
took its own course. Some called it timidity, some indecisiveness and yet
others termed this as a misplaced legal formalism.
The BNP candidate won, and the CEC declared him elected. There
were allegations and challenges, but they were rejected. The CEC told
me once that no presiding officer or returning officer had reported
anything adversely. He was in a spot. When you run out of a burning
house you don't need an arson report to prove the fire. I have spoken
The Caretaker Notion: Genesis 5

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

In retrospect, when the declaration of three alliances, during the


anti-autocracy movement, was being prepared, the frrst draft contained
a provision for a Caretaker Government for the next few elections. To
the two mainstream political parties this was not acceptable, Ttre idea
was dropped. Now, the Opposition's reply to their opponent's criticism
for not agreeing to the concept of Caretaker Government then was
feeble and unconvincing. They would say they did not ever conceive
that a Magura-like situation could arise.
The boycott after many months eventually culminated in an en bloc
resigaation of the members of Parliament of the opposition parties. They
assembled at the Speaker's chambers on 28 December 1994 to handover
their resignations.

CARETAKER GOVERNME}]II

The demand for a Caretaker Governrnent a little later became a demand


for a unon-partisan" government composed of "nominated" persons. Later
still it was improvised by the demand of the sitting Chief Justice to head
such a government. As time passed this demand was amended further
by including in the list after him the immediate past Chief Justice and
lastly in that order an eminent citizen. The supreme judiciary was bei.g
drawn into politics. Whether it was the sitting Chief Justice or the
immediate past Chief Justice, the role of political chief executive of the
Republic contained the danger of distorting the constitutional scheme in
which the Supreme Court exists and exercises its powers and jurisdiction.
Ershad's party and that of Golam Azam also joined with the mainstream
opposition AL. The strange bed follows, to the amazement of many and
bitterness of some others, lived on together. Tony Blair after his elections
said "principles without power is futile." True, but politics without
principles is barren. If ends are allowed to justifr the means an evil society
begins to flourish.
The newspapers relished publishing unseemly but close and friendly
photographs ofthese once antagonistic leaders in the precincts ofthe
Parliament or at private meeting places. Those of my generation who
had spent ten years crusading against autocracy and had teken their
punishment were filled not only with remorse and regret, but a sense
of shame and anger for the unprincipled political judgment. I voiced my
disapproval publicly more than once.
the Caretaker Notion: Genesis 7

I have said already that it is not only unprecedented that a ruling


party has been ordered to bring a bill for constitutional amendment but
also it is not a healthy democratic precedent. A constitution is not altered
just because some of its provisions are not liked. A two-thirds majority
is needed for amending any provision. Or, as in the case'of L2th
Amendment, a consensus is to be arrived at. Or else it is to be obeyed
as it is. lhe issue of a caretaker government was jointly aborted once.
this was the time to resurrect it jointly. What was done ultimately by
the 13th Amendment could have been the exercise made when the
demand was raised. Unfortunately, the obstinacy and stubbornness of
the party in power prevailed over every thing else. This proved to be a
grand miscalculation and blunder and eventually caused an electoral
debacle of the ruling party.
When the three parties and their Members of Parliament along with
their leaders met in the Speaker's Chamber on 28 December 1994 to
handover their resignations, there were hectic activities for reconciliation
and for an agreement to bring an amendment Bill and the Opposition
members' return to Parliament. A BNP stalwart included in the agreement
a statement, which sounded like an undertaking not to resort to hartal.
When I called Saifur Rahman at his office the next morning he sounded
bitter, and even read out on phone the agreed frnal version of the
statement that he kept in his drawer. The American Ambassador David
Merrill sat near the telephone waiting for the good news. He was
dejected when he heard about the last minute disruption. That was a
deliberate act. What motive, what strategy prompted this remains a
mystery.

TIIE SPEAKER'S RULING


On the question of acceptance ofresigrations the Speaker blundered,
too. The resignation took effect on submission. No acceptance was
necessary. The Speaker Sheikh Razzaque Aii discussed the matter
privately with me. He raised a new point: Was such an en bloc resignation
contemplated by the Constitution? May be not. But that was not the
point. The question was if it did come about, as it did then, did the
Speaker have the authority to set them at naught? Obviously such a
power cannot be found anywhere in the Constitution. I left with the
impression that the Speaker, for reasons best known to him, had
decided to reject the en bloc resignations, which he eventually did. It
8 The Ishtiaq Papers

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."

- It follows that under the Indian Constitution till resignation is


accepted, it can be withdrawn by the member. It is like an offer that can
be withdrawn before it is accepted, (tLnion of Ind.ia v. Gopal Chandra
(ArR 1978, SC. 694)).
All written parliamentary constitutions provide for a penalty for a
member absenting beyond stated number of sessions. Our Constitution
The Caretaker Notion: Genesis

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-"

The Court then quoted from learned Hand. J as saying (and as


quoted in 1989 BLD (SPL) 1,205):
"You may ask what then will become of the fundamental principles of equity
and fair play which our constitutions enshrine; and whether I seriously believe
that unsupported they will serve merely as counsels of moderation. I do not
think. that anyone can say what will be 1eft of those principles. I do not know
whether they will serve only as counsels but this much I think I do know that
that the spirit ofmoderation is gone, no court can save; that
a society so riven
a society where that spirit flourishes, no court need save; that in a society
which evades its responsibility by thrusting upon the courts the nurture ofthat
spirit, that spirit in the end will perish."
In those days an impression was created that in deference to the
wishes of the Prime Minister the political stratagem was devised to
extend the life of the Parliament, which dragged on. The PM would
often remind all that she had the tenure of5 years. For a party Speaker
10 fhe Ishtiaq Papers

in our political traditions it was a difiicult time to maintain independence


and impartiality. Constitutional reform is urgently needed for ensuring
the Speakert independence in order that an effective and credible
Parliament may be established. The Speaker's constituency, his nomination,
and what follows on his re-election without a contest are matters on
which conventions elsewhere particularly in England may be examined
and incorporated by consensus amendment of the Constitution. Better
still to develop this as a convention of the Parliamentary democracy
and Constitution.

THE GENESIS OF SPECIAL REFERENCE NO. 1 OF 1995


The political crisis was deepening. By then there was complete
constitutional stalemate. Even if the ruling party wanted to bring an
Amendment Bill this could not have been passed, because the entire
Opposition had resigned, and the Speaker's ruling had changed nothing.
An amendment required two-thirds of the total number of members of
Parliament. This the Parliament did not have.
Suddenly, one morning a telephone call from the PM's offrce politely
summoning me for a meeting. On the appointed day and time as I alighted
from the car at the PM's offi.ce, I saw Dr. Kamal Hossain arriving at the
same time. The Speaker, the Law Minister and the Secretary General
Salam Talukdar were waiting with the Prime Minister in the office. The
topic for discussion was firstly, the Speaker's ruling and secondly, what
was to be done in the circumstances prevailing. My views about the
Speaker's ruling were that right or wrong it was an exercise in futility
as the Opposition had never budged from their resignation. The Law
Minister and Salam Talukdar then broached the subject of Reference to
the Appellate Division of the Supreme Court under the Constitution on
the question of vacation of seat by boycotting members. The Prime
Minister wanted to know our opinisa. I said if at all there had to be a
Reference, it should be on the real bigger question of getting over the
political crisis without amending the Constitutiqn, because an amendment
was no longer possible even if the PM wanted it. At the same breath I
told her a Reference of whatever kind would not serve any worthwhile
purpose. At the same time I sincerely told her that initiative should
come from the Prime Minister to initiate a dialogue to resolve the crisis,
but the Prime Minister showed no positive or adverse reaction.
The Caretaker Notion: Genesis 11

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

Besides asking the meaning of boycott and walkout, the main


question was whether the period intewening between two sessions was
to be included or excluded in computing ninety consecutive sitting days.
the chart showing the boycott days exceeded that period. Ifthat period
was included in counting the days of absence, it was simple arithmetic.
In either event the Reference was made much beyond ninety days of
absence. The Reference thus was like a joy'ride, or a merry go round. It
was not a serious, much less a sensible or meaningful exercise. The
Prime Minister was not well advised.

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

proposal ("Ishtiaque's Formula: Non-partisan tnen to form gout. to hold


election", The Bangladesh Obseruer,2 August 1995; "Ishtiaq elaborates
formula", The Daily Star, 2 August,1995) thus:
'Considering that the essence ofthe demand ofthe opposition parties is to hold
elections under a neutral non-partisan government, and the essence of the
stand of the government in this regard is that the resolution of the preseat
political crisis has to be within the framework of the Constitution, and further,
in the backdrop of the declaration of the hime Minister that she would resign
by a certain stated date before the polling at the general election, I ventured to
suggest a course of action at a seminar at the National Press Club on 28 July
1995, which may be more concretely elaborated as follows:
1. A member of neutral non-partisan persons, say ten, acceptable to the
government and opposition parties, should be agreed and nominated
to form a workable future Cabinet. The future Prime Minister will be
desigrrated from among them.
2. Upon seats in Parliament having fallen vacant, by-elections are
required to be held within 90 days of the occurrence of the vacancies.
This presents an opportunity for nominating the persons who are to
form the agreed Cabinet under paragraph I above, as candidates to be
elected uncontested in the by-elections. By-elections could be
announced to fill all the vacant seats or only to fill the number of seats
equivalent to the number of persons who are to form the agreed
Cabinet.
If the schedule is announced to fill all the vacant seats, the longest
possible date maybe fixed as polling day and as early as possible dates
may be fixed for nomination, scrutiny and withdrawal. If that is done,
it might still be possible to avoid holding of by-elections in all seats,
since the p€rsons nominated to seats which will by agreement be
uncontested would be declared elected immediately upon scmtiny.
Once their election is notified, Parliament may be convened when the
persons elected uncontested will take their seats. The fueld;ng ofthe
by-elections in the rest ofthe constituencies may not be necessary, as
dissolution of Parliament in accordance with the agreement could then
follow.
To resolve the present constitutional problem, under the Constitution,
the following matters must be covered by agreement:
(a) Ttre names and number of neutral, non-partisan persons, who will
forn the new Cabinet and the name of the person from among
them who will be Prime Minister;
(b) The date on which the new Cabinet, consisting of agreed neutral,
non-partisan members, shall be installed;
(c) The date for dissolution ofParliament;
(d) The date for holding of general elections."
The Caretaker Notion: Genesis lb

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

16 The Ishtiaq Papers

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

elections must be held under a neutral, non-partisan Caretaker


Government. To this the Jatiyo Parby stalwarts would add that
if the demand breached the Constitution, the whole thing can be
ratified as was done in 1991 in the l1th Amendment, after the
autocrat's fall. Ttris was a slap in our face for sinning against
them in the past.
A number of proposals, which at different times, in the recent past,
were propounded by different persons and were in circulation were
discussed with a sense of immediacy and in depth. The proposal that
came closest to meeting the predominant and paramount concerns of
the two leaders was, according to the Group, the one propounded by me
and presented to the two leaders.
For long my proposal raised hopes. The politicai parties did not
warm up towards it but also never rejected it out of hand. lhe country
I
bled. The people suffered. The economy and development were gravely
jeopardised. International trade and business commitments shook our
credibility and it was at its worst. Yet, the agitators were unconcer:ned.
To be in power was the be all and end all. For attaining'his goal the
people must roar for their sake. If they do not the gigantic and coercive
parties go it alone. The people do not matter eventually. In a governmental
process that is like a closed shop trade union the people are the last in
that dispensation, but never the first.
The Caretaker Notion: Genesis 17

In the metropolis at Dhaka the parties flex their political muscles.


With such a vast population, their mainstay are the numerous wards
from where the supporters add up to a sizeable number, augmented by
the urchils, the unemployed, the daily wage seekers, who can be picked
up and hired from the people sitting with the shovel and "tukri", men
and women assembling in many street corners of the city in the early
On the day of a "public' meeting these are the people who
thmng the vast arena of the meeting ground. The class and quality of
tle gathering would give an impression of a mercenary politics. That
;hich is spoken by the leaders from high rostrums is Greek to the
ldience. These are for the press next morning, and are not meant for
' e gathering's comfort or for the understanding of the crowd that has
ihered. On the miseries of abject poverty, dehumanisation of "young
Kais", unemployed brigade ofyouth, educated and uneducated, and
. ove all on the deception ofthe poor and deprived no political pyramid
,- so solidly and more confidently built as here, and may be in the
Subcontinent.
Such gatherings have by now acquired a distinctiveness politically.
It costs a lot of money. The parties under the Constitution enjoy
L'eedom of association. But no freedom is a licence. Parliament by law
-an restrict it reasonably. Since every majority in Parliament needs the
licence the laws are not made. As far as organising a mass meeting and
the expenditures involved are concerrred a big party can manage both.
Many of the people who are usually brought to attend are required to
,be transported to and from the meeting. This requires transports -
I
I
trucks and buses. The city streets witness transport processions, with
jam-packed dancing, shouting merr5rmaking audience-passengers. The
passers-by and the ordinary haffic must make way for these king
r'
trucks and busses. For a typical gathering, if only they had the hands
to clap, the audience is alright. Freedom ofassociation has not been as
licentious as in our country.
This was the scenario in which we were to operate with some
finesse, some refinement and lot of lofty ideals. Patriotism has its
pangs. Where neither the people, nor the country is the first, whatever
else is first is negation of patriotism. In the absence of this the whole
nation is like a broken home. Our children are not proud at home or
abroad. The country's name is looked upon with disdain. The leaders
put our children to shame. The autocrats for a little less than a decade
18 The Ishtiaq PaPers

excelled in such personal misdeeds, and what is worse, in sex scandals


and blatant lies of all kind, that would take years to wash off the nation's
blots. Yet they keep on performing brutal hypocrisies insultingly. The
people suffered this in silence and tolerance because they are weak and
unorganised.
These were the total circumstances in which we were operating but
hoped to achieve a result. We nearly succeeded when at the very last
moment the Prime Minister wavered, and thus committed the last and
the most costly mistake.
In the narration that follows, this unknown story is told while the
memory lasts, lest the story is buried deep into oblivion'

BEFORE THE STORY, THE CONCLUSION

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

A saga of an exercise undertaken with cautious optimism which


altemated most of the time between hope and despair, did not crystallize in
the end although the moment to cry out "Eureka" came twice but it
memed that some hidden hands snatched the precious moments away.
Convined that the impending disaster, indeed the catastrophe, would
be tike a war in which none of the parties would win but they and the
people would be the losers we tried to avert the crisis.
the precedents set by the parties were undemocratic, the means
adopted were unprincipled, and the coercive and destructive methods
reninded one of Shakespeare: "it is wonderful to have the giant's strength
but it is tyrannical to use it as such". Coercive show ofstrength begets
the same in future, as blood begets blood. In what the Opposition started
as a movement to dislodge an elected government, the people must
suffer, industry trade-national and international - the essential utilities,
the developmental process, banking and finance, the shopkeeper, the
sm.all trader and the likes of them are to pay costly prices at the alter
of the Opposition's sheer power game. What would be the nation's fate
where such games get being played periodically at short intervals?
I pa.use here and write about the last efforts of the G-b to find a
solutim, as we five came to be called.

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

was a closed topic as well. we did not want to be argumentative. we left


. it at that and followed the elimination game of the PM. she
took great
pains to explain to us how the neutral-non-partisan caretaker Government
concept was opposed to the basic concept of a representative government,
and when one of us intermpted and told her, "Madam you are right; but
we are not negotiating a new structure of government but purely a
temporary arrangement for the exercise of executive authority of the
Republic when the general elections are held and conducted by an
independent body, the Election commission. The executive government
has no role to play except to act in aid of the constitution remaining
strictly within the bounds of law and the constitution." The argument
did not appear to make any impression on the PM. It was like water on
ducx-s back. So the frrst conclusion regarding PM's response in
summary was: The PM would not agree to discuss neutral non-partisan
Caretaker Government.
Next, she reaffirmed to us by reiterating that she stood by her
commitment to resign four weeks before the polling day. But she hastened
to add that upon dissolution of Parliament and her resignation the
position of the PM in the interim government must be occupied by a
member of her majority party in the outgoing Parliament.
We could see that for the Opposition all these were non-starters'
Now, the penultimate point, a non-starter, too, was this' The PM
would agree:
(a) to accommodate five opposition nominated persons to get elected
unopposed to Parliament from seats vacated by the opposition;
(b) along with six sitting members of Parliament of her parby they
would form the cabinet to run the interim government following
the dissolution of Parliament (of course as already said the
Prime Minister must be a person from her party only)'
we had no doubt that the opposition would reject this out of hand.
Last of the points left the PM's doors a little ajar. We, |l[s sinking men'
were willing to catch even the'little straws.
We always thought that if we could bring about an agreement on
this one point, the other differences would be ironed out as one did the
creases. Before we departed we raised the issue. The PM should at least
agree to a mutually acceptable person to head the interim or caretaker
Government, by whatever name she would choose to call that person.
she did not reject it out ofhand, but expressed her grave doubts as to
whether a person mutually acceptable to both sides could be identified
The Caretaker Notion: Genesis

as beng politically neutral. This was a slight deviation from a "child-


mad" position taken by PM at the early stages of the discussion. More
hopes in our minds were raised when she asked the group to name such
alnrson for her consideration. We looked at each other and nodded our
heads with negative signals. We argued very politely that we thought
that identification of such a person should be undertaken through
consultation between the ruling and opposition parties.
So the day's discussion can be summarized as follows:
(1) The PM was not agreeable to discuss neutral non-partisan
Caretaker Government as it was according to her contrary to
the concept of representative government.
(2) She stood by her declared commitment to resign four weeks
before the polling day,
(3) The vacancy caused by this resignation would have to be filled
up by a member of the Parliament nominated by her majority
party.
(4) PM would accommodate five persons, nominated by the
Opposition parties, to get elected to Parliament through unopposed
by-election but only from the seats vacated by the opposition.
they along with six of her own sitting party members of
Parliament should constitute the 'interim'government, and of
oounse one of her six pariy members of Parliament should be
appinted PM on her resignation.
(5) Tb the Gmup's p'r,oposal to agreeing on a mutually acceptable
neuhal non-partisan penpn to head the'interim' or'caretaker'
government the PM expressed serious doubts if any person
could at all be potitically neutral, and countered by asking the
group to suggest a nrme. We declined to do so and argued that
such a person should be identified through consultation between
the ruling and Opposition parties.

MEETING WITH fiIE AL PRESIDENT


About the time we tried to schedule the first meeting with the PM an
early follow-up meeting was also sought with the President of the AL.
This would have enabled us to convey the outcome of the meeting with
the PM without delay.
The Ishtiaq Papers

By the time the PM scheduled her meeting with us on 9 October the


AL President had already left for North Bengal on her pre-scheduled
programme to visit the flood-affected areas. We had to wait till her return
and the meeting at its earliest was scheduled on 14 October 1995.
Why did we decide to meet theAl President to the exclusion of other
allies in the movement? This was not a deliberate step. It came quite
naturally. We were never reconciled with the idea of JP espousing the
cause of free and fair election and demanding Caretaker Government
to ensure this. The JP was, since the days of the anti-autocracy movement,
left out hangers-on. They did not occur to our minds. In any event, they
were AL's allies, and were AL's worries, if at all, not ours. So we would
discuss with the AL President and her party men, if she so chose and
with no one else. I, for one, would never have agreed to be a member of
the group, if the group were to discuss with JP, too.
At our first meeting with AL President on the svgning of 14 October
1995 we found that AL made the meeting a serious matter, and it was
attended by most of AL leaders.
The group started offwith presentiag my proposal. Tbereafter, the
gist of the PM's responses, as expressed at our meeting on 9 October
with her, were also presented.
Quite naturally, as was expected, the AL did not see the position
taken by the PM as atry significant advance beyond the prevailing
political impasse. The President ofAL was forthright in identifying and
pinpointing the key issues. The points she made were that the PM must
at least accept the principle of a neutral non-partisan Prime Minister
as head of the Caretaker Government. If this principle was acceptable
to the PM, further discussion could be held between two sides on:
(a) The identifrcation of the prospective Prime Minister,
(b) The composition of the Caretaker Government, and
(c) The modalities of bringing them into offrce, including through
possible route of by-elections.
All these'issues according to the AL were secondary to the primary
issue of the PM's acceptance, in principle, of a neutral non-parbisan PM
acceptable to both sides. The AL considered that this was indispensable
to the functioning of a Caretaker Government and holding aad conducting
a free and fair general election.
Notwithstanding the public rhetoric of the Opposition's demands,
the preceding paragraph summarizes the bottom line of what was
acceptable of them.
The Caretaker Notion: Genesis 23

I was impressed by the deliberations, the sincerity, forthrightness,


and decisiveness of the AL leadership. Every one who mattered in the
AL hierarchy was in the meeting. It was thus a very authoritative and
decisive ommitment. I thought the solution was within our reach.
Asecond meeting was sought with the PM to convey these views of
AL Pnesident and leaders to her. The meeting was scheduled on 16
October in the evening at 7.50 p.m.
lbe Opposition had been gradually mounting their pressure, and a
?2-hour non-stop hartal was called. The meeting was during the hartal.
The PM's offrce offered transport and escort that each one of us had
politely refused. Notably, within the Group there was no contact with
one another before such refusal. It seemed we were on the same
wavelength. For rickshaws the hartal used to be relaxed in the evenings.
We decided to have a rickshaw ride to the PM's secretariat. Rehman
Sobhan and I lived in Gulshan. We decided to travel together, though
not necessarily on one rickshaw. Rehman Sobhan came riding a rickshaw
and asked me to share the ride. It was dark, otherwise a daytime ride
of two sizeable and healthy persons would have attracted many eyes
and brought forth many witty comments. The PM's secretariat was
nearby and the discomfort of two of us riding one rickshaw was not too
unbearable. When we reached the secretariat the PM's staff received us
outside the main gate and must have resisted their laughter with great
diffrculty. They were good enough to tell us that a car is waiting to take
us to the office. We welcomed the car drive this time and by the time we
reached the office and got down the car I felt that I had been greatly
relieved of the pain and numbness caused bythe rickshaw ride so much
so that I walked with my stick the long corridor to the waiting room by
the side of the PM's ofiEce. Other three members also arrived by rickshaw
but they rode singly.
The PM again met us alone and for about two hours.'
Most of the time spent was taken by us in persuading the PM to
agree in principle to the demand of a neutral non-partisan Prime Minister.
Every thing else, we emphasised and repeated, were secondary and
negotiable. The PM would not agree. She would not budge from the
position that the interim government should be headed by a sitting
member of Parliament nominated by her party.
She made two minor but, what we thought, absolutely inconsequential
modifications of her previous stand, First, the members of the interim
government would not contest the elections and would forgo contesting
24 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

The communiqu6 was as follows:


"... the Group conveyed to the Prime Minister the view of the President of the
Awami League and her colleagues on the current political situation and their
position for the resolution of the political crisis. Following a discussion of the
prevailing view of fh6 both the sides the Prime Minister said that she was
willing to meet face to face with the leader of the opposition to discuss with ogt
open mind to find a solution to the prevailing political crisis."

We sat and discussed amongst ourselves. We did not yet have


anything to conclude that our efforts were merely an exercise in futility.
The press was responding with responsibility, and positively.
There was no adverse political reaction. The major political parties,
the ruling party and the Opposition were very cautious in their utterances.
An apparently difficult mission had not yet become an impossible
mission. So the G-5's caravan moved on.
The hartals, amongst others, created logistical problems for holding
the next, that is the second, meeting with the AL President. Rehman
Sobhan, the G-5's crisis man, was entrusted with the responsibility of
formally conveying to Sheikh Hasina the PM's message. He met her on
18 October 1995 at her residence and conveyed the message. He brought
back with him the curt response that if there was to be any dialogue
there had to be a specific agenda. An invitation for a discussion on these
issues with her and her party men was extended to the G-5 for 21
October 1995.
On that day we met the AL President and almost all her leading
colleagues at the AL Foundation. While discussion had just begun, the
power failed and we were plunged into darkness. The AL President
kindly invited us all to her residence where the meeting continued. The
communiqu6 issued on that day included the names of the leading
luminaries of the AL. I would like to reiterate that the AL had taken the
exercise seriously and equally seriously did their homework before the
meeting. We had no doubt whatever about this in our minds.
This was the longest meeting so far and the most memorable. Most
memorable because one point, and one point only, of principle emerged
which centered around the acceptance by the PM of a neutral, non-
partisan PM to head the Caretaker Government. TheAL President was
ready and willing to sit with the PM if she gave an indication of her
acceptance of the principle of the non-partisan PM. Every thing else
was negotiable, for instance, the identification of the mutually acceptable
person, the modalities of such person's appointment, the composition
26 The Ishtiaq Papers

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

Government, she would persuade the Opposition to make a major


conoession by agreeing to bring the chosen candidate into the
Parliament through a by-election to one of the vacated seats. A minor
condition was that it had not to be the seat of a party which had
resigned from Parliament. This meant any of the seats declared vacant
tlmugh those members who had crossed the floor from the Opposition
to the ruling party, and such jumping rats were quite a few, or any other
seat which had otherwise been vacated.
This offer of Hasina communicated to us by Rehman Sobhan was
seen as a very important breakthrough in the negotiations. The solutions
sought by the Opposition had hitherto before been outside the framework
of the Constitution. This was for the first time that Hasina had indicated
her willingness to seek a solution within the Constitution, as proposed
in the 'Ishtiaq Formula', provided of course that the PM accepted the
concept of a neutral Prime Minister. We, the G-5, deemed this concession so
very significant and important that we sent Rehman Sobhan back to
Hasina to seek a re-confirmation of this concession prior to our meeting
with PM on her return from New York. Rehman Sobhan met with
Hasina at her residence on 26 October 1995, when she in no uncertain
terms reiterated her offer of the concession but at the same time
emphasized that the by-election to elect the neutral Prime Minister
must not be located in any seat from which the existing opposition
parties had resigrred.
This concession from Hasina was most significant not only because
it marked a breakthrough but also because for the first time the
conflicting positions of the PM and the Opposition were reconciled.
Without disclosing the urgency the G-5 had a message sent to the
office of the PM with a request to pass on to the PM in New York a
request to grant the G-5 an appointment immediately on her return
indicating that the G-5 had a message of some importance to
communicate to her.
The PM returned on 26 October 1995 and we were offered an
appointment on 1 November 1995. The G-5 saw in it ominous signs.
The deliberation with Hasina had leaked out, not in the press, but
because ofour own inadvertence. One ofus spoke to the press contrary
to a tacit agreement between us in this regard. It proved to be costly.
Within the ruling party the leaders had been burning with wounded
vanities. Whereas Hasina had taken the party stalwarts into confidence
from the beginning and negotiated openly, the PM excluded her party
28 The Ishtiaq Papers

stalwarts. What alternative channel of communication between them


and the PM had evolved was not known to us. There were many in the
ruling party who thought that if the worse came to the worse they
would go it alone, and their prospects of returning elected from their
respective constituency would be absolutely assured. Quite a few of the
leading figures in the party and the cabinet had a nightmarish fright of
a certain electoral debacle and disgrace. They would not have been the
votaries offree and fair election.
The unfriendly or, at any rate, inhospitable forces that were at work
within the ruling party did not augur well for our sincere and selfless
efforts. We were face to face with a hostile intriguing lot within the
ruling party, and the events that followed would bear this out. These
events would not be easy to understand as they would not appear to be
amenable to reason or to good sense.
The appointment offered on a date five days later aft,er the PM
returned from New York was a sure pointer to the fact that the PM was
not in control and the other forces had the upper hand. This late
meeting was offered notwithstanding that the G-5 had communicated
to her the urgency of an early meeting through her secretariat and her
cabinet colleagues. In these communications the G-5 indirectly indicated
that they visualised a breakthrough in obtaining a modifrcation of the
position of the Opposition on the issue of the appointment of the neutral
Prime Minister of the Caretaker Government. We had in no uncertain
terms but quite emphatically and concernedly not only asked for an
early meeting but also that th-e PM took no step in initiating her
promised communication with the Opposition until she had met with
the G-5 and heard the report on the outcome of their meeting with
Sheikh Hasina.
These urgent communications and requests were ignored and
dashed aside. This made us feel terribly sad.
The PM was not the same again as we found when the parleys
began.
As we expected in the then circurnstances, the PM commenced the
letter politics', and inaugurated the series on 28 October 1995 by addressing
the frrst letter to Hasina. The letter was without any substance and
was merely an exercise in futility. The PM invited Hasina fs1 talks
albeit without any conditions attached. Was this the issue? Was it
propitious? The PM knowingly indulged in an exercise that would only
widen the gulf of differences, and lead the people to a disastrous future.
The Caretaker Notion: Genesrs 29

The text of the PM's letter to Hasina sent on 28 October 1995 is as


follows:
uAccept my heart-felt greetings. You are aware that the tenure of the Fifth
Parliament, elected in 1991, is going to expire shortly. Naturally, in accordance
with the Constitution, parliamentary election will have to held in the near
future. It is describable that the on-going political crisis in the country should
end before the upcoming elections for the sake ofthe country and democracy.
I firmly believe it is possible to resolve all problems through discussions.
For the greater interest ofthe country and ofthe people, I am sincerely inviting
you to sit for a dialogue immediately with an open mind with a view to finding
out solution to all problems relating to the forthcoming elections. At any time
suitable for you, the talks can take place either at the Prime Minister's olfice
or the Parliament Chamber ofthe Leader ofthe House.
Ihope you will oblige me by accepting my invitation." (Thz Daily Star, 30
October 1995)

The PM's letter was dispatched unscheduled. Hasina's reply was no


more propitious in its contents than was PMt letter to her. The full text
of Hasina's letter of 31, October 1995 is as follows:
"I have received your letter dated October 28, 1995. In the meantime, a copy of
the letter has been made available to the news media from your side. Although
delay€d, you have admitted that there is a political crisis in the country. I
sincelely thenk you for your eagerness to solve the problem.
You certainly renember that during a similar political crisis you and me,
alongwith the people, had fougbt for elections under a non-party neutral
Caretaker Goveranent with a view to ending the political crisis. That
movement was sucessfirl. The 5th Parlianent which came into being after
much bloodshed has failed to fulfil the hopes and aspirations ofthe people and
the House had lost its efrectiveness one and a half years ago. As a result, the
country is in a grave crisis, But I notice with rruch regret that your letter does
not give any direction towards a settlement nor does it contain any guideline
about the agenda for the talks.
With goodwill and sincerity, it is always possible to solve a problem through
meaningful discussions, however complex a problem or crisis might be. But it
is to be remembered that no discussion can bring about fnritfirl results without
a definite agenda. That is why, I think it is necessary to fix an agenda before
any dialogue.
What can be the objective or goal of the dialogue in the context of the present
political situation? That must certainly be getting out of the prevailing crisis.
You are certainly aware that the entire Opposition and the people have been
agitating for the last one and a halfyears demanding national elections under
a non-party neutral Caretaker Government in the interests of ensuring the
democratic process and the right to vote of the people as enshrined in the
Constitution. During this democratic movement, people have suffered much
30 fhe Ishtiaq Papers

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

32 The Ishtiaq Papers

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

Hasina asked the Group to communicate that request to the PM


that she name several persons chosen from the above categories,
acceptable to the ruling party, and convey the same to AL for their
consideration.
The G-5 at once saw that the outcome of the deliberations was
positive and important, and we decided on the spot to provide a press
briefrng to the newsmen. Faiz Ahmed was assigned the task- The
briefing took place in the presence of AL Presidium Member AMus
SamadAzad. The communiqu6 as before issued by the G-5 included the
names of the other AL leaders who participated in the discussion with
the G-5.
The Caretaker.Notion: Genesis 33

TIIE FOTIRTHAND THE LAST MEETING


OF THE G-5 WITH THE PM

As usual the PM met exclusively with the G-5 on 6 November 1995. We


mmrmicated atl that we carried from the AL meeting on 2 November
1995- The PM nust have been aware of all this as all this appeared in
tb pess. Tbe PM rigdly adhered to the position taken in the previous
thee me*ingF. She would not accept any person as Prime Minister,
fllming her resignation, other than a sitting MP of the ruling party'
Sbe rls of AL for discussion with an
ritring to sit with the President
qlen nid, which she knew meant nothing and the Opposition was not
enrrnomslqritr a discussion with a blank agenda.
We looked at one another sadly. But I did not give up, and whispered
to Rehnan Sobhan sitting next to me, let us rip open the "open mind"
a last time- I sai& ailadam, 'open mind'surely meant that the Opposition
must be able to discuss the question of a neutral Prime Minister with
an open rninrl, dherwise how can they sit for a discussion with the
ruling party?'Ite PM indicated, and I did not notice any hesitation or
rzsersatln,'hrtherofrer covered any issue, including that of a neutral
umaulyCuetalerGwernment. Therefore, the G-5 suggested that in
th d lffi to the AL President renewing her invitation to talks, she
odil ee mtr stete specifically that the agenda might include a discussion
uLlh0npndtin 1rryGal for a neutral non-party Caretaker Government.
% said ne u:re abeolutely sure this would promote negotiation. If it
seglilhrtrpmtrnegptiation, she was wilting to say this specifrcally,
she said Ttb vas m dtle finest momeuts of our efforts.
trle asked nbfu we curld indude this comnitment in our
communiqu6. She readily agrree{ but at the next moment she asked us
to show it to her before haniling over to the press.
The meeting ended and we sgp in the next room for drafting the
communiqu6. Faiz soon made the draft ready and read it out to us. In
the meantime, we could hear busy footsteps in the corridor along our
waiting room, but these did not disturb the concentration with which
we were engaged in drafting a momentous communiqu6.
As the PM called in the one who was drafting the communiqud, Faiz
Ahmed took the communiqu6 to the PM for approval. He found her
alone, waiting. But by then she had changed her mind. She resiled from
the position regarding the discourse on a Caretaker Government.
Consequently, in the communiqu6 of the G-5 nothing new was included.
The sentence was dropped.
34 The IshtiaqPapers

We were very near a solution. The Opposition made great concessions


for a dialogue and was on the irreducible minimum point of a discussion
on the Caretaker Government, and all the other matters were of detail.
The PM showed her willingness at the last meeting, but resiled for
reasons best known to her. We were tempted to make one last effort
before giving up.
After the fourth meeting on 6 November 1995 with the PM we had
nothing to report to Hasina and her party leaders. We asked Rehman
Sobhan to convey this message to Hasina. Rehman Sobhan agreed and had
a meeting with Hasina fixed at 8 p.m. on 8 November 1995 at her
residence. On that day while Hasina was addressing a press conference at
the AL office in the evening the police intruded into the office. When
Rehman Sobhan met at night naturally Hasina was in no frame of mind
for a free exchange of views. The meetingwas short, unfruitful and non-
productive.
The exchange of letters had not ended yet. From our informal
exchanges with the Opposition we had by then firmly concluded that a
declaration by the PM, even in the letter to the President ofAL, of,her
willingness to discuss the Opposition's concept of a neutral, non-party
Caretaker Government could be the basis for a Governrnent-Opposition
dialogue. That great moment arrived when the PM at the meeting on 6
November 1995 with us agreed to include this commitment in the G-5
communiqu6. The moment was unfortunately lost when after the
communiqu6 was drafted, the PM asked that part to be excluded.
As a very last effort we thought, would not she agree to at least a
verbal reaflirmation of her commitment to discuss that issue at the
outset of the dialogue, so that we could convey it to Hasina? We decided
to send one of the G-5, Faiz Ahmed, to seek this reaffirmation and
consent to communicate the message, if she reafrrmed, to Hasina. Faiz
Ahmed met the PM on 9 November 1995, who reported that the PM had
expressed her willingness to discuss this issue and gave a clearance to
Faiz Ahmed to convey the message to the President of AL. this
message, delivered via Faiz Ahmed, was conveyed to the President of
AL through a telephonic communication by Rehman Sobhan to the AL
Presidium Member Abdus Samad Azad.
The next morning the PM's letter to the President of AL arrived
containing a reiteration ofthe stale offer to discuss all issues with open
mind. The gap between what has been conveyed to the President of AL
by the G-5 as the PM's position and the formal letter of the PM to the
' lbe Caretaker Notion: Genesis 35

President of AL was at once noticeable. The G-5 was faced with a


E€dfolity problem- In the mind of the Opposition, we were led to believe,
tb questim of the reliability of the G-5's communication must have
been raiseil We decided to end the exercise which began with our first
Idinswith the PM on 9 October 1995.

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

The PM must have found the situation that emerged by then


compelling. Was it difficult for any person of even ordinary intelligence
and prudence to know which way the wind was blowing or what was
written on the wall? Only the PM's men did not.
After the Amendment the PM had frnally had her platter on whi-ch
to arrange the political power which she did, and eventually handed it
all over to the Opposition. Yet quite understandably grace lacked,
because in the kind of democracy that is practised here none of the
parties are prepared to lose in a general election. When this first lesson
is learnt, then only democracy will begin to institutionalise. The ruling
party hoped to win. That is not sinful. The determination to cling to
power and retain it is.
The poor interim government after the Amendment ceme to be
installed suddenly and fortuitously and was composed of people with no
experience of politics or of political government. They were 11 and with
me in it. It had a constitutional mandate to firlfil within three months
only. Out of yesterday's political tumult and turmoil, at the break of the
dawn, a new order was to be ushered in as if by a magic.
Thank God that every moment of the 84 days of the "interim
government" a fairly peaceful, tranquil and secure civil society breathed in
freedom. In the short but unfortuaate moments of national agony when
some members of the armed services moved against the Government of
the day, the ChiefAdviser voiced our sincerest concern when he appealed
on 20 May 1996 to the members of the armed forces of Bangladesh to
uphold their glorious tradition and not to stain the mother earth with
their brothers'blood. God Almighty answered our prayers. Thus, in the
end the devouring fire of the fury was soon defused. There was cool
calmness around. Democracy survived and was set up again and the air
blew ringing into its ear the hymns of resurrection.
Soon after the elections, which were fairly and freely held and
openly observed by thousands ofnational and international observers,
were over the new Government was installed and the interin
Government quit on the 84th day of their 3-month tenure.
The Caretaker Notion: Genesis 37

AppendixA

(8s) )8 c q;r q(w rrricrTrt "lrertrf


Ftit"t{k s qrfis qqqryq, 'ls aE ffirTA, )bbc qtfr ET-{fu ffT qQ't tt-ot<
cffilrF (qtc{ sbF ql'fiv qrfr ?<{sT{ e({ frnlg qnq oR r €-o frfirg qlfr
&tr{ TrgRqlE c{, 58q w4 qFfrT qqq'R qurpffi +Fts 'iq-sil't q*rrd fiqE ETF
€tfuR? es-s cs<fre ct(R$fr-sqrfig rftg q(qhcrmrq-{ flc-Ett't {*R"6 rF
ffi qvqr $tr cslrf< AW fi-"-k{ frFrflAq, {tslR q<( qoB qqs sF-{ s qTqr
wql{clG{ffr-s +1uQ-u {ffiT \flfr Afr{ E-s )8c q*{ q(cq qqctn< flq-sit't'rq
q"'Rdwr< frafs qqq q"flioss qfts c<tqREn r

qERq q Rc1q qm<frqTsqlfr ql TqFccryffi qc'F s-dQ r

)bb8 {FFt lbel frr{c< <ls Eltr bfiT Tlelg 9lTiEjt't'16 wGs ffi FrR
qrg +tre E{ cc'€sl qs r qsF +ttq qnt cc{ $afu frL<tffiR oft e qsrtft
Aq wr€ :rerri rtilru c+{ qF-{ r ffi q+q <ceF[ 6q, sfi-{{ okwtsc
€ffifi Erg qrdfil 4ir {€ rrirqFr qEstFlerq ffi€Et <rT[qtqlTR skq
wS GffuFr e.{t cq da 'ttffi omqs cuslirrnFr qq< fiqW fflq d{fr,
qR'ql w ffi c?FFl EttTtir rrq Ei:n m{ qtllirtp ffir qiqft{ qffi{
t*l c+t wn rffi Eqn fimft r €Ft <r+{, cFrq<€rEtp slrh< ? qrE-?r
qtqh qt:flm {ren{"w{{ ircrcR r Erl:nir rfte A csr€Fr€Frt c{ T3d qnt" cq'€{t
qg, E'qQqtF cFrqlTR cs, .i csl€laarElp qrolTRE trsttrtqqqx {qqqrcfr
<t(sftcd;r n(Rffiilr vr({) w{[qq q{(<RqEEFR qr*s c(q,cc< edqqrft Rli<
)lr frftrc Eq€ fr{q q1trft $+rq'Iwfrtl qftq o<re qr< r qaR cqt vtfr
ElrETcs qR q$<t{s oG c{, c(ftB q-qarEk qf{fu qqqq qql]qclrs F{ ciR${ \e
nf,fuqTft frf{< .tfcTq ttr["fd q41 qfrfi qtEK sT.[R spr sqr$q sirt Rn r s!N-{
v.Ifr qm-sRs ffiR s6i6s-{ qripr< 4T g1FF tsu' sfr, sqq co'n il'qt'6-$
q'rn-d rsF q(qn qqqns {iR r <rFs{ frqq q-{< qT-{rBfr-{ otffi"{ frIft, ,axf}t

frfr vt< 'ieiglrrt'rEt qq fi\e{K gr{'ffiflssrc{ EqlW Rffi{, €<( q-{K q-<lE<
{<lF d1ft, olftkrs q-stR-sT{€"tQe Rq ftq qfr ET{ q'c6m qrirq,< ltr v-rotr
"r,€ Gfr 6'r{ {r{ r gl$C+ <Eil qT, qq'qirtct srcn< mqrc-d cffi Drq csfrS q<i 6Eq
Rft(<t{cqa'r
ltrftr ft$ft Tqr c+A eFI qfi-{t, q{ft qii-qTe Rr€trn oilext uufr
fi-sj]'t"lq tE*il{tEol qfrs.m "m qtft m..ns 'nQ c<, qt\eTtft filuf< s-{< {stfrE<
eqqr{, eEFt s q-{R stqvrcwlfi{ d{fr, q$l q< {q-sit4'I@ TtsF{ q(qq qq'ql
38 The Ishtiaq Papers

RffK .tfi .{qrq? fr-q qcqq'ctrffiR <frs q{{t Tfsli< cr{ frslq dt I qqIH Erg{
s.{t ({cs '{r[{ 6q, qq< {glftw r{qF, q'{Ft \ts-)r,-b8 Effirq co fr6rs qITIr{
qFFt, 6sFt o16sila'rq nFF s-dl q[T cl]srq, frfi \dF a1s< 464fr I qFs m'{t:tlll
6q, crFTsl(<-?r 'trisit't9r6q 'tt€TI sl€nfi fiI'l< q-{l< qt{q*qrqF d1ft, wFt <<
E[EF{ C({q'CF{FKI {frs qR T{-fl CrS m.ldt CTFT 4t I

qm c'rcq, qrm tM rffi "l5R-Td q&LR ffi qmun"r* oK qTre{ r St< tt<
fifoa cqqt Ecrrq sF <rfuT dfoelq rar coffi, ffi vm qRDT effi{ n-m{fr r qllt<
qfuc Cqfu sciriFsf{ qtq{fr-r s affid Flrqqfi qR dFrceln o-q qqrdutm r

qvtr< q-{Fr {glfrEK n-{qf{, q{l rg qqFr qFleFFqFf{ d1fr, qEFr q{


{q-silrt'E TcE oRe qF rc
{qeqlga <t(qftqn-{ qcfr{rr+< sc(r) \trSqrq?
otsd fie crq q6s qcq'rq{ st{q{ffi Rfi{ r cq ffi mlsr{s
Fs qcrcq<e qn
'l"flsRfi r qsq{ st[qn EI,r{ .Iqi qlfr r

s]ft "irFR c{-q< cr{lr{E (q<0 rrqTT{ EfqF, qIfi \brl frrcr< 'se qRt{
qtTFr {dFnd 6q{t sro S6cs q$< F'Ks fi-{s oc<q 'ffi q<cq qrilr
"t'i cqro
e19ig11{ qt €dl-?r fih1g,fq.t +r*R r" St< q-dp fiq1-13 aq6 fr1ft, .mFt
'toisi{'rq
e-g+ ult ffis{t Rt€tc< ens{t afrq r qF Gk fi+Rs btE{ €{r tS; fu {b-)t-be
stRs qsi Flfrcs cq\en] qcs[q rFr IET4TF{ q{ r Gt< {b-)t-bs qRc{r fi6 cqn
qR s-la.bm
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qslr{ *"t? q-{ ctr, wtFt frqr{r rqrq dIft, qcfi q{ q$ cn€{l crt-€tr< €F c{
efrigttrt'lEl Trq aRcl T-dt c{cE qI q{( ccrQ
'iqsltri'rq 'it€$ c{cqst r{q1'E '[r<
q c\frql6{r vr(r) w16q66 fr{q mq {rq q6\o lilm{.ndqqtft frft< lcq Rfid
qt€EFrw lI r Gta 'torr-ttut9llq \51i vr(l)
't.tEq,|sfr <}(qtnrR lrfr<|61-<
q{rqrc< qd fiE crt qFs c(TCrK odqmft frlt< lqq frfi'< qerds stR'lAs
qcrrq <FT
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rR {t q<q$R qc{ W q-{fr |

q<FE lseF q.c$, qrft{ qcqra qqry qcqt{


{qrq ,ffil[h:l
"loi\oltefrq-< 'nff<
Et-fl COSA eintn< S-rc.'|-C$it qt<jT{ qSA frffit.d 'b8 qiqEqF{q{ F-F
"irist'lrleE
qsrq q<( qxF ctqn rl{t stcq r s{I-{ sterlfr filur< qqn -t+rr<< rtq]n
Fs
qnF olrq 66 46pl{,to qrt ccq r !eFr--$r< EE Q EF "tcsnEflEl q+E qtqFil
trft< G'r< ft&'m qnq 1 gsr{ q<Ft? >e{F otriqtE"tEr qoq6{ frcqu-{ +iil q-rsm
q<i frr<r+ e fiqt-s €lqcfd sll firtrc
'fatqq ufirq:
). ql "tvgt'tq-q,cI3 Eqeqrfr <tteRsr-trr ccR{fr{< sq(\) q{(qE cct crs
q6s {ccffi< olfuqffi Rft< rqq Rii E-1ttft fi,fiR.o- qlE{qs "rffi 1lq
F-K FF;II?
a.. )s8 q(qri qqt'Trn q-sRlctt 'l'iEjH r{( ft-+ ,{<(. qqqqlsfr <I(sEqfi-?r
qiRqf6{dsr(\) qxrqfir qd cq? cffi 't$\o c({cqi{ offqqffi ftfi< >qq
qtesrs *ftoR cqerql €req F-{cs
Rk< "nraq frr'lr
The Caretaker Notion: Genesis

)q( "rcfi
{qffi {1qnF-fi-< c(fr{Frd sq(q) w{@q frfl{"t .-
'c{F qqq qqql *ftflr<-d ffi qlT-{Ts etErift't ** toisx't TR[s {Rr<{
fi(-t{R ft(<t*ft-fi<< qq W $fuE <l q{' GF $tfict -ft-olr Ar nfiq {qcr
lur{Rt[q cu$ *ft-on q?F Ev efq EIS q{ \o?F{ qftB Es qtfttrtd qlfi W
€rs r"
rr|$[E-fis qrR{rff{ v 1( \) qsqq c(clq< sffsfl-ft Rfr< > q q e > qv Rk< qrs
fifrrs qvrc sc< r

<l(EmrEr qrfri ccwri-d w{qqrft Rfi< rcq ffi fircq :-


)q1 r (5) q(wqir qTq-{ Rqor- 'Pisll't sfrca- AK{ csF qq'4i' ql ff'ft$krf
cc$qq sR$ rqre frfiv.str< Gt"F sfrrT{ *, 66 qc{ qtcs olrisjl't sRrs
ffi
tK+, q-{s. ffi
tvisitc'R q-{r c+I{ Ftdq q'{tm{ ll,
.o-K 16 qlrs cq, csF qqqi <fr con sR6i EIfi Fra{, qel<t qelqcFlo coF
fi*q-< qaq<t T-Gr-{, Etql RftE -fi-sF ffT Rr<D-dl:[F E{m{ <lsjt(.tcs <tn fiF
"[Rrr{ qrqEEl qcrycq "[5 oR* eqrq €r< ql r

1q; -ftot< v++ {ft -ft-fi<< 'fc Tlt' e[r+


qcm fi
ftfi c+l-q Fr<rq 6R< qtRq
qcnds{, vpt Rcq gtfi *ft-d< s.{o g-s'rq ffi< cqr qtcu cifr{Iffid
"ilq6
sq q{Rm,i (l) qet qflr< 'frsTt{ sf,fuT q{sa q<qqqwrh< qlm T{j' cft1 r

dt qrr iilrtre qr< e, q(frqn srq c1dt6 \flt{ {R qt<irq qfl<fu dfrs
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smtqr;K s{t {Et qrme r Fdq{ft frfi* rqc frfke qfufr-s"l$-flg EE 16 qlc{tet $-{l
qcarq; (>) "?.'{[s frFlEqT{ sl"l{ +Rr<q, q<< (q)
't'r\9-nr'r{ c{,Fr s.l-?rct
qt r:' qsfr{fff{ sc({) q'Sqq q<(cKsqlft frf\< rqq ffi
.rcqrq qV];I {c{t csF{
c-{ ({t I {trq,tcrt tgs 6slq qq['rt{ G-fi stq F.'rcs qr{ iot firnol :-

s) &fr {risll'tet@< FrIT qtt-{ o-ccaq m-lbt ccR$fid gq(q) qSEErq qrq
"?fs3t{RF
'fd1c{ktt l"
q) Gfr
'tq-slttf'E rqrs frqr+q r

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cffiEBl6("1) s ('i) {(rcq-dFT{E"ffftRfiq-d3tfr tdcta-{cuqm r mftwF


q?tlr* frcnsft< trflq s-{ro E{ \o'f Erq et c{, c(R{trffi sc(f) q-{cqcq <Et qcl-Cq

'"ls<{s 'rqcft't r" fu futr< eq tris]lut'rq <I ""rq" frqcs sc< q<i slre ft
40 The Ishtiaq Papers

alt-oK crrsefi c(R{F Tsl s{fi sr{ FFfuffi Rflns <fl qcrrq {I q({rriit cqqrT{
q(( cci qrs -ftd-<lT sr$d"t Tir(s g{ I

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c(crT {6e q3 e.{( "r<<€fu qrs scF6-{kt c(m{ft sW q6gQ r E"im <Ffu
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crt r offqtft fiiicT{ e1qrd15 qqrdn a{c+ r

qm fi ccft$r+d sc(q) w$qq oQ qrs q$s q<wqr w{qqrft Rfi.< rqq


frfi Rr<E-{ sR \oT-{s qil *r? qK c{, c(R{md sq(r) Er{qqrq< wd< qtievlr c{t{
"FisiH'rq "?trK sb3 "afecIGrt'r" q[s Erq Eqr< <f{s ffi 46i T{sF q-{t]t
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s3ttrt I

q1frvm {cfrqfi-s fr{-{ ss q{cuc(q <Ffb qvq q firqq :-


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oc{ Tq6s fiFto "ttq dTn q|mr cerrc {pisl1'l F-{r 4r<T q<q sqx"ttq rfu qH{ Tdl
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sr{('Es,l- q<r
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qlgn 6R q1l1 ccfrs {q-siltt s-fis 4rrtr{ r

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qt{k srl) q<(-ftfis{ nrq<fr q(
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The Caietaker Notion: Genesis' 41,

q-<rF< c(fr{l{ 4K )o) qsq[h qm W qs{fd fiT{ fr1g <arq; qil Fffiq :-
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qt't|l{R c(R{tcm )bo, )b) s )bt q{ruEq
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sl$qq'erfl frrc't :-
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