After 36 years of existence, the sacrifices made by hundreds of thousands of Bangladeshis for the freedom of their country have gone in vain. The people of Bangladesh fought a bloody war against the Pakistan Army in the name of freedom, equality, justice, humanity and a society free of exploitation. But Bangladesh has not attained the dream for which so many laid down their lives in 1971. As the current interim administration in Dhaka digs itself further into unconstitutional muck, this realisation becomes starker by the day.

Against January's backdrop of political violence and increasing frustration, the imposition of emergency was initially welcomed. Optimism as stoked by a series of praiseworthy actions by the newly appointed government, particularly the crackdown on corruption in Bangladesh's political and business circles. But alas! Though it promised much at first, the interim government has essentially followed in the footsteps of past governments, particularly in its casual dismissal of constitutional provisions on governance.

The first problem is the current administration's understanding of the term interim. The institution of the non-party caretaker government, vested with the specific responsibility of overseeing the impartial handover of power from one administration to the next, entered Bangladesh's Constitution in 1996. Article 126 of the Constitution mandates that the government must hold elections within 90 days of the dissolution of the previous Parliament. Article 58 B(1) says that the interim government must relinquish its power as soon as the new Parliament is constituted and a prime minister elected. All previous caretaker governments since 1991 conducted elections within the stipulated 90-day window. This is the first time that such an administration has failed to do so, and is instead working to maintain its own position. But by the end of July, it had been in power for almost exactly 200 days.

The caretaker administration's three-month window expired on 12 April. On that day, Chief Advisor Fakhruddin Ahmed declared that elections could not be held before the country's endemic political corruption was tackled; he included only the vaguest mention of this being a possibility by the end of 2008. In mid-July, this push-back date was finally confirmed by newly appointed Chief Election Commissioner Shamsul Huda.

A second problem, given the government's reluctance to conduct elections in the near future, is that Iajuddin Ahmed was elected president on 6 September 2002 for a period of five years. His term will expire in September of this year. If elections are not conducted before then, further political confusion will emerge.

A third difficulty in the current situation is the mechanism of the emergency ordinance promulgated on 11 January, the day before Fakhruddin Ahmed assumed his position as Chief Advisor. Bangladesh's Constitution dictates that an ordinance declaring a state of emergency requires the approval of the prime minister. But the Chief Advisor, who enjoys the status of prime minister under the caretaker government, was appointed only after the ordinance was put in place. This state of emergency has subsequently suffered from a major constitutional flaw from the very start. Furthermore, given that the Constitution stipulates that any state of emergency will end after 120 days, the emergency expired on 13 May. Interestingly, the government has made no attempt to extend the emergency ordinance, instead continuing to function as if it has not lapsed.

No opposition
Fakhruddin Ahmed's administration is mandated with the task of carrying out 'routine' functions, and arranging for elections to take place as soon as possible. But far from concentrating on creating an atmosphere conducive to elections, the interim government has made significant policy decisions, such as the privatisation of state-owned enterprises, in particular in the financial sector. Meanwhile, extrajudicial killings by the army and police have caused considerable concern, as has the arrest of hundreds of people without due process of law.

It is disconcerting that, despite all of this, civil society in Bangladesh has remained almost completely silent about the illegality of the caretaker government's rule and the role of the military in backing the administration. At the time of writing, no one had approached the courts to lodge a case. Those who might have done so are undoubtedly afraid of harassment or worse – trepidation that has been heightened by the 16 July arrest of Awami League leader Sheikh Hasina, one of the very few to have raised the issue of the regime's unconstitutionality.

Mohammad Amjad Hossain is a former Bangladesh diplomat, based in the US.
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Himal Southasian