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HC declares caretaker govt provision valid

Staff Correspondent
A larger High Court (HC) bench yesterday declared valid the 13th amendment to the constitution that allows general elections under caretaker governments and observed the change does not dis-■tortthcbasic structure of the constitution.
Rejecting a writ petition challenging tiie validity of the constitutional amendment, the bench also ruled out the contention that the constitutional amendment would negativelyinfluencethejudiciary.
The court dismissed the contention of the petitioner's counsel that the constitution stipulates that an elected government will run the country, but the amendment made in 1996 allows chief advisor to the caretaker government, who is not elected, to ruleforthree months.
The larger bench of Justice Jainul Abedin, Justice Awlad All and Justice Mirza Hossain Haider started giving its judgement on the petition on July 27 before wrapping it up yesterday.
Supreme Court lawyer M Salimullah filed the petition on January 25, 2000, saying the democratic structure of the government is the basic principle of the constitution and people's elected representatives have to run the administration of every tier of tiie republic, according to the preamble and articles 8 and 59.
But non-elected persons run the caretaker government and it is beyond the basic concept of tiie constitution for democratic structure, he added.
The lawyer for tiie petitioner told reporters after the bench discharged the petition yesterday they would
appeal to the Appellate Division against the HC ruling. The High Court granted the petitioner the certificate forappeai.
The bench observed tiie provision of the caretaker government did not amend articles 8.48 and 56 of the constitution. The provision is temporarily suspended for three months, but not repealed nor amended and so, there is no need for a referendum on the 13th amendment.
Lawyers for both petitioner, respondents and 'amicus curiae' or friend of the court - who were appointed by the larger bench to assist and advise the court — earlier during the hearing criticised the provision for immediate past chief justice's becoming head of the interim administration. They argued ithamneredtheiudiciarv. The bench said the immediate past chief justice is appointed as chief advisor to the caretaker government because of his neutral role and the provision for such appointment is an outcome of people's confidence.
Experience shows that party government influences the state machinery to swing the election results in its favour, but the administration can remain neutral during the term of the non-partisan caretaker government, it further observed.
The three-member bench maintained that the amendment is not inconsistent with the constitution's basic structure, rather it helped institutionalise and strengthen democracy, which is the basic feature of the consti-
tution. Free and fair election is the heartbeat of democracy, which the caretaker government ensures.
The government as an institution and the Awami League (AL), Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami as major political parties were the respondents to the writ petition. Attorney General AF Hassan Ariff appeared for the government, Barrister Amir-UL Islam for the AL and Barrister Abdur Razzak for Jamaat.
No lawyer appeared for the BNP during the hearing.
Advocate MI Farooqui and Advocate Ruhul Quddus Babu stood for the petitioner. Barrister Rafiqul Haq and Advocate Abdul Wadud Bhuiyan were the 'amicus curiae'.