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News Analysis

Caretaker system can still be legal

SHAKHAWAT LITON and ASHUTOSH SARKAR
A restoration by parliament of the nullified constitutional provision relating to the caretaker government system will be legal since the Supreme Court has said the system can be kept in place for two more
terms.
The Supreme Court's full verdict on the constitution's 13th amendment case may offer a guideline explaining the way in which the caretaker government system can be used for a specified period, says a source close to former chief justice ABM Khairul Haque. Justice Khairul Haque, it may be noted, is now in the process of writing the full judgement.
Parliament, if it wishes, may reintroduce the now defunct model of the caretaker government system or introduce a new model of it by amending the constitution. The act will be aimed at holding two more parliamentary elections under the caretaker government system, as the ex-chief justice may explain in the full verdict.
The source said Justice Khairul Haque, who led the Appellate Division into declaring the provision for a caretaker government system unconstitutional and void on May 10 last year, may explain in detail the three "age-old principles" cited in the short order with regard to holding two more national polls under the lapsed caretaker governmentsystem.
The three principles are the following: necessity makes it lawful, safety of the people, and security of the state are the supreme law.
The verdict, however, triggered widespread controversy as many jurists and politicians dubbed it selfcontradictory. They questioned how the next two parliamentary elections could be held under an “illegal” system. Many feared the verdict would deepen the political crisis over the holding of the next parliamentary election.
The Awami League-led government did not wait to get the copy of the full verdict. On June 30 last year it
swiftly scrapped the caretaker government system through amending the constitution. In its opinion, an "illegal system cannot be kept in the constitution".
In the brief verdict released immediately after the judgment, the apex court, however, said the system might be retained for holding two more parliamentary elections on the three age-old principles.
The source said the hurried abolition of the caretaker government system had disappointed the former chief justice and at one stage he even declined to write the full verdict.
He, however, changed his mind, considering the significance of the verdict. He will finish writing the verdict soon, the source said.
The latest development has been communicated to the Appellate Division, according to the source.
Asked what would happen if an individual challenged the legality of the reintroduced caretaker government system, the source argued that the apex court should not entertain such petitions as it has already permitted the system to be used for two more terms.
The source said the full verdict would also suggest making the Election Commission stronger.
Some legal experts still hope the full verdict, once released, may open a window to restoring the caretaker government system in order to minimise growing public fears of possible political unrest ahead of the next electoral exercise.
A week after the 13th amendment verdict, Justice Khairul Haque on his last day in office as chief justice
on May 17 last year, told The Daily Star that there was nothing confusing or contradictory in the verdict.
“We have tried to clear the legal position on this issue in detail in our verdict. You can understand everything if you read the short order [of the verdict] properly,” Justice Khairul told reporters.
In response to a query as to whether the caretaker government system would remain in place following the verdict, he said, “We have given this verdict considering all legal aspects, the country and its people and the existing situation."
Soon after the court's verdict, politics took a new turn over the caretaker government system. The caretaker formula was introduced in 1996 after vigorous street agitation in its favour by the now-governing Awami League.
Meanwhile, the parliamentary special committee on constitutional amendments drafted proposals for keeping the provision of the caretaker government system by bringing about some changes in the system. But Prime Minister Sheikh Hasina, who is also chief of the ruling Awami League, did not agree with the special committee's proposals. Parliament on June 30 abolished the system by passing the 15th amendment to the constitution.
The main opposition BNP and its like-minded parties have strongly opposed the move, making it known that they will not take part in the next parliamentary elections, to be held in early 2014, if they are not held under a caretaker government.