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FOR

Staff Correspondent
Justice Md Abdul Wahhab Miah justified the constitution's 13th amendment, which introduced the caretaker government system, saying that it was incorporated in the charter to institutionalise democracy by holding credible elections.
"Free and fair election is an essential pre-requisite for a democracy.
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Unless a free and fair election is ensured, democracy cannot survive," Justice Wahhab observed.
Justice Nazmun Ara Sultana supported his observations.
Justice Wahhab said, "Without a credible election, democracy becomes a mockery and in the process of establishing democratic polity as a whole 'exercise of the governmental powers for the interregnum [90 days period of caretaker government] cannot be destructive of the democratic values enshrined in the constitution'... ”
Hesaid,“...asamatterof fact, this interregnum reassures and reaffirms the democratic continuity and succession of power through democratic process by ensuring free and fair election.”
Echoing the arguments placed by some senior legal experts as amicus curiae (friends of court) during the hearing of an appeal, the judge said for various reasons, democracy was a twilight affair in Bangladesh.
“Democratic process
was thwarted many times and with the exception of the 1954 elections, all elections in this country under a party government were not free and fair,” he said.
“There were widespread allegations of vote rigging and manipulation of the elections by the party in power in the parliament election held in 1973,1979, 1986, 1988 and February, 1996."
He said elections held under the political government were tainted with manipulation, rigging and hijacking. The only philosophy was to win the election by whatever means and it reached rock bottom in the by-election of Magura(1994).
The Magura by-election did not bring about or threaten any constitutional chaos, as alleged, but the rigging of the by-election resulted in a complete loss of credibility in the electoral process.
He said the 13th amendment was passed to preserve and ensure democracy and effective participation of the people in the affairs of the republic.
“And it is incorrect to say
that the exercise of government powers for the interregnum period as envisaged by the impugned act is destructive of democratic values,” he said.
Justice Wahhab said there was no illegality in holding the last general election (2008) under the caretaker government system.
The judge said the 13th amendment did not destroy any basic structures of the constitution.
He disagreed with Justice Imman Ali's finding that the non-party caretaker government system had become unworkable owing to the improper exercise of constitutional powers by the then president, which led to the unnatural and unconstitutional state of affairs in 2007.
Justice Wahhab also disagreed with Justice Imman who said, “In order to avoid recurrence of such a situation, the mode of setting up of the interim government, by whatever name it may be called, is to be replaced by another system."