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CARETAKER GOVT SYSTEM

Not all judges ruled it illegal

4 judges for scrapping, 2 for continuation, one leaves it to JS; full judgment released

SHAKHAWAT LITON and Ashutosh Sarkar
The Appellate Division of the Supreme Court last night released its full verdict declaring illegal the constitutional provision for a non-party caretaker government system.
All seven judges of the apex court bench that delivered the
historic judgment over 16 months ago put their signatures to the full text around 10:00pm yesterday.
Of the seven judges, four — former chief justice ABM Khairul Haque, Chief Justice Md Muzammel Hossain, Justice SK Sinha and Justice Syed Mahmud Hossain — were in favour of
declaring the caretaker provision unconstitutional; two -- Justice MA Wahhab Miah and Justice Nazmun Ara Sultana — were for keeping the provision; and one — Justice Md Imman Ali -- opined that the matter should be left to parliament.
In the present political context,
the complete verdict was deemed crucial to explaining how the next general election could be held.
The judges came up with the full judgment after holding meetings in two phases — for two hours since 11:00am and nearly three
FROM PAGE 1 hours in the evening.
Earlier on May 10 last year, the SC bench -- headed by the then chief justice Khairul Haque — passed a short order declaring illegal the 13th amendment to the constitution. The amendment mandated an elected government to transfer power to an unelected nonpartisan caretaker administration to oversee national elections on the completion of its term.
In the abridged verdict, the court said that two more general elections might be held under the system.
Khairul Haque at the end of March completed drafting the full verdict and submitted it to the Appellate Division for the comments of other judges who were on the bench.
In the full text, the former chief justice observed that the caretaker government system, though illegal, might be employed to oversee two more parliamentary elections, provided the Jatiya Sangsad decided to that end.
However, Justice Haque said, parliament may legislate to drop retired chief justices or Appellate Division judges from the caretaker government, as their involvement was not desirable for the sake of the independence of the judiciary.
Rather, he added, the caretaker government may be comprised of lawmakers.
In defence of adjudging illegal the provision for the caretaker government system, Justice Haque said the 13th amendment was against the basic structure of the constitution.
He explained how the amendment had undermined the people's sovereignty and the republican and democratic character of the state.
He also said the advisers of the caretaker governments were unelected and bore no link with people who were the recognised owner of the state.
Justice MA Wahhab Miah argued that the 13th amendment was introduced to institutionalise democracy through conduct of credible elections.
He said free and fair elections were a prerequisite for a functional democracy. Without them, democracy could not survive.
Justice Nazmun Ara Sultana supported his observations.
Justice Wahhab said that for various reasons, democracy is a twilight affair in Bangladesh. "The 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."
Justice Imman Ali said the non-party caretaker government system had become unworkable due to the improper exercise of constitutional powers by the president, which led to the unnatural and unconstitutional state of affairs in 2007.
He also said that a new system of interim government, by whatever name it may be called, should be put in place to avert a repeat of a situation like that of2007.
Justice Imman also noted that whatever new system is introduced, it will have to be
acceptable to the people for it to have durability. The people make their will known by exercising their democratic right through their elected representatives in parliament.
In May last year, the apex court's verdict triggered widespread controversy, as many jurists and politicians dubbed it self-contradictory. Many had feared the verdict would deepen the political crisis over the holding of the next parliamentary polls.
Amid growing public concern, the parliamentary special committee on constitutional amendment had opted to keep the provision by bringing in a few changes.
But Prime Minister Sheikh Hasina did not agree with the special committee.
And before the SC released the copy of the full verdict, her government abolished the caretaker government system by amending the constitution on June 30 last year.
Uncertainty now looms over the fate of the next parliamentary polls.
The BNP-led 18 party opposition combine maintain they will not join the next polls if held under the incumbent government without a non-party caretakersystem.
In this situation, political analysts predict the release of the full verdict may again generate debate in favour and against the caretaker system.
Some analysts, however, hope the full verdict may open a window for a political consensus to be arrived at on the installation of a nonpartisan government system during the next polls. FOR FULL TEXT, VISIT www.thedailystar.net