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AGAINST

Staff Correspondent
The next two national polls may be held under the non-party caretaker government at parliament's discretion, although the system is being declared illegal, for it undermined the people's sovereignty.
Former chief justice ABM Khairul Haque has come up with this FROM PAGE 1 amendment that introduced the caretaker provision.
Citing the ages-old Latin maxims -- “That which otherwise is not lawful, necessity makes lawful”, “Safety of the people is the supreme law" and "Safety of the state is the supreme law”, -- the former CJ said the decision whether the next two general elections would be held under the caretaker system shall be taken only by parliament.
"Although the 13th amendment to the constitution is illegal, parliament may take measures to constitute the caretaker government in new form to hold the tenth and eleventh national polls."
The House might enact a law scrapping the provision for making a retired chief justice or an Appellate Division judge chief adviser of the caretaker government, he said.
For the sake of the independence of the judiciary,
judges should not be involved in this process.
Rather, such a government should be formed with only elected lawmakers, said Justice Haque, who led the Appellate Division in pronouncing the historic verdict on May 10 last year.
The full text of the judgment was released last night.
Justice Haque said parliament may be dissolved 42 days before the polls, and a small cabinet can perform routine works of the state until the new cabinet takes over.
He also stressed the need for strengthening the Election Commission, saying all the officials involved with the polls should be controlled by the EC.
In defence of declaring illegal the provision for a caretaker system, the former chief justice said the 13th amendment was against the basic structure of the constitution.
In the full text of the verdict, he explained how the 13th amendment undermined the people's sovereignty and the republican and democratic character of the state.
He said the advisers of the caretaker government were unelected and had no link with the people, the owner of the state.
"Since they [the advisers] have no link with the people, the constitution does not give them any right to rule the country. Governance by consent is the precondition of democracy. Advisers don't have people's consent," he said.
Of those who were in the seven-member Appellate Division bench that gave the verdict, Chief Justice Md Muzammel Hossain --the successor of Haque --and Justice SK Sinha and Justice Syed Mahmud Hossain were in favour of declaring the caretaker provision unconstitutional.