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A shield against constitutional deviation

Mizanur Rahman Khan
Many experts have suggested that the 747-page verdict has become either infructuous or lost its teeth; primarily because of the annulment of the original amendment. It is the moot point, some argue. Contrary to this line of argument, I am inclined to suggest that despite serious limitations and several grey areas, this verdict could act as a shield, perhaps be instrumental, against any constitutional deviation in the wake of any situation which may evoke the Latin maxim --"people's safety is the supreme law."
There is a clear consensus among the seven judges in the verdict, to be precise unanimity among the judges, that two forthcoming elections can be held under caretaker governments. Yet, there is an unfortunate and disturbing consensus between the ruling party and the opposition not to embrace this unanimous position of the apex court. A drowning man clutches at a straw, as the saying goes. We may catch the dictum of this verdict if such an extraordinary situation arises. Yet I am trying to explore the legal options in good faith and thereby defend the spirit of the editorial of The Daily Star on this topic.
There is no disagreement that the transfer of power through a free and fair election participated by all parties is the real challenge for the future of democracy in Bangladesh. I can understand the likelihood of the repetition of February 1996 election scenario and am not unwilling to embrace it, but a repetition of the 1/11 scenario will be more dreadful. The former has the potential to create a breathing space while the latter might bring long-term despair. If an election akin to 1996 is held, we can argue that, despite the nature of the majority opinion, it will remain effective only until 2019.
It will be sensible, and expected, of the Election Commission that it will appreciate the essence of the verdict in its entirety. It should not act mechanically and wait for the auspicious moment of announcing the election schedule and hold an election "within 90 days." The EC should explore whether it now has a moral standing to remind the "executive authorities" to consider the majority view for holding two parliamentary elections under the "elected caretaker government." We wholeheartedly concur with the opinion of dissenting judge Md. Iman Ali that the selection of a nonpartisan PM would always be paramount in resolving the current impasse. It is well to bear in mind that he coined the expression "neutral interim government" instead of the "caretaker government."
If a person is selected to be the head of interim government then he or she can be elected through a by-election. This will not require any amendment to the present constitution. The fundamental basis of the majority judgment stands on the "elected MP theory" --that the government must be headed by an elected member of the parliament. But it is also worthy to note that they have suggested restoring Article 56(4) of the 1972 constitution, which will allow above mentioned nonpartisan elected PM to appoint unelected ministers up to six months.
The politicians should seize the opportunity as crystallised in the full verdict of the 13'" Amendment case. One may find fault in the majority judgment. One may even raise serious ethical concerns because the majority judges have broken the established judicial maxims not to alter anything that had been pronounced in the open court. They have shifted their position, articulated in the short order of the verdict,
from non-party caretaker government sans judges to "only elected caretaker."
Evidently, the author of the majority opinion did bring the changes with the unqualified support of three colleagues. However, three minority judges have registered their dissent underscoring the fact that these are not consistent with the original short order.
Yet I am inclined to argue that this shift can be considered technical rather than substantive. The suggestion for holding election before 42 days by dissolving parliament is also a "pious wish."
Whether the opposition party would continue to hold on to its initial reaction of rejecting the verdict in its totality is a million dollar question. The treasury bench, as we all can forecast, will remain silent. The leader of the opposition should look into the "two elections under caretaker government" option as delineated by the majorityjudges.
The ratios 4:2:1 of dissenting views of the judges indeed show the depth of division in our society over the nature of caretaker government during the forthcoming election. My reading of the verdict is that the all seven judges unanimously agreed that elections to the tenth and eleventh parliaments could be held under caretaker government.
The most bizarre argument made by a good number of experts since the verdict was published was to give too much weight on the "shall" and "may" relating to the two next elections formula. They are ignoring the spirit of said Latin maxim. The four senior-most judges, including the chief justice and two judges of the Appellate Division, expressed their "pious wish" that the two coming elections would be held under elected caretaker government, yet not with a partisan PM. That should be the focus of attention of the contending parties.
Someone may be curious to know what encouraged the majority judges to invent the "elected caretaker government" when they found the nonparty caretaker government constitutionally illegal. One may point to an interesting similarity between the invention of elected caretaker government, which was not discussed in the open court at the time of hearing, and the so-called "interim government" outlined by the PM.
It is important to note that the majority judges made a joint declaration somewhat concurring with the apprehensions of the amicus curie. The judges observed: "The senior lawyers of the country expressed apprehension that there would be anarchy if the ensuing election is held under party government. And we cannot ignore their view."
Therefore, the treasury and the opposition have an opportunity and are now in a position to find a solution on the basis of the judgment. The parliament and executive should accept the verdict --in its entirety and both in letter and in spirit.
If the opposition continues to spout venom, it will further erode the dignity of the highest court. They should also be cautious not to bring this institution in disrepute. The opposition should differentiate between attacking the ruling party and attacking the court. The parliament could be dissolved and reconstituted but the court is permanent.
The opposition may think it has many reasons to go down the path of confrontation. But this is a test for the politicians -- from both ruling party and the opposition --to choose the right course to resolve the impasse.
The writer is Joint Editor, Prothom Alo.