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Unelected people still part of govt

Say the judges who favour caretaker system in 13th amendment verdict

Shakhawat Liton
The constitution still has provisions that allow a large number of unelected people to govern the country, even though the caretaker government system has been scrapped over its composition of unelected persons.
In the full verdict on the 13th amendment to the constitution, three Appellate Division judges, who opposed declaring illegal the provision for the caretaker system, discuss how technocrat ministers and women MPs without being elected by the people are governing
SEE PAGE 19 COL 5 FROM PAGE 1 the country.
The judges note that the existing constitutional provisions allow the cabinet — which turns into a nonelected body after the dissolution of parliament—to run the country for 90 days until the new cabinet is formed through election.
Even when the caretaker government system was in force, the constitutional provisions used to allow the cabinet to continue functioning for 15 days after the dissolution of parliament.
The three judges - Justice Abdul Wahhab Miah, Justice Nazmun Ara Sultana and Justice Muhammad Imman Ali — also say there is nothing wrong in the constitutional provision allowing a nonelected caretaker government to hold office for a maximum of 90 days to oversee the national election.
In his dissenting verdict, Justice Wahhab Miah cites article 56 (2) of the constitution that provides for the appointment of nonparliament members as ministers. The article says the number of such ministers can go up to one-tenth of the number of the ministers appointed from among the members of parliament.
“Therefore, there is no constitutional problem in the thirteenth amendment making provision for unelected persons to be chief adviser and advisers," he continues. “At present there are two cabinet ministers and one minister of state in the cabinet who are not members of parliament”
Justice Nazmun Ara Sultana agrees with Justice Wahhab.
Former chief justice ABM Khairul Haque too thinks the current provision for technocrat ministers is against the fundamental principles of the original constitution of 1972. Justice Haque, who led the seven-member Appellate Division bench that in a majority verdict declared the 13th amendment illegal, expresses this view in the full text of the judgment released last week.
Justice Imman Ali says, "The democratic character of our parliament is unlike those of other countries, inasmuch as our system allows for unelected persons to be made technocrat ministers and allows participation of female members of parliament who are not directly elected by the people to govern the country.
"Thus, in any event, ours is not strictly a true democracy since non-elected persons are able to take part directly in the governance of the country. Those technocrat ministers
and female members in the reserved seats do not represent any members of the public."
However, Justice Imman observes, since this state of affairs is permitted by the constitution, it can be said to reflect the will of the people.
“Hence, if the people can choose by provision in the constitution to be governed by non-elected ministers, and indirectly elected members, then there can be no harm in the people wanting to be governed by non-elected persons for a period of 90 days, knowing full well that they choose to do so in the belief that they will thereby achieve a free and fair parliamentary election which is the fundamental basis for democracy, a basic feature of our constitution.”
Justice Wahhab says that with the dissolution of parliament either for the prime minister's losing majority support or for expiry of its tenure in line with the constitutional provisions, lawmakers, including the prime minister and his or her other colleagues in the cabinet, cease to be elected representatives of the people and they no more remain responsible to parliament and thus to the people.
So, he explains, the character of the unelected chief adviser and the advisers of non-party caretaker government is the same as that of the prime minister and his or her other cabinet colleagues after the dissolution of parliament.
Justice Wahhab also says that during the non-party caretaker government rule, the president who is elected remains the head of the state. Therefore, the republic character of the state and the constitution is not lost.
“The argument that even after the dissolution of parliament, the prime minister and his or her other colleagues continue to be elected representatives of the people because of a proviso to clause (3) of unamended article 123 and article 72 (4) of the constitution is absolutely fallacious...," he adds.
Justice Imman Ali comes up with a similar explanation. He says the prime minister and other members of parliament are elected to represent their constituents for five years from the day they take office till dissolution of parliament or earlier if they lose the mandate of the people and parliament is dissolved by the presiden t.
“Thus to think that the prime minister and the ministers who continue after the dissolution of parliament to hold office are representatives of the people is a fallacy."