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15TH AMENDMENT TO CONSTITUTION
HC scraps part that abolished caretaker system
Appellate Division to have final say on its restoration; system for referendums restored
ASHUTOSH SARKAR and ASIFUR RAHMAN
In a landmark verdict, the High Court yesterday scrapped a part of the 15th amendment to the constitution that abolished the non-partisan caretaker government system.
The verdict removes an obstacle to reintroducing the system for holding parliamentary elections.
The court also restored the provision for holding referendums for amending the constitution.
The abolition of the non-partisan caretaker government system has destroyed democracy, the process of free and fair elections, independence of the judiciary and the sovereignty of people, which are the basic structures of the constitution, observed the HC bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury.
Delivering the verdict on two writ petitions, the bench also said the Appellate Division of the Supreme Court will make the final decision about the restoration of the caretaker government system as review petitions on a verdict on the amendment are pending with the apex court.
Attorney General Md Asaduzzaman, however, believes the next two polls can be held under caretaker governments even if review petitions remain pending with the Appellate Division.
A full bench of the Appellate Division is scheduled for January 19 to hear three review petitions that challenge a 2011 verdict that scrapped the system. The BNP, Jamaat-e-Islami, and five citizens lodged the petitions.
After the verdict was delivered yesterday, Mohammad Shishir Manir, a lawyer for Jamaat, told The Daily Star, “The parliament has to pass a law in line with the judgment. Since there is no parliament now, the government may pass an ordinance.”
Contacted, eminent lawyer Shahdeen Malik said, “Reviving the caretaker government system certainly reflects people’s expectations.
“Articles 7A and 7B [abolished yesterday] were in conflict with the constitution, so it was expected that these would be declared unconstitutional. Bringing back the provision for a referendum is also a welcome decision.
“Overall, everyone would be happy with the judgment. It will pave the way for a more democratic Bangladesh.”
Citing writ petitions and lawyers’ arguments, the HC bench led by Justice Farah Mahbub observed that after the caretaker government system was abolished, the country saw three consecutive elections that did not reflect the will of the people and led to the July uprising, the HC said.
The bench observed that the 13th amendment introduced the caretaker government system in 1996 to ensure free and fair election and to strengthen democracy, and therefore, the 13th amendment became part of the basic structure of the constitution.
The Appellate Division in its judgment on the 13th amendment had asked for holding two national elections (10th and 11th) under the caretaker government system, but after the 15th amendment, those elections were held under partisan governments.
On June 30, 2011, the Jatiya Sangsad passed the 15th amendment. With that, Islam’s status as the state religion was retained and “Bismillahir Rahmanir Rahim” with its translation “In the name of Allah, the Beneficent, the Merciful/ In the name of the Creator, the Merciful” became a part of the constitution.
The amendment also introduced the provisions for holding parliamentary polls within 90 days before a parliament’s tenure ends; gave more powers to the war crimes tribunal; and made it mandatory to display the portrait of Yesterday,
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