Dhaka, May 10 (bdnews24.com) — The Supreme Court has repealed the 13th Amendment to the constitution that introduced the caretaker government but said the next two general elections could be held under unelected rulers.
It, however, ruled that parliament may amend the charter deleting provisions that require the former chief justices or the judges of the Appellate Division to head the caretaker government.
The majority decision of a seven-member bench of the Appellate Division, headed by chief justice A B M Khairul Haque, was delivered on Tuesday, upon a petition against the High Court judgment that rejected an appeal challenging the 13th amendment.
The Supreme Court order says: "The Constitution (Thirteenth amendment) Act 1996 (Act 1 of 1996) is prospectively declared void and ultra vires the Constitution."
In the short order, the highest constitutional court said: " It is hereby declared: (1)The appeal is allowed by majority without any order as to costs. (2)The Constitution (Thirteenth amendment) Act. 1996(Act 1 of 1996) is prospectively declared void and ultra vires the Constitution.(3)
"The election to the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment on the age old principles, namely that which otherwise is not lawful, necessity makes lawful)…
"Parliament, however, in the meantime, is at liberty to bring necessary amendments excluding, the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the Non-Party Care-taker Government.
"The Judgment in detail would follow."
Attorney general Mahbubey Alam told bdnews24.com after the verdict, "The court rescinded the thirteenth amendment. It, however, said the next two general elections might be held under caretaker government for the sake of maintaining peace and law and order and for continuity.
"The court, at the same time, opined not to involve the judiciary in the process."
He later told reporters, "The next two elections can be held under caretaker government, but not beyond those. The constitution has to be amended by this time."
The petitioner's lawyer Advocate M I Faruki, in his reaction, told reporters, "It bodes well for the constitution and the people. We have been able to preserve the constitution.
"Election should ideally be held under the Election Commission, which is the case with our neighbour India," the lawyer added.
"Caretaker government provision in reality is another form of military rule. A number of sections of the constitution get suspended under military rule which we witnessed in Zia's tenure and also in Pakistani rule.
"Likewise, several constitutional sections are suspended during caretaker government," Faruki said.
The 13th amendment carried out in 1996 introduced the caretaker government system in the country.
As per the provision, subsequent governments have been elected in ballots held under such provisional governments after the previous elected governments ran their terms.
The full bench heard the petition from Mar 1 to Apr 6 and the views of Kamal Hossain, T H Khan, Rafique-ul Haque, M Zahir, Mahmudul Islam, Amir-Ul Islam, Roklanuddin Mahmud and Ajmalul Hossain as amici curiae.
The petitioners said in the petition that the caretaker government system goes against the republican character of the state.
In 2004, the High Court declared the caretaker government system legal following a writ petition by advocate Salim Ullah and several other lawyers challenging the legality of the amendment.
Thereafter, the petitioners moved the Appellate Division against the order.
Now, Mohammad Abdul Mannan Khan is treated the petitioner, as Salim Ullah died and another petitioner, Ruhul Quddus was made a High Court judge.
Khan, in his reaction, told reporters, "I am delighted at the verdict."
The full bench heard the petition from Mar 1 to Apr 6.
Although the caretaker government system was introduced in 1996, a similar instrument was already in operation, since the general election in 1990 was held under an interim government after military strongman H M Ershad was deposed.
The then BNP government in 1996 brought the amendment under pressure from the then opposition Awami League.
Questions were raised about the system when the military-backed caretaker government came during the state of emergency after the political crisis in 2006 to rule for nearly two years, well past its mandated term of three months.
During the ongoing parliamentary exercise to review the constitution, recommendations have been made to put a timeframe on the caretaker government.
Prime minister and Awami League president Sheikh Hasina suggested if the caretaker government fails to ensure elections in three months, the previously elected government would do the job.
Several leaders of ruling Awami League have been critical of the caretaker provision, but BNP has already declared it would wage movement if the system is scrapped.
Senior lawyers, who were nominated as amici curiae (friends of the court) of the hearing on the petition, have given mixed reactions over the verdict.
Of them, Ajmalul Hossain spoke against the system while others spoke for revision of the system.
Rafiq-ul Haque told reporters, "The verdict is slightly contradictory, because it says the 13th amendment is illegal from today but adds that next two general elections can be held under the [caretaker government] system."
"It might have been done to avoid anarchy," he added.
M Zahir said, "It is a nice verdict. We repeatedly said to keep the judiciary out of the caretaker government system. Our speech was reflected in the verdict."
He mentioned that the House was given the authority to enact law to keep justices away from the system.
Mohammad Amir-Ul Islam said the political parties will have to be responsible as the onus to find an alternative of the system lay with them.
"If they fail, the mammoth task will be on the last former chief justice," he added.
He said there was no alternative to free, fair and acceptable elections in order to maintain constitutional continuity and stability of democracy.
"The current Election Commission has already conducted many fair elections which is a sign of our success," Amir-Ul added.
Mentioning that the court instructed to keep justices away from the system, Rokanuddin Mahmud said, "Parliament is not bound to carry out the order. It can either obey or deny it."