The Appellate Division of the Supreme Court on Tuesday prospectively declared void the 13th Amendment to the constitution that had made provisions for an election-time caretaker government.
The seven-member Appellate Division bench, headed by chief justice ABM Khairul Haque, however, said that the next two general elections could be held under caretaker governments.
'The parliament, however, in the meantime, is at liberty to bring necessary amendments excluding the provisions for making the former chief justices or the Appellate Division judges as the head of the non-party caretaker government,' the court said.
The chief justice pronounced the short order of the judgement in the appeal against the High Court verdict delivered on August 4, 2004 declaring lawful the 13th Amendment to the constitution.
'The appeal is allowed by majority without any order as to costs,' the chief justice said in the short order.
No observations of the court and neither the judges, who gave opinion for scrapping or upholding the caretaker government provisions, could be obtained, as the court pronounced the short order only.
'The judgement in detail would follow,' the chief justice said in the short order.
The six other members of the bench are Justice Md Muzammel Hossain, Justice SK Sinha, MA Wahhab Miah, Justice Nazmun Ara Sultana, Justice Syed Mahmud Hossain and Justice M Imman Ali.
The ruling Awami League-led alliance and most of the left-leaning political parties welcomed the judgement.
The main opposition Bangladesh Nationalist Party did not give any instant reaction.
The party's acting secretary general, Mirza Fakhrul Islam Alamgir, said the party would give its reaction after discussing the verdict in the party forum after obtaining a copy.
The party's standing committee member Moudud Ahmed, also former law minister, in his personal opinion, said the court ruling would push the country into further constitutional and political crises.
'The caretaker government system had been accommodated in the constitution over a political issue – holding credible elections. This verdict of the apex court will push the country towards further constitutional and political crises,' he told reporters after the judgement.
Moudud found the court verdict 'contradictory'. 'The full text of the verdict is not available yet. What we have heard so far – the verdict on
the one hand says the caretaker government is unconstitutional and undemocratic, and allows it to prevail for the next 10 years on the other.'
Senior Supreme Court lawyer Rafique-ul Huq, who was among the nine amici curiae in the case, told reporters that the ruling itself was 'contradictory'.
'If the system is illegal, how elections to the 10th and 11th parliament can be held under the void provisions,' Rafique said.
The ruling also says that parliament can bring about changes in the constitution dropping the provision for appointing the last retired chief justice and Appellate Division judges as head of the caretaker government, but it does not mention who will be the head of the caretaker government, he said.
Expressing similar views, Supreme Court Bar Association president Khondker Mahbub Hossain said, 'I am confused about the ruling as it is unclear.'
'It is not clear what it [the court] really wants to say through the verdict,' Mahbub said adding that the verdict might create a political instability in the country.
Holding elections under a caretaker government is necessary given the political reality of the country, as free and fair election is a precondition for democracy, Mahbub said.
He said, 'We hoped that democracy and the independence of judiciary might be upheld through a proper directive of the court upholding the caretaker government provisions excluding the judges from the caretaker government.'
Appellants' counsel MI Farooqui said, 'The Appellate Division has legalised elections to next two terms under the void amendment to the constitution because of 'doctrine of necessity.'
If parliament does not amend the constitution deleting the provision for appointing the last retired chief justice as the caretaker government's head, the chief advisers to the caretaker governments during the 10th and 11th parliament elections will be appointed under the existing provision,' he added.
The court has protected democracy, constitution and the judiciary through the annulment of the 13th amendment, he said.
Attorney general Mahbubey Alam said that the court ruled for holding the next two general elections under the caretaker government to avoid political instability.
In the short order, the court said, 'Elections to the 10th and the 11th parliament may be held under the provisions of the 13th amendment to the constitution on the age-old principles, namely, quod alias non est licitum, necessitas licium facit (that which otherwise is not lawful, necessity makes lawful), salus populi suprema lex (safety of the people is the supreme law), and salus republicae est suprema lex (safety of the state is supreme law). '
The Appellate Division delivered the judgement after hearing the appeal filed in 2005 by Supreme Court lawyers late M Saleem Ullah, Ruhul Quddus, now additional High Court judge, and Abdul Mannan Khan against the High Court verdict.
The sixth parliament passed the 13th Amendment Bill on 28 March, 1996, incorporating the provision for the 'non-party caretaker government' in the constitution for holding free and fair general elections amid a situation when political parties were waging a mass movement to pull down the BNP government elected on February 15, 1996.
The three Supreme Court lawyers on January 25, 2000 filed the writ petition challenging the 13th Amendment, saying that the democratic structure of the government was the basic principle of the constitution and people's elected representatives should run every tier of the administration according to the preamble and Articles 8 and 69 of the constitution.
A special High Court bench of Justice Md Joynul Abedin, Justice Md Awlad Ali and Justice Mirza Hussain Haider, after hearing the writ petition, delivered the verdict on August 4, 2004 declaring legal the 13th Amendment.
If democracy is accepted as a basic structure of the constitution, the 13th Amendment has not destroyed the basic structure, the High Court observed in the verdict.
The High Court, however, had allowed the writ petitioners to appeal against the verdict without any permission of the Appellate Division.
On April 6, the Appellate Division completed the hearing of the appeal but did not set a date for delivery of the verdict.
The court heard senior Supreme Court lawyers TH Khan, Kamal Hossain, M Zahir, Rafique-ul Huq, M Amirul Islam, Mahmudul Islam, Rokanuddin Mahmud and Ajmalul Hossain as amici curiae (friends of the court).
Of the eight amici curiae, TH Khan, Kamal, Amirul, Mahmudul and Rokanuddin spoke in favour of the caretaker government system while Rafique and Zahir suggested reform of the system by dropping the provision for appointing the last retired chief justice as chief adviser to keep the judiciary out of controversy.
Ajmalul said that the caretaker government system should be declared illegal as it was introduced in violation of the basic spirit of the constitution.
The attorney general, Mahbubey Alam, argued that the provision could not be declared illegal as 'it was necessitated on the historic demand of the people in order to restore their voting rights and to protect democracy'.
Mahbubey said that the system of caretaker government was still necessary, but if it required any amendment or ratification, parliament can play its role.
With Tuesday's judgement, the Appellate Division so far scrapped in entirety two amendments and one partly out of a total 14 amendments to the constitution. The Appellate Division had earlier declared illegal the 5th Amendment, made through martial law proclamations. It had also declared void partly the 8th Amendment made during the regime of HM Ershad. The other part of the 8th Amendment, which declared Islam the state religion, however, is yet to be challenged in the court.
The High Court on August 26, 2010 declared void and unconstitutional the 7th Amendment to the constitution that had legitimised the martial law regime of HM Ershad. The Appellate Division on Tuesday concluded the hearing in the appeal against the High Court verdict and said that the judgement in the appeal would come up any time.
Source: New Age