M Moneruzzaman
T H Khan, the senior most Supreme Court lawyer argued on Thursday that the 13th amendment which introduced the system of non-party caretaker government in 1996 had no way destroyed the spirit of the Constitution because it only strengthened democracy.
He was arguing before a seven-judge bench of the Appellate Division, chaired by the chief justice ABM Khairul Haque which was hearing an appeal filed by three Supreme Court lawyers in 2005 against legality of a High Court verdict that had declared the system of non-party caretaker system lawful.
The Supreme Court had earlier appointed Khan, an amicus curiae, a legal term in Latin, meaning 'friend of the court', to assist the court arrive at a decision on whether or not the election time system of unelected non-party caretaker government could destroy the democratic spirit of the Constitution and undermine the independence of the judiciary.
During hearing of an appeal against a High Court verdict that had declared the 13th amendment valid, TH Khan also argued that the article 141A of the Constitution introduced to the Constitution through the second amendment in 1973 provided for the proclamation of the emergency which threatens democracy by suspending fundamental rights.
Khan refuted the argument of the counsel of the appeal petitioners that the system non-party caretaker government of which a former chief justice becomes the head hampers independence of the judiciary.
He also refuted their argument that the former chief justice became subservient to the government by becoming the head of the non-party caretaker government, saying 'I do not think so as there were no controversies over the integrity and quality of three former chief Justices—Justice Shahbuddin Ahmed, Justice Habibur Rahman and Justice Latifur Rahman—who were appointed the heads of caretaker governments in 1991, 1996 and 2001.
Khan argued that if emergency does not destroy democracy, non-party caretaker government also cannot destroy democracy.
He described emergency as 'tsunami for democracy' because when emergency is proclaimed democracy simply disappears.
Khan said that one has to remember it that there was no provision for emergency in the Constitution of the Republic when it was adopted in 1972.
Khan said Bangladesh does not require democracy of the type of Somalia or Ivory Coast.
He said to ensure undiluted democracy Bangladesh must continue with the system of non-party caretaker government at the time of election.
Khan said that the non-party caretaker system was the imperative of the time and in the interest of democracy.
At one stage, the chief justice ABM Khairul Haque observed that parliament exists even during and after emergency, but it (parliament) ceases to exist during the tenure of a non-party caretaker government.
He said that during the tenure of election time non-party caretaker government, the people's elected representatives do not run the government as the Constitutions requires.
Khan pointed out that a non-party caretaker government runs the administration for holding free and fair elections acceptable to all only after the dissolution of parliament at the end of the tenure of an elected government.
The chief justice recalled that immediately after the assassination of US president John F Kennedy on November 22, 1963, vice president Lyndon B Jonson took oath of office on board US Air Force One so that there was no vacuum in the office of the presidency.
He said that the Constitution does not allow any gap between democratic governance.
He said, 'There has to be continuity of democracy. There can be no gap here.'
The court adjourned the hearing until March 28 when Rafique-ul Haque would be requested to make his submission as amicus curiae.
A three-judge special bench of the High Court Division, comprising Justice Md Joynul Abedin, Justice Md Awlad Ali and Justice Mirza Hussain Haider, in their judgement delivered on August 4, 2004 had declared the 13th amendment to the Constitution brought by parliament in March 1996 as lawful.
Three Supreme Court lawyers had filed the writ petition in January 2000 challenging the legality of the amendment to the Constitution that had introduced the system of non-party caretaker government for holding parliamentary elections.
In 2005, they filed the appeal against the judgement of the High Court Division.
Of the three petitioners, only Abdul Mannan Khan continues in the legal profession, Ruhul Quddus has been appointed an additional judge of the High Court Division and M Saleem Ullah is dead.
Read the original story on the daily New Age
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