The Bangladesh Government is mulling over not bringing in any amendment proposal on the caretaker government system as it wants to drop the provision from the country's constitution. In this regard, the first portion of the judgment of the Appellate Division of the Supreme Court will be placed as an argument. But the government will consider keeping the provision of the caretaker government system for one or two terms, if the opposition party reaches an agreement with the ruling party on other issues of the constitution amendments. This information has been received from very high-level of the government.
Meanwhile, concerned experts believe that the country has every possibility of entering a phase of political anarchy, if the caretaker government system is cancelled. It is sure that creation of such unrest in the country that will provoke the extraconstitutional forces to assume sate power. A two-year Army-supported unusual government assumed power in 2007 because of a hell bent attitude of the ruling party at that time and earlier occasions. That Army-supported government took unprecedented measures to suppress the country's political forces.
The experts believe that it will be very difficult to proceed with constitutional continuity without an understanding between the two major political parties.
Version of Government Side
The policymakers of the government believe that there is no scope to maintain the caretaker government system in the country without brining an amendment to the constitution as the 13th Amendment has been scrapped in a recent verdict of majority judges of the Appellate Division of the Supreme Court under the leadership of the just retired Chief Justice A.B.M. Khairul Hauqe. The court has opined for holding the next two general elections under the caretaker government, but the observation is not a part of the order. There is no obstruction to abolishing the caretaker government system from the constitution as the review verdict of the Supreme Court has made the 13th Amendment null and void. With this in view, the special parliamentary committee on constitutional amendment has already begun dialog on the matter. Most members of the committee have opined for abolishing the system.
The government policymakers at this moment want cooperation from the opposition party in abolishing the caretaker government system from the constitution. In the primary discussions most of the special committee members expressed the view that the government should abolish this provision from the constitution if the opposition party does not agree to accept the next caretaker government chief as per the desire of the ruling party. In this regard, their main argument will be that they have only complied to the court order.
The government will bring separate constitution amendment bills in the House on the issues relating to amendments, including the Fifth, Seventh, and 13th Amendments, cancelled by the higher court. The government is also considering changing the Election Commission rules and the Representation of People Order 1974 for holing elections in a neutral manner. There will be no need of caretaker government if election commission is strengthened. The government will bank on this argument. If necessary, the ruling party will start campaign on the issue ahead of elections.
In this context, Law Minister Barrister Shafiq Ahmed said that there would be no need for the caretaker government if the Election Commission was made stronger and independent. The law minister said: 'Our neighboring country does not have caretaker government. The Election Commission can hold free and fair elections maintaining independence of the organization. The Election Commission had made instances in holding the last upazila and municipality elections in a free and fair manner. Democracy will get an institutional shape if the Election Commission plays an impartial and stronger role.'
According to the law minister, the Appellate Division of the Supreme Court has cancelled the 13th Amendment of the constitution after reviewing the matter in the light of the constitution to uphold the charter. The court might have though that it would have been better if the country is run by people's representatives. Running the state by unelected people is contradictory to the constitution.
He said the Appellate Division has also ruled that the 10th and 11th parliament elections could be held under the caretaker government. It also observed that the former chief justice and retired judges of the Supreme Court should not the chief adviser of the caretaker government. The court in the judgment said parliament would decide on these observations with prudently and independently.
No Election Without Caretaker Government
In this regard, Barrister Moudud Ahmed, Bangladesh Nationalist Party (BNP) Standing Committee member told the Naya Diganta that the BNP would not accept if any amendment was brought to the constitution without understanding. He said that the Supreme Court had no jurisdiction to amend the constitution through its verdicts. This responsibility was entrusted with parliament, he said. He said: 'We are waiting. It will not be possible to understand what the government wants to do unless they table the constitution amendment bills in the house.'
BNP Acting Secretary General Mirza Fakhurl Islam Alamgir said: 'We have clearly said that no elections will be allowed to stage in this country without caretaker government. A person acceptable to all must be made the chief of the caretaker government.'
Opinion of Experts
Elderly lawyer and constitution expert Barrister Rafiq-ul Haque said that the Appellate Division verdict on the caretaker government system is contradictory. The court ruled that the verdict will have immediate effect. But it is also said that the 10th and 11th parliament elections will be held under the caretaker government. This is completely a self-contradictory verdict.
He said: 'Without being illegal the Thirteenth Amendment of the constitution, I proposed dropping the judges. Because, this provision is tarnishing the image of the judiciary. The Appellate Division declared the amendment illegal accepting our submissions. The court cannot formulate or amend laws. The elections could be held under the existing provision unless and until parliament changes the provision. The chief justice or the court cannot formulate or amend laws. The elections will be held under the caretaker government until and unless parliament changes the caretaker government system.'
Khandkar Mahbub Hossain, Supreme Court Bar Association president and senior advocate, said that it was not possible to arrive at a just conclusion regarding the Supreme Court verdict on the 13th Amendment of the constitution. This verdict has created confusion. The Supreme Court verdict has declared the 13th Amendment null and void and contradictory to the constitution. Again the verdict said the 10th and 11th parliament could be formed under the caretaker government. The verdict said: 'It could be.' If so who will determine the matter. Nothing has been said in relation to this.
He said that there is a parliament in the country. The Appellate Division is issuing instructions to parliament. At this, a question normally arises who is sovereign? Whether the country will run at the instruction of the Supreme Court? The verdict has undermined the role of parliament elected by the people. The judiciary could be saved if the Appellate Division gave a clear guideline. The scrapping of the caretaker government system without taking firm decisions on related issues might whip up agitations in the political arena.
Seeking anonymity, a former chief justice said that Bangladesh was likely to enter a phase of political anarchy if the caretaker government system was abolished. This will create such a volatile situation n in the country and might provoke extraconstitutional forces to seize state power. A two-year Army-supported unusual government assumed power in 2007 because of a hell bent attitude of the ruling party at that time and earlier occasions. The Army-supported government took unprecedented measures to suppress the country's political forces. He said that it would be difficult to continue the constitutional rule in the country without an understanding between the two major political parties. It seems that the opposition party would accept the abolition of the caretaker government system. It does not require mentioning that imposition of unilateral issues such as constitutional amendment would lead to recurrence of the abnormal timing of the emergency government.
History of Caretaker Government
The caretaker government system was inducted in the constitution of Bangladesh in 1996 through the 13th Amendment. Since then three elections were held under the administration. During every election, some commotion was created over the appointment of the chief adviser of the caretaker government. This commotion has assumed a dangerous shape at this moment as the chief justice of the country is being appointed violating seniority.
During the 2006 general elections, the last chief justice was supposed to become the chief adviser to the caretaker government. But Awami League did not abide by the constitutional provision. At one stage of rising controversy over the issue, an abnormal caretaker government took over the responsibility of the country. The Army-supported Fakhruddin-Moeen Uddin government ruled the country for approximately two years.
The hearing on the lawsuits regarding legality of the caretaker government at the Appellate Division of the Supreme Court began on 1 March. The court heard the submissions of senior lawyer Justice T.H. Khan, Dr Kamal Hossain, Barrister Rafiq-ul Haque, Dr M. Zahir, former attorney general Mahmudul Islam, Barrister M. Amirul Islam, Barrister Rokan Uddin Mahmud, and Barrister Azmamul Hossain QC as ameci curae (friends of the court). Among them, all amice curae excepting Azmalul Hossain QC opined for continuing the caretaker government system.
The Appellate Division of the Supreme Court, in its 17 May 2011 brief judgement, said the appeal was granted in a majority decision. The 13th Amendment-1996 has been declared as null and void and contradictory to the constitution forthwith. The 10th and 11th parliament elections can be held under the 13th Amendment. And at the same the security of the state and the people is the highest law. The parliament will have the liberty to enact amendment laws to cancel the appointment of the former chief justice and judges of the Appellate Division as the chief adviser of the caretaker government.
Amendment in Budget Session
The budget session of parliament begins on 22 May. There is a possibility of brining necessary amendments to the constitution in this long session of the house. Meanwhile, opinions were collected from various citizen forums for the amendments. A coordinated amendment proposal will be placed in parliament combining the opinions and verdict of the Supreme Court.
Meanwhile, concerned experts believe that the country has every possibility of entering a phase of political anarchy, if the caretaker government system is cancelled. It is sure that creation of such unrest in the country that will provoke the extraconstitutional forces to assume sate power. A two-year Army-supported unusual government assumed power in 2007 because of a hell bent attitude of the ruling party at that time and earlier occasions. That Army-supported government took unprecedented measures to suppress the country's political forces.
The experts believe that it will be very difficult to proceed with constitutional continuity without an understanding between the two major political parties.
Version of Government Side
The policymakers of the government believe that there is no scope to maintain the caretaker government system in the country without brining an amendment to the constitution as the 13th Amendment has been scrapped in a recent verdict of majority judges of the Appellate Division of the Supreme Court under the leadership of the just retired Chief Justice A.B.M. Khairul Hauqe. The court has opined for holding the next two general elections under the caretaker government, but the observation is not a part of the order. There is no obstruction to abolishing the caretaker government system from the constitution as the review verdict of the Supreme Court has made the 13th Amendment null and void. With this in view, the special parliamentary committee on constitutional amendment has already begun dialog on the matter. Most members of the committee have opined for abolishing the system.
The government policymakers at this moment want cooperation from the opposition party in abolishing the caretaker government system from the constitution. In the primary discussions most of the special committee members expressed the view that the government should abolish this provision from the constitution if the opposition party does not agree to accept the next caretaker government chief as per the desire of the ruling party. In this regard, their main argument will be that they have only complied to the court order.
The government will bring separate constitution amendment bills in the House on the issues relating to amendments, including the Fifth, Seventh, and 13th Amendments, cancelled by the higher court. The government is also considering changing the Election Commission rules and the Representation of People Order 1974 for holing elections in a neutral manner. There will be no need of caretaker government if election commission is strengthened. The government will bank on this argument. If necessary, the ruling party will start campaign on the issue ahead of elections.
In this context, Law Minister Barrister Shafiq Ahmed said that there would be no need for the caretaker government if the Election Commission was made stronger and independent. The law minister said: 'Our neighboring country does not have caretaker government. The Election Commission can hold free and fair elections maintaining independence of the organization. The Election Commission had made instances in holding the last upazila and municipality elections in a free and fair manner. Democracy will get an institutional shape if the Election Commission plays an impartial and stronger role.'
According to the law minister, the Appellate Division of the Supreme Court has cancelled the 13th Amendment of the constitution after reviewing the matter in the light of the constitution to uphold the charter. The court might have though that it would have been better if the country is run by people's representatives. Running the state by unelected people is contradictory to the constitution.
He said the Appellate Division has also ruled that the 10th and 11th parliament elections could be held under the caretaker government. It also observed that the former chief justice and retired judges of the Supreme Court should not the chief adviser of the caretaker government. The court in the judgment said parliament would decide on these observations with prudently and independently.
No Election Without Caretaker Government
In this regard, Barrister Moudud Ahmed, Bangladesh Nationalist Party (BNP) Standing Committee member told the Naya Diganta that the BNP would not accept if any amendment was brought to the constitution without understanding. He said that the Supreme Court had no jurisdiction to amend the constitution through its verdicts. This responsibility was entrusted with parliament, he said. He said: 'We are waiting. It will not be possible to understand what the government wants to do unless they table the constitution amendment bills in the house.'
BNP Acting Secretary General Mirza Fakhurl Islam Alamgir said: 'We have clearly said that no elections will be allowed to stage in this country without caretaker government. A person acceptable to all must be made the chief of the caretaker government.'
Opinion of Experts
Elderly lawyer and constitution expert Barrister Rafiq-ul Haque said that the Appellate Division verdict on the caretaker government system is contradictory. The court ruled that the verdict will have immediate effect. But it is also said that the 10th and 11th parliament elections will be held under the caretaker government. This is completely a self-contradictory verdict.
He said: 'Without being illegal the Thirteenth Amendment of the constitution, I proposed dropping the judges. Because, this provision is tarnishing the image of the judiciary. The Appellate Division declared the amendment illegal accepting our submissions. The court cannot formulate or amend laws. The elections could be held under the existing provision unless and until parliament changes the provision. The chief justice or the court cannot formulate or amend laws. The elections will be held under the caretaker government until and unless parliament changes the caretaker government system.'
Khandkar Mahbub Hossain, Supreme Court Bar Association president and senior advocate, said that it was not possible to arrive at a just conclusion regarding the Supreme Court verdict on the 13th Amendment of the constitution. This verdict has created confusion. The Supreme Court verdict has declared the 13th Amendment null and void and contradictory to the constitution. Again the verdict said the 10th and 11th parliament could be formed under the caretaker government. The verdict said: 'It could be.' If so who will determine the matter. Nothing has been said in relation to this.
He said that there is a parliament in the country. The Appellate Division is issuing instructions to parliament. At this, a question normally arises who is sovereign? Whether the country will run at the instruction of the Supreme Court? The verdict has undermined the role of parliament elected by the people. The judiciary could be saved if the Appellate Division gave a clear guideline. The scrapping of the caretaker government system without taking firm decisions on related issues might whip up agitations in the political arena.
Seeking anonymity, a former chief justice said that Bangladesh was likely to enter a phase of political anarchy if the caretaker government system was abolished. This will create such a volatile situation n in the country and might provoke extraconstitutional forces to seize state power. A two-year Army-supported unusual government assumed power in 2007 because of a hell bent attitude of the ruling party at that time and earlier occasions. The Army-supported government took unprecedented measures to suppress the country's political forces. He said that it would be difficult to continue the constitutional rule in the country without an understanding between the two major political parties. It seems that the opposition party would accept the abolition of the caretaker government system. It does not require mentioning that imposition of unilateral issues such as constitutional amendment would lead to recurrence of the abnormal timing of the emergency government.
History of Caretaker Government
The caretaker government system was inducted in the constitution of Bangladesh in 1996 through the 13th Amendment. Since then three elections were held under the administration. During every election, some commotion was created over the appointment of the chief adviser of the caretaker government. This commotion has assumed a dangerous shape at this moment as the chief justice of the country is being appointed violating seniority.
During the 2006 general elections, the last chief justice was supposed to become the chief adviser to the caretaker government. But Awami League did not abide by the constitutional provision. At one stage of rising controversy over the issue, an abnormal caretaker government took over the responsibility of the country. The Army-supported Fakhruddin-Moeen Uddin government ruled the country for approximately two years.
The hearing on the lawsuits regarding legality of the caretaker government at the Appellate Division of the Supreme Court began on 1 March. The court heard the submissions of senior lawyer Justice T.H. Khan, Dr Kamal Hossain, Barrister Rafiq-ul Haque, Dr M. Zahir, former attorney general Mahmudul Islam, Barrister M. Amirul Islam, Barrister Rokan Uddin Mahmud, and Barrister Azmamul Hossain QC as ameci curae (friends of the court). Among them, all amice curae excepting Azmalul Hossain QC opined for continuing the caretaker government system.
The Appellate Division of the Supreme Court, in its 17 May 2011 brief judgement, said the appeal was granted in a majority decision. The 13th Amendment-1996 has been declared as null and void and contradictory to the constitution forthwith. The 10th and 11th parliament elections can be held under the 13th Amendment. And at the same the security of the state and the people is the highest law. The parliament will have the liberty to enact amendment laws to cancel the appointment of the former chief justice and judges of the Appellate Division as the chief adviser of the caretaker government.
Amendment in Budget Session
The budget session of parliament begins on 22 May. There is a possibility of brining necessary amendments to the constitution in this long session of the house. Meanwhile, opinions were collected from various citizen forums for the amendments. A coordinated amendment proposal will be placed in parliament combining the opinions and verdict of the Supreme Court.
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