In the Supreme Court judgement that rescinded the caretaker government provision, former Chief Justice ABM Khairul Haque said the outgoing Cabinet in a 'truncated form' may run state affairs for the parliamentary elections.
In his summary, he observed that it was 'desirable' to dissolve Parliament 42 days prior to the elections as the Constitution stipulates and during that time, all employees of the State will work under the Election Commission.
Six judges of the seven-strong Supreme Court bench that declared the 13th constitutional amendment illegal signed the full verdict on Sunday night. Justice Haque, who headed that bench, signed the 342-page judgement on Sep 13.
Based on a majority decision, the Appellate Division on May 10 last year declared illegal the 15-year-old constitutional provision that mandated an elected government to transfer power to an unelected non-partisan caretaker administration to oversee a new parliamentary election on completion of its term.
Justice Haque was the then Chief Justice who wrote his part of judgment divided into 16 points. Justices Mahmud Hossain, SK Sinha and Mozammel Hossain agreed with him. Justices Andul Wahab Miah and Nazmun Ara Sultana differed while Justice Iman Ali left the matter for Parliament to decide.
Following the judgment, the Awami League-led Grand Alliance, on June 30 last year, abolished the caretaker government system allowing general elections under elected partisans.
The court also asked Parliament to amend the Constitution to make sure that former Chief Justices or any other Supreme Court judges are not chosen as head of caretaker governments in case the system is kept for another two parliamentary elections, which the apex court observed may be held under the old caretaker government system, if the government wishes.
The signing of the full verdict followed several meetings among the Justices throughout Sunday.
This is the first time a verdict has been written in mixed languages – Bengali and English. Usually the court writes verdict in English. Justice Khairul Haque wrote the main part of the verdict in Bengali and summarised it in 16 points. Justice Ali wrote 150 pages of the verdict.
"The highest law of Bangladesh is the Constitution, which has created all the institutions of Bangladesh and designations in those and bestowed necessary power and responsibility upon them," Justice Haque said in one of his points.
"People's sovereignty, independence of the Republic, democracy and judiciary are the principal foundations of the State and the Constitution. The Constitution of Bangladesh does not approve of any deviation from democratic State system. The Supreme Court by its authority can declare any unconstitutional law illegal or cancel the law," he added.
He said empowered by the Article 142 of the Constitution, Parliament could amend any part of the Constitution. But (Parliament) cannot hamper or curtail or amend the principal foundations of the State and the Constitution, Justice Haque added.
The 13th Amendment to the Constitution in 1996 curtailed the foundations of the State and the Constitution, therefore this is a controversial law and illegal, so it will be cancelled, he further said.
The former top judge gave some directions to steer clear of complexities that may arise over the holding of national elections after cancellation of the 13 Amendment.
"The Parliament should be dissolved with a rational period of time, such as 42 days, left to the national elections. However, before the new Cabinet takes over following the elections, the previous Cabinet will assume an abridged shape and run normal and general activities of the State."
"Though the Constitution (13th Amendment) law, 1996, stands illegal, Parliament by its deliberation and decision may undertake the initiative for constituting a caretaker government afresh and under a new format against the directions given above during the time of the 10th and 11th general elections," said Haque's judgment.
The judgment went on that the government employees would be under the control of the Election Commission during the period stretching from announcement of general election schedule until announcement of the result of the polls.
The opposition has been opposing the constitutional amendment claiming that the government partly implemented the verdict, but overlooked the other part on two elections under the caretakers.
The BNP wants reinstatement of the caretaker government provision alleging that free and fair elections cannot be held under a partisan government and insists that no election will be allowed under any partisan government.
Though the caretaker government was introduced first in 1996 after movement by the Awami League and its allies, the elections in 1990 were held under an interim government.
The BNP was forced to introduce the caretaker government system through a constitutional amendment for the first time. But the system came under scrutiny as the last military-backed caretaker government, which had a three-month mandate to hold elections, managed to linger on power for two years since 2007.
The High Court announced the caretaker government system legal after several people including Advocate M Salim Ullah challenged the 13th Amendment in 2004. They challenged the decision at the Appellate Division, drawing out the order.
In his summary, he observed that it was 'desirable' to dissolve Parliament 42 days prior to the elections as the Constitution stipulates and during that time, all employees of the State will work under the Election Commission.
Six judges of the seven-strong Supreme Court bench that declared the 13th constitutional amendment illegal signed the full verdict on Sunday night. Justice Haque, who headed that bench, signed the 342-page judgement on Sep 13.
Based on a majority decision, the Appellate Division on May 10 last year declared illegal the 15-year-old constitutional provision that mandated an elected government to transfer power to an unelected non-partisan caretaker administration to oversee a new parliamentary election on completion of its term.
Justice Haque was the then Chief Justice who wrote his part of judgment divided into 16 points. Justices Mahmud Hossain, SK Sinha and Mozammel Hossain agreed with him. Justices Andul Wahab Miah and Nazmun Ara Sultana differed while Justice Iman Ali left the matter for Parliament to decide.
Following the judgment, the Awami League-led Grand Alliance, on June 30 last year, abolished the caretaker government system allowing general elections under elected partisans.
The court also asked Parliament to amend the Constitution to make sure that former Chief Justices or any other Supreme Court judges are not chosen as head of caretaker governments in case the system is kept for another two parliamentary elections, which the apex court observed may be held under the old caretaker government system, if the government wishes.
The signing of the full verdict followed several meetings among the Justices throughout Sunday.
This is the first time a verdict has been written in mixed languages – Bengali and English. Usually the court writes verdict in English. Justice Khairul Haque wrote the main part of the verdict in Bengali and summarised it in 16 points. Justice Ali wrote 150 pages of the verdict.
"The highest law of Bangladesh is the Constitution, which has created all the institutions of Bangladesh and designations in those and bestowed necessary power and responsibility upon them," Justice Haque said in one of his points.
"People's sovereignty, independence of the Republic, democracy and judiciary are the principal foundations of the State and the Constitution. The Constitution of Bangladesh does not approve of any deviation from democratic State system. The Supreme Court by its authority can declare any unconstitutional law illegal or cancel the law," he added.
He said empowered by the Article 142 of the Constitution, Parliament could amend any part of the Constitution. But (Parliament) cannot hamper or curtail or amend the principal foundations of the State and the Constitution, Justice Haque added.
The 13th Amendment to the Constitution in 1996 curtailed the foundations of the State and the Constitution, therefore this is a controversial law and illegal, so it will be cancelled, he further said.
The former top judge gave some directions to steer clear of complexities that may arise over the holding of national elections after cancellation of the 13 Amendment.
"The Parliament should be dissolved with a rational period of time, such as 42 days, left to the national elections. However, before the new Cabinet takes over following the elections, the previous Cabinet will assume an abridged shape and run normal and general activities of the State."
"Though the Constitution (13th Amendment) law, 1996, stands illegal, Parliament by its deliberation and decision may undertake the initiative for constituting a caretaker government afresh and under a new format against the directions given above during the time of the 10th and 11th general elections," said Haque's judgment.
The judgment went on that the government employees would be under the control of the Election Commission during the period stretching from announcement of general election schedule until announcement of the result of the polls.
The opposition has been opposing the constitutional amendment claiming that the government partly implemented the verdict, but overlooked the other part on two elections under the caretakers.
The BNP wants reinstatement of the caretaker government provision alleging that free and fair elections cannot be held under a partisan government and insists that no election will be allowed under any partisan government.
Though the caretaker government was introduced first in 1996 after movement by the Awami League and its allies, the elections in 1990 were held under an interim government.
The BNP was forced to introduce the caretaker government system through a constitutional amendment for the first time. But the system came under scrutiny as the last military-backed caretaker government, which had a three-month mandate to hold elections, managed to linger on power for two years since 2007.
The High Court announced the caretaker government system legal after several people including Advocate M Salim Ullah challenged the 13th Amendment in 2004. They challenged the decision at the Appellate Division, drawing out the order.
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