South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Parliament has to play a responsible role in finding an alternative to the caretaker government system, said some eminent jurists of the country following the Supreme Court’s nullification of the constitution’s 13th amendment yesterday.

Some former advisers to caretaker governments and some civil society members however think there will be no alternative to the interim government system until the political culture of the country is changed.

Barrister M Amir-Ul Islam said both ruling and opposition political parties have to assist parliament in finding an alternative to making former chief justices and other former judges part of caretaker governments.

If the political parties fail to do so, the responsibility will ultimately keep falling on the last retired chief justice, he said.

There is no alterative to holding free and fair elections for upholding the constitution and keeping democracy stable, he added.

Dr M Zahir said the SC observed that the parliament may amend the law regarding caretaker governments, and it is now the matter of the parliament whether it will accept the observation.

Barrister Rokanuddin Mahmud said if the parliament does not amend the related constitutional provisions, the next two elections will be held under the existing caretaker government system.

The parliament is not bound to implement the SC observations, he said.

Barrister Rafique-ul Huq, and President of the Supreme Court Bar Association Khandker Mahbub Hossain, termed the SC verdict self contradictory as it declared the 13th Amendment Act illegal, but suggested holding the next two general elections under this law.

Rafique-ul Huq, however, said Chief Justice ABM Khairul Haque and other Appellate Division judges showed their broadmindedness in the verdict, by saying that judges should not be involved in caretaker governments.

Khandker Mahbub Hossain apprehended that the country’s political arena will become unstable due to the SC verdict, as the verdict did not give any specific guideline for holding general elections.

Barrister MI Farooqui, the lawyer for Abdul Mannan Khan whose appeal against the 13th amendment resulted in yesterday’s SC verdict, expressed satisfaction over the judgment, saying the system of caretaker government is like a form of martial law which suspends some provisions of the constitution.

Attorney General Mahbubey Alam said if the next two general elections are not held under caretaker governments, chaos and unrest will envelope the country, and the credibility of those elections will be questioned.

The concern for keeping the chief justice and the judiciary impartial is reflected in the verdict, he said.

The parliament can amend the constitution at any time incorporating provisions for excluding judges from caretaker governments, he added.

Former adviser to a caretaker government M Hafiz Uddin Khan told The Daily Star that although the caretaker government system contradicts the democratic system, the situation that necessitated the system has yet to be changed.

“In fact the situation has worsened in the political arena, and there is no sign that it will improve in the next ten years, unless the mindset of the political parties change drastically.”

The politics of the country might see more conflicts in future, if the parties fail to reach a consensus on how general elections will be held, he apprehended.

Former Dhaka University vice-chancellor Prof Emajuddin Ahmed said there is no alternative to the caretaker government system until a sense of mutual confidence grows between the main two parties of the country.

Unless there is a positive change in the political culture of the country the interim government system should not go, he said.

Another former adviser to a caretaker government Dr Akbar Ali Khan said although the judgment did not eliminate the caretaker government system for at least the next two general elections, it did create an uncertainty about the role of the system.

The uncertainty will not fade away unless the constitution is amended, he said adding that the provision of caretaker governments in the constitution should be amended in light of the judgment.

The political parties should engage in discussions to find out a formula for holding general elections, he said.

Dhaka University Prof Asif Nazrul said the Supreme Court has jurisdiction to declare the caretaker government system illegal and unconstitutional, but it does not have any authority to direct that the next two elections will be held under such illegal and unconstitutional governments.

In future, the legality of elected governments will be questioned based on this judgment. Its advice to change the formation of caretaker governments will lead to further controversy, if based on the judgment, the ruling party unilaterally introduces a new form of caretaker government, he said.

Source: The Daily Star – 11.05.2011