Kamal argues before SC for non-party caretaker system

Senior Supreme Court lawyer Kamal Hossain on Monday argued before the Appellate Division of the Supreme Court for saving the system of non-party caretaker government as it was introduced through the 13th amendment to the Constitution in 1996 following a mass movement.
He argued that the non-party caretaker system had to be introduced as neither the civil society nor the political parties outside the government thought that free, fair and neutral polls could be held under a political government.
During hearing of an appeal against the High Court verdict that had declared the thirteenth amendment valid, Kamal Hossain said that if there were flaws in the caretaker government system it could be removed through consultations, but the apex court should not question the legality of the system considering ‘the interest of the people’.
Kamal Hossain, one of the writers of the constitution, was submitting his statement as amicus curiae before a seven-judge bench of the Appellate Division, chaired by the chief justice ABM Khairul Haque.
The court adjourned the hearing till Monday as his argument remained incomplete.
He also said that the sixth parliament on March 25, 1996 unanimously passed a bill providing for the election time caretaker government.
Kamal Hossain also stated that the election time caretaker was introduced following widespread demand and support from the civil society in the interest of holding elections more freely because past governments could not hold elections as freely as they should be.
He said that as three parliamentary elections had been held under caretaker governments since the sixth parliament had introduced the system the question of constitutional continuity is also involved here.
Kamal Hossain said that neither the election commission nor the court ever questioned the legality of the sixth parliamentary election.
Therefore, Kamal argued that as the guardian of the Constitution, the Supreme Court should not do away with the caretaker system questioning whether or not the 13th amendment to Constitution brought by the sixth parliament was legal.
Kamal argued that for the Supreme Court, as the guardian of the Constitution, the question is not who is legal or illegal.
He said, now it is for the Supreme Court to protect the interest of the people and to preserve the Constitution, and not to facilitate the interests of any political party.
He said, if there are some flaws in the caretaker system, it could be rectified through consultations.
Kamal pointed out that there was no controversy among the people about the caretaker system.
He said that the caretaker system was introduced to discourage power grabbers who wanted to cling to power for eternity by manipulating elections.
He said hinting at ousted military dictator General Ershad that once in power people think that they would be in power forever.
He said that the caretaker system was introduced to discourage all such tyrannical aspirations of rulers who want to manipulate elections to hold on to power for eternity.
Kamal reminded the court about the days when political parties began a mass movement to pull down the government elected on February 15, 1996 under the supervision of BNP government.
He said it is very relevant for the court to consider in what context and circumstances the system of caretaker government had to be introduced in Bangladesh.
He said it is quite pertinent to recall in what context the sixth parliament had to introduce the ‘non-party caretaker government’ by amending the Constitution for holding free, fair and impartial elections.
On January 5, 2000, three Supreme Court lawyers had filed a writ petition challenging the legality of the 13th amendment to the Constitution under which Bangladesh got the system of non-party caretaker system.
They said that the unelected caretaker system was in conflict with the democratic system of the government and the basic spirit of the Constitution which requires   an elected government to run the administration at every tier of the Republic.
A special High Court bench of Justice Md Joynul Abedin, Justice Md Awlad Ali and Justice Mirza Hussain Haider, in a verdict delivered on August 4, 2004 had declared the 13th amendment to the Constitution as lawful.
The court had given the verdict with the observation, ‘if democracy is accepted as a basic structure of the Constitution,’ the thirteenth amendment did not destroy the basic structure.
Of the three petitioners, only Abdul Mannan Khan is still a Supreme Court lawyer, while Ruhul Quddus is an additional judge of the High Court Division and M Saleem Ullah is dead.