Caretaker govt system restored automatically

The Supreme Court has observed that the system of a non-party caretaker government (NPCG), led by the most recently retired chief justice, has automatically been restored in the constitution.

However, the system will come into effect only after the tenure of the current 13th parliament, according to the full text of the verdict uploaded to the Supreme Court’s website yesterday.

The observation was made in the 74-page full verdict by a seven-member Appellate Division bench headed by the then chief justice, Syed Refaat Ahmed. The bench unanimously delivered the ruling after allowing two separate appeals and four review petitions filed against the 2011 verdict.

The appellants and petitioners are BNP and Jamaat-e-Islami; rights organisations Shushashoner Jonno Nagorik, and Human Rights Support Society; and freedom fighter Mofazzal Islam from Naogaon.

On November 20 last year, the apex court delivered a short verdict overturning its judgment that had scrapped the caretaker government system in May 2011. Then chief justice ABM Khairul Haque led the seven-member bench that declared the 13th Amendment to the constitution null and void by a majority view.

After the verdict was announced, the 15th amendment to the constitution was passed by the National Parliament on June 30, 2011, bringing several changes, including the abolition of the caretaker government system. A gazette notification was published to this effect on July 3, 2011.

The caretaker government system was introduced in 1996 through the 13th amendment, which aimed to safeguard democracy by ensuring free and fair elections under an NPCG that would remain in power for only 90 days.

The full text of the verdict said the caretaker government system cannot be applied while a parliament is still in place, nor can it be applied retroactively to an interim government that began without it -- such as the one led by Prof Muhammad Yunus.

In the verdict, Chief Justice Syed Refaat Ahmed, the author of the judgment, observed that although the NPCG mechanism stands automatically restored, such provisions cannot be activated immediately.

“Therefore, the restored provisions shall lie dormant until enabling circumstances as specified in the restored provisions themselves come into play,” the verdict read.

Justice Md Ashfaqul Islam, a senior judge of the Appellate Division, agreed with the verdict.

He noted that the 13th amendment was passed in good faith under article 7 of the constitution. He added that the doctrine of necessity justified the caretaker government as a temporary safeguard for democracy, and that it preserved, rather than destroyed, the constitution’s basic structure.

About the judgment of the then Chief Justice Khairul Haque, who signed the verdict 16 months after his retirement, Justice Ashfaqul said, “In the full text of the verdict, Chief Justice ABM Khairul Haque, the author of the majority decision, sought to anchor his reasoning upon an expanded and somewhat personalised interpretation of the ‘basic structure’, confining it to a narrow vision of democracy and the rule of law.

“But this exposition, instead of preserving the constitution’s spirit, distorted the framers’ original intent. It unsettled the delicate constitutional balance that was meant to harmonise democratic governance with people’s supremacy. The judgment, in essence, subverted the inbuilt dictum of the constitution that democracy derives legitimacy not merely from form, but from the people’s effective participation in government through a transparent electoral process.”

Contacted, SC lawyer and constitutional expert Barrister Imran Siddiq told this correspondent that there is no need to amend the constitution or enact a new law to give effect to the caretaker government, as the SC judgment states that the relevant provisions will be automatically restored.

“The restored provisions will remain dormant until the dissolution of the 13th parliament, since only a dissolution can trigger the NPCG provisions as stipulated under Articles 58B [1] and 58C [2].

“However, the apex court judgment does not bar parliament from amending the form of the caretaker government system without undermining or dismantling the mechanism.”

Speaking to The Daily Star, SC lawyer and Jamaat’s counsel in the case Mohammad Shishir Manir said issues related to the 15th amendment, which abolished the NPCG system and introduced several significant changes to the charter, need to be settled to make the system fully functional.

“An appeal seeking cancellation of the entire 15th amendment is pending before the Appellate Division. The hearing of the appeal might be held after the court reopens [on April 19] following the ongoing annual vacation.”

Under the 15th amendment, Islam’s status as the state religion was retained and “Bismillahir Rahmanir Rahim”, with its translation “In the name of Allah, the Beneficent, the Merciful/ In the name of the Creator, the Merciful”, became part of the constitution.

The amendment also introduced provisions for holding parliamentary polls within 90 days before a parliament’s tenure ends and gave more powers to the war crimes tribunal.

It also made it mandatory to display the portrait of Sheikh Mujibur Rahman at all government offices. The historic speech of Sheikh Mujibur Rahman on March 7, 1971, was placed in the fifth schedule of the constitution through the 15th amendment.