Misinterpretation of court order on caretaker government

Regarding the (4-3) divided short order passed on 10 May 2011 by the Appellate Division of the Bangladesh Supreme Court, columnist Sohrab Hassan recently wrote in Prothom Alo that “if the parliament so wanted, the next two elections could be held under the caretaker government system” (Prothom Alo, 12 August 2023). On the same day, Dr. MAS Mollah also wrote in Jugantar that the Appellate Division had issued a short order on May 10, 2011“allowing elections to be held under such a government for two more terms, if the parliament so wanted.”

Immediately after the pronouncement of the short order, a similar statement was made on behalf of the government. It said: “The caretaker government system was abolished by the court. It is not possible to deny the court’s ruling. If the rule of law is to be ensured, the court’s order must be implemented. The court further observed that if the parliament so desired, the next two elections could be held under the caretaker government system. But the judiciary must not be involved in the caretaker system.”

Based on this statement of the government to carry out the court order, the provision for a non-party caretaker government was dropped and on 31 June 2011 the ninth Jatiya Sangsad (national parliament) passed the 15^th Amendment of the Constitution.

Incidentally, the detailed ruling of the Appellate Division published around 16 months later in 16 September 2012 is irrelevant in this regard. After all, on the basis of the short order of 10 May 2011, without waiting for the detailed ruling, the caretaker government system was abolished from the constitution.

In response to this stance of the government, Barrister Adeeba Khan wrote in the journal, International Review of Law, that “despite dissent from the opposition, civil society and voters, the Awami League led supermajority  parliament disregarded the direction given by the court that the neutral caretaker government should remain in place for two more national elections.” Researcher Ridwanul Huq in a research paper published in an international journal, termed the 15^th amendment as an ‘unconstitutional constitutional amendment’.

It is clear that the government and certain eminent persons had a different stand from and researchers regarding the short order passed down by the majority of judges of the Appellate Division headed by Chief Justice Khairul Haque. According to the government and the eminent persons, the 15th amendment to the constitution was passed one-sidedly in order to implement the short order of the Appellate Division. On the other hand, researchers said that the caretaker government system had been abolished in violation of the court's short order.

It is clear that the government and certain eminent persons have different interpretation of the short order of the Appellate Division, headed by the former Chief Justice Khairul Haque, than the researchers. According to the government and some eminent persons, the 15th amendment to the Constitution was passed in order to implement the short order of the Appellate Division. On the other hand, researchers are of the opinion that the caretaker government system was unilaterally abolished in violation of the court's short order.

Which of these opposing views is correct? We need to turn to the court’s short order to come to a conclusion. In its short order of 10 May 2011, the Appellate Division held: “The appeal is allowed by majority without any order as to costs. The Constitution (Thirteenth Amendment) Act, 1996 (Act 1 of 1996) is prospectively declared void and ultra vires the Constitution. The election to the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment on the age old principle, namely, … that which otherwise is not lawful, necessity makes lawful … safety of the people is the supreme law and… safety of the State is the Supreme law. The parliament, however, in the meantime, is at liberty to bring necessary amendments excluding the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the Non-Party Care-taker Government. The Judgment in detail would follow."

It is clear from the above ruling that the court did not give any condition of parliamentary approval to hold the tenth and eleventh parliament elections under the caretaker government. Quite to the contrary, in its short order the court gave its assent to the next two elections to be held under the caretaker government based on the doctrine of necessity and to ensure the safety of the people and the safety of the state. It is clear from the above that the caretaker government system was abolished by the ninth parliament in violation– not in compliance –of the Appellate Division’s short order.

The main reason behind the above contradictory positions is that the government viewed holding the tenth and eleventh parliament election under the caretaker government was merely an observation of the court and contingent upon the decision of the parliament. On the other hand, the researchers are of the opinion that the court directed the holding of next two elections under the caretaker government without any condition whatsoever.

Let us now look at the views of the practitioners. According to late Dr M Zahir, who was an eminent lawyer of our country, “the coming tenth and eleventh parliament to be held under the caretaker government was the order of the court, but the parliament could bring constitutional amendment not to involve justices was the court’s observation” (Bangladesh News, 10 May 2011).

Bangladesh Pratidin of 2 June 2011 quoted the former Attorney General Barrister Rafiq-ul Haque as saying, “The next two elections may be held under the caretaker government – that is an order of the court, not an observation. Even if the caretaker government system was declared illegal, the court’s judgment held that the necessity made it legal … The government in its own self-interests has tried to ignore an important part of the ruling by branding it as an observation … stating that the first part was the judgement, not the next part… it is puzzling  why they have said so … then again, many things you have to say when you are in politics. At times you have to say things even if you don’t believe them yourself.”

In a different context, the constitutional expert later Mahmudul Islam, in his book, Constitutional Law of Bangladesh, said: “Providing the rider clause giving life to the discredited (NCG) system for the next two parliamentary elections, the Appellate Division made judicial legislation interfering with the functions of Parliament assigned by the Constitution and thereby dented the well-established jurisprudence and acted contrary to the rule of law and separation of powers.” In this statement he criticised the court order to use the caretaker government system for the next two elections after declaring it unconstitutional.

In addition, our former law minister Abdul Matin Khasru admitted in the 24^th meeting of the Special Parliamentary Committee formed to amend the Constitution, that the court ordered holding the next two elections under the caretaker government, and that the removal of justices from the office of chief advisor was an observation. In the same meeting, the member secretary of the Special Parliamentary Committee, AK Mohammad Hossain, said that if the caretaker government system was not kept alive for the next two elections, then the court wouldn’t have made observation to remove the justices as its head. In this regard Barrister Anisul Islam Mahmud said, “That means we will have to hold the elections under the caretaker government.”

Based on the views of the experts and practitioners, reviewed above, it is clear that the 15^th amendment was passed in violation of the short order of the Appellate Division. In other words, it was an unconstitutional constitutional amendment.

There are also other reasons why the 15^th Amendment was an unconstitutional constitutional amendment. For example, although the 12^th amendment required holding a referendum, it was not done in enacting the 15th amendment. In addition, by adding Article 7B to the Constitution through the15th Amendment, almost a third of the Constitution is made unamendable. Amending the constitution, following Article 142, is a constitutional right of the members of parliament and no Parliament, as Mahmudul Islam observed, “can bind the successor parliament.” It is thus clear that the 15^th Amendment, which brought back the provision of holding election under the party in power and facilitated present government’s staying in power, is an unconstitutional constitutional amendment.

* Badiul Alam Majumdar is secretary, Shushashoner Jonno Nagorik (SHUJAN)